Lewis v Queensland Building Services Authority

[2009] QCAT 41

CITATION: Lewis v Queensland Building Services Authority [2009] QCAT 41

PARTIES:   David Lewis

v

Queensland Building Services Authority

APPLICATION NUMBER:            QR260-09     

MATTER TYPE:   

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF:   Dr Bridget Cullen Mandikos

DELIVERED ON:   14^th December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   

1. In the event that the Applicant elects to be represented by an Australian legal practitioner, leave is granted for this purpose, and the Respondent is also granted leave to appear with legal representation.  The Applicant is to notify the Respondent and the Tribunal of the name of any legal representative for these purposes on or before 4.00 pm on Friday, 22^nd January 2010.

1. In the event that the Applicant elects to represent himself in the matter, and does not notify the Respondent and Tribunal of the name of any legal representative for these purposes on or before 4.00 pm on Friday, 22^nd January 2010, both parties are to represent themselves in the matter.

CATCHWORDS: Leave to be represented, s43 of the Queensland Civil and Administrative Tribunal Act 2009.

APPEARANCES and REPRESENTATION (if any):

On the papers.

REASONS FOR DECISION

1. On 12^th October 2009, the Applicant, David Lewis, filed an application for review with the then Commercial and Consumer Tribunal of a decision by the Queensland Building Services Authority (“QBSA”), dated 20^th August 2009, refusing the Applicant’s application to be categorised as a permitted individual for a relevant event within the meaning of s 56AD of the Queensland Building Services Authority Act 1991.  The Applicant’s affidavit of service was filed with the then Commercial and Consumer Tribunal on 16^th October 2009. 

1. On 30^th November 2009, the parties filed a jointly signed “Form 6 – Consent Notice” in the then Commercial and Consumer Tribunal, asking that the Tribunal permit legal representation of the parties in the matter.

1. The Commercial and Consumer Tribunal has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal: section 256 Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).

1. Section 43 of the QCAT Act provides that the parties are to “represent themselves unless the interests of justice otherwise require.”

1. The material before me indicates that the Applicant does not intend to have legal representation, but intends to be assisted by a “friend” who is not a witness before the proceedings.  The material also indicates that the Respondent intends to be legally represented, but I do not have a copy of the Respondent’s letter of 13^th November 2009, wherein the Respondent has apparently advised the Applicant of this intention.

1. Section 43(4)(b) of the QCAT Act provides that a party can not be represented in a proceeding by someone 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.” I do not have any details indicating the suitability of the Applicant’s proposed assistance.

1. In the circumstances, I am left to consider whether the interests of justice warrant my allowing the Respondent, an experienced party to similar applications, and the Applicant, a non-legally represented individual, leave that essentially will be of benefit to the Respondent only.

1. I do not think that, in the circumstances, the interests of justice warrant my granting leave for the parties to be represented, at least not on the terms they propose.  In particular, I have placed considerable reliance in making this decision on the Applicant’s assertion that he will not be obtaining legal representation. 

1. This matter is a serious one, with the potential to affect the Applicant’s ability to earn a living as a licensed contractor.  I have considered the Applicant’s consent to the Respondent’s obtaining legal representation, but with respect, do not think it appropriate for this Tribunal to place the Applicant in a situation with there is an “information deficit” that he may not fully appreciate by granting the leave requested.

1. As the Applicant’s proposed “friend” for purposes of legal assistance is not an Australian legal practitioner, I do not consider, in the absence of any details as to the “friend’s” suitability, them to be an appropriate person to satisfy the conditions contained in s 43(4)(b) of the QCAT Act.

1. In the event that the Applicant elects to be represented by an Australian legal practitioner, leave is granted for this purpose, and the Respondent is also granted leave to appear with legal representation.  The Applicant is to notify the Respondent and the Tribunal of the name of any legal representative for these purposes on or before 4.00 pm on Friday, 22^nd January 2010.

1. In the event that the Applicant elects to represent himself in the matter, and does not notify the Respondent and Tribunal of the name of any legal representative for these purposes on or before 4.00 pm on Friday, 22^nd January 2010, both parties are to represent themselves in the matter.