Lida Build Pty Ltd v Miller
[2010] QCATA 17
•20 April 2010
| CITATION: | Lida Build Pty Ltd v Miller [2010] QCATA 17 |
| PARTIES: | Lida Build Pty Ltd (Applicant) |
| v | |
| Peter & Susan Miller (Respondents) |
| APPLICATION NUMBER: | APL017-10 |
| MATTER TYPE: | Application for Leave to Appeal |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | President |
| DELIVERED ON: | 20 April 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE:
Application for leave to appeal refused
| CATCHWORDS : | BUILDING DISPUTE – LEAVE REQUIRED FOR LEGAL REPRESENTATION – Queensland Civil and Administrative Tribunal Act 2009, s 43 – MEANING AND EFFECT - whether dispute concerning the construction of a swimming pool involves complex questions of fact or law Queensland Civil and Administrative Tribunal Act 2009, s 43 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| RESPONDENT: |
REASONS FOR DECISION
This case is a building dispute, about a swimming pool. It began in one of QCAT’s predecessors, the Commercial and Consumer Tribunal, in July 2009. Various things happened in that Tribunal including, relevantly, a counter claim from the respondents Mr and Mrs Miller and an order of 11 August 2009 requiring that the parties file and exchange statements of evidence from them and their witnesses, and all material documents. The parties have done that and the pile of documents is now voluminous.
Lida Build Pty Ltd applied to QCAT to be legally represented in the matter. By direction, the parties filed and exchanged submissions about that question which was then determined on the papers by a QCAT member on 28 January 2010, who refused it. Lida Build now applies for leave to appeal that decision. Leave is necessary because it is not QCAT’s final decision in the proceeding: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii). By further direction, the application for leave to appeal is to be determined on the papers, and the parties have filed written submissions.
Lida Build asserts that the learned member was mistaken when she concluded that the dispute between the parties did not involve complex questions of fact of law, or that the presence of a legal representative in this proceeding would not necessarily promote procedural fairness or assist the Tribunal to a material degree to achieve its statutory objects; or, advance the interests of justice as contemplated by the Act[1].
[1] Lida Build Pty Ltd v Miller, unreported, BD314-09, decision 28 January 2010
The learned member traversed s 43 of the QCAT Act and observed (and I agree) that its announced, main purpose is to have parties represent themselves in QCAT proceedings unless the interests of justice require otherwise. In deciding whether to give a party leave to be represented the Tribunal may consider certain nominated circumstances including, relevantly here, whether or not the proceedings are likely to involve complex questions of fact or law.
As the learned member also observed, s 28 of the QCAT Act requires that the Tribunal must act fairly, must act in accordance with the substantial merits of the case, must observe the rules of natural justice, must act with as little formality and technicality as proper consideration of the issues permit, and must ensure that all relevant material is disclosed as far as is practical[2].
[2] QCAT Act s 28(2) and (3)
The learned member did not refer to s 29, which also requires that the Tribunal must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions, and any decision of the Tribunal relating to the proceeding. While this provision largely reflects and embodies what the courts have said in recent years is the nature of the duty owed by the judicial system to, at least, self representative litigants, it also suggests that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case[3].
[3] The nature of the duty owed by courts to self represented litigants was helpfully examined and discussed by Bell J in Tomasevic v Travaglini [2007] VSC 337
Lida Build has provided ten pages of written submissions in support of its application for leave to appeal which have, it might be observed, a lawyerly tone. Mr and Mrs Miller have provided a typewritten response in terms suggesting it is their own work but, also, reflecting a fair grasp of the issues in the matter and those raised in the applicant’s submissions. Lida Build points to a number of aspects of the case which, it says, show that both the legal and factual issues this Tribunal needs to resolve are of a complex nature. It then asserts, in addition, that the Millers will not be disadvantaged even if Lida Build is legally represented, but they are not; and, that legal representation may assist in confining costs by focusing the dispute on relevant issues, and reducing the hearing duration.
The complex legal points may be summarised as the terms of the original contract between the parties (and the documents which should properly form part of it); whether or not Lida Build has an entitlement to ‘variation claims’; whether or not there were delays in the notice and timing of the Millers’ claims for liquidated damages; and, allegations of negligence. Lida Build also raises, it is said, a restitutionary claim based on principles of unjust enrichment as an alternative to claims for variations under the contract. It is also said that there is a large volume of material to be considered, and a significant number of factual contests.
Section 43 involves a discretion that will fall to be considered in the particular circumstances of each particular case. Here, firstly, it is apparent from the Millers’ submissions that they have not had any difficulty in grasping the nature of Lida Build’s assertions or their implications although the respondents are not, it appears, lawyers themselves.
Second, the disputes between the parties appear to devolve primarily to questions of fact, from which relatively uncontentious legal conclusions will follow. An example is the assertion by Lida Build that the Millers are not entitled to liquidated damages if the works were delayed because of the Millers’ actions. On its face the issue involves a factual dispute, followed by the construction of a straightforward contractual provision. The same comment applies to Lida Build’s claims for variation claims. These are common disputes in building cases, with neither novelty nor obvious legal complexity.
Third, Lida Build now asserts the hearing will require twelve days and involve at least 25 witnesses when, as the Millers point out, in Lida Build’s material supplied in response to the earlier order of the Commercial and Consumer Tribunal it lodged a statement by the applicant but no witness statements, nor any mention of possible witnesses to be called.
Lida Build’s claim is for about $60,000. The Millers’ counter claim is for $72,000. The notion that a case involving quantum at that level should consume twelve days of hearing time is troubling. Certainly that prospect is, on its face, in probable discord with the aims and philosophy expressed in s 3 of the QCAT Act which requires that this Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.
It follows that nothing in the submissions delivered for Lida Build is persuasive that the learned member was wrong to conclude that the questions which might come before this Tribunal for adjudication ‘…necessitate input from a legal representative’. Subsequent submissions have the unfortunate effect of raising the spectre of the converse – that, in fact, the presence of lawyers may carry a risk of adding needless complexity, and much greater delay and cost, to what is essentially a simple dispute about the construction of a swimming pool and its surrounds.
The question whether legal representation should have been allowed turned very much on the particular circumstances of this case. The manner in which the learned member chose to exercise the discretion under s 43 in those circumstances has not been shown to involve any error. There is no question of importance about which further argument and a decision of the QCAT Appeal Tribunal would be of public advantage[4]. For these reasons, the application for leave to appeal is dismissed.
[4] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
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