Lyons v Queensland Building Services Authority

[2010] QCAT 306

CITATION: Lyons v Queensland Building Services Authority [2010] QCAT 306

PARTIES:	Darryl John Lyons
v
Queensland Building Services Authority

APPLICATION NUMBER:   OCR047-10

MATTER TYPE: General administrative review matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane 

DECISION OF: Peta Stilgoe

DELIVERED ON: 30 June 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Leave to both parties in this proceeding to be legally represented

CATCHWORDS :  Application for leave for legal representation – whether complex questions of law and fact – where both parties seek representation – where Authority gives undertaking as to costs of proceeding – where application relates to permitted individual – section 43 QCAT Act – section 51AD QBSA Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Mr Lyons has made an application to set aside the Authority’s decision to refuse to categorise him as a permitted individual. Both parties to the proceeding have applied for leave to be legally represented.

2. Section 43(1) of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) states that the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise.

3. Section 43(3) sets out the matters the tribunal may consider. Two of the four matters are satisfied; the Authority is a State agency and the parties have agreed to legal representation. If representation is granted, both parties will be represented. The only matters for me to decide, therefore, are whether there are complex questions of fact or law and the interests of justice require representation.

4. Both parties agree that a consideration of section 51AD of the Queensland Building Services Authority Act will involve a consideration of a significant body of case law and a financial and insolvency analysis. I have considered the statement of reasons and agree that the issues to be determined by the tribunal are significant.

5. I am mindful of the fact that Mr Lyons’ livelihood may rest on the result of this proceeding. The tribunal is more likely to grant legal representation when a person’s continued career or employment is at stake.

6. Both parties’ lawyers have expressed the view that they can assist the tribunal in the determination of the proceedings. In particular, the Authority has submitted that it will ensure that all relevant evidence is before the tribunal, even if the evidence is contrary to the interests of the Authority. The tribunal appreciates sensible and thoughtful contributions from members of the legal profession which assist it in complying with its obligations under the QCAT Act to deal with matters in a way that is accessible, fair, just economical, informal and quick [section 3(b)] and that all parties understand the process, assertions and decisions of the tribunal [section 29(1)].

7. One of the disincentives in the tribunal giving leave for legal representation is that the costs of lawyers’ involvement often gets in the way of sensible outcomes. In its submission, the Authority stated it will not apply for costs in the proceeding unless Mr Lyons conducts the matter in a manner that is frivolous, vexatious or an abuse of process. That submission is of considerable comfort to the tribunal. I am confident that Mr Lyons’ representatives will act accordingly.

8. I give leave to both parties in this proceeding to be legally represented.