Macedo v Chief Commissioner of State Revenue

[2015] NSWCATAD 193

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Macedo v Chief Commissioner of State Revenue [2015] NSWCATAD 193
Hearing dates:	On the papers
Decision date:	22 September 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Verick Senior Member
Decision:	The Chief Commissioner’s application to revoke leave granted to the applicant to be represented by an agent is refused.
Catchwords:	STATE REVENUE – Stamp Duties - Representation by agent – Also principal witness – Interlocutory Proceedings to revoke leave previously granted - Civil and Administrative Tribunal Act 2013, s 45 and Civil and Administrative Tribunal Rules 2014, Rule 32
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Stamp Duties Act 1920 Administrative Decisions Tribunal Act 1997
Cases Cited:	Haddad v Chief Commissioner of State Revenue (Unreported) 11 November 2009 (NSWADT) Marshall v Dental Décor Pty Ltd t/as Westmead Gentle Dental [2010] NSWADT 173 Department of Justice and Attorney-General v AY (GD) [2010] NSWADTAP 17
Category:	Procedural and other rulings
Parties:	Deirdre Macedo (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: A Rider (Respondent)     Solicitors: R Ross (Applicant) Crown Solicitor (Respondent)
File Number(s):	1410611

Reasons for decision

1. On 16 December 2014, the Applicant granted her brother, Mr Raymond Ross, consent to represent her and he has proceeded to act as agent for her pursuant to the provisions found in s 45 of the Civil and Administrative Tribunal Act 2013 (“the Act”).

2. However, the Chief Commissioner now seeks an interlocutory order to revoke the leave previously granted to the Applicant to be represented by her brother.

3. The principal matter is fixed for a hearing on 6 October 2015. It concerns an assessment made by the Chief Commissioner in relation to a copy of a Trust Deed pursuant to the provisions of the Stamp Duties Act 1920. The Applicant’s case is that the copy was not tendered for stamping but merely tendered in error in a land tax matter concerning her brother, Mr Raymond Ross.

4. Mr Ross has, prior to this application, attended on behalf of the Applicant the direction and preliminary hearings relating to the principal matter.

5. The Applicant, on 28 May 2015, filed and served her evidence in the principal matter, which solely comprised an affidavit sworn by her brother, Mr Ross.

Relevant Legislative Provisions

6. As at the date of the Chief Commissioner’s application, s 45 of the Act, relevantly, provided:

45   Representation of parties

(1)   A party to proceedings in the Tribunal:

(a)   has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b)   may be represented by another person only if the Tribunal grants leave:

(i)   for that person to represent the party, or

(ii)   in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.

(3)   The Tribunal may at its discretion:

(a)   grant or refuse leave under subsection (1)(b), and

(b)   revoke any leave that it has granted.

7. In dealing with an application under s 45 of the Act, the Tribunal is required to have regard to Rule 32 of the Civil and Administrative Tribunal Rules 2014. It is in the following terms –

32   Granting and revocation of leave for a person to represent party

(1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to:

(a)   such of the following circumstances as it considers are relevant to the proceedings:

(i)   whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal,

(ii)   whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings,

(iii)   whether the proposed representative is vested with sufficient authority to bind the party, and

(b)   any other circumstances that it considers relevant.

(2)   The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that:

(a)   the party no longer consents to the person representing the party, or

(b)   the person applied for leave to represent that party without the consent of the party, or

(c)   the person does not have the qualities referred to in subrule (1) (a) (i) or (ii) to act as the party’s representative, or

(d)   the party is, or has become, incapable of instructing the representative, or

(e)   any other grounds are present that the Tribunal considers sufficient to justify the revocation.

8. Rule 32 does not in any way affect the scope of the discretion given to the Tribunal under s 45 of the Act but provides guidance as to what considerations need to be taken into account under s 45 of the Act to grant leave or revoke leave previously granted.

Submissions

9. Essentially, the Chief Commissioner seeks the order “to ensure that the Applicant’s best interests were served in the conduct of her case”.

10. Mr Rider, for the Chief Commissioner, submits that, on what was said by the Tribunal in Haddad v Chief Commissioner of State Revenue in a Ex Tempore Decision (not reported) on 11 November 2009, leave should be revoked in this matter because the Applicant is being represented by an agent who is not a legal practitioner and “where the person is also giving evidence in support of the party’s case”.

11. Mr Rider also submits that in Marshall v Dental Décor Pty Ltd t/as Westmead Gentle Dental [2010] NSWADT 173 “the Tribunal has refused leave for a person who is not an Australian legal practitioner to represent the party where that person had a personal grievance with the Respondent and/or his legal representative”. And that, in this matter, “it is apparent that Mr Ross has such a grievance”. This, Mr Rider says, occurred at a preliminary hearing held on 13 March 2015 before Senior Member Walker in relation to the principal matter when Mr Ross made certain aspersions against counsel.

12. Mr Ross opposes the application on behalf of the Applicant on various grounds. They include –

1. That at various hearings in relation to the principal matter and a previous personal matter he has demonstrated sufficient degree of competence to provide effective representation for his sister in this matter.

2. He “has already been crippled by the cost” of various matters at the Tribunal and is not able afford to engage counsel to represent his sister.

3. That his sister has “only primary to lower secondary schooling and is intimidated by the legal process and is also resentful and reluctant to involve herself in something she sees as ‘not her problem’”.

4. The principal matter is essentially a claim by him to establish that he is the real owner of the property in question.

5. He is “the only person who can give evidence and tender the business records relating to the purchase entirely handled by him, whereas the applicant beyond agreeing to hold the property in trust for her brother at the time of purchase has over 18 years had NIL involvement with the property”.

13. Mr Ross submits that the decision in Haddad is distinguishable from the facts in this matter. Mr Haddad was intending to give evidence as to his opinion on various matters and was exposing himself “to be cross examined on it in the usual robust way”. In this matter, “the sole evidence is the tender of business documents most of which are already in evidence and already tested in related proceedings”.

14. He further submits that the decision in Marshall is also distinguishable. In that case, it was submitted, “the Tribunal was not satisfied on the evidence that Mr Marshall had the competence to provide effective representation before it” and the Tribunal also referred to his “acrimonious relationship with witnesses”.

15. Mr Ross also claimed that he has “had an extremely courteous and cordial relationship with the various crown solicitors” and “officers with the OSR” with whom he has “earnestly discussed the issues and means of resolving the stand off”.

Consideration

16. Under s 45(1)(a) of the Act, a party to a proceedings in the Tribunal has the carriage of the party’s own case and is not entitled to be represented by any person. The provision sets out the normal rule for an applicant to be self-represented at a hearing.

17. However, s 45(1)(b) of the Act gives the Tribunal power to grant leave for a party to proceedings in the Tribunal to be represented by another person or for the party to be represented by an Australian legal practitioner.

18. The Tribunal is given a discretion under s 45(3)(a) of the Act to grant or refuse leave for a party to be represented by another person or legal practitioner. In addition, the Tribunal has power under s 45(3)(b) to revoke any leave that the Tribunal has granted. The wide discretion provision in the Act does not prescribe any considerations that have to be taken into account in exercising the discretion.

19. But Rule 32 of the Civil and Administrative Tribunal Rules 2014 sets out the various considerations that the Tribunal is required to take into account to grant or revoke leave.

20. In Department of Justice and Attorney-General v AY (GD) [2010] NSWADTAP 17, his Honour O’Connor DCJ, sitting as the President of the Administrative Decisions Tribunal, usefully explained the role of an agent, in relation s 71 of the Administrative Decisions Tribunal Act 1997, which was in similar terms to s 45 of the Act –

42 The grant of leave to represent gives the agent a status in the proceedings equivalent to that of a lawyer on the record. That agent holds a conferral of authority that extends beyond the hearing room, and makes the agent the person with whom an opposite party or the opposite party’s representative must deal, in the range of matters that surround the preparation for and conduct of a hearing. The agent is the person with whom any negotiations are to be conducted. Those communications and negotiations will occur away from the gaze or oversight of the tribunal or court. … As I see it, when granting leave to a non-lawyer agent, the Tribunal should be cognisant of the scope of authority that the grant of leave furnishes, and the importance of having some assurance that the agent will adhere to appropriate standards in direct dealings with the other side.

21. His Honour, in AY, also noted that the “ultimate consideration is whether the grant of leave will promote the interests of justice broadly understood”. In his Honour’s opinion:

“Those interests include the interest of a party in having their case put effectively, the interest of the opposite party in not having a method and style of representation employed which exacerbates cost, expense and trauma to no positive end and the interest of the community as a whole in having the justice system deal with disputes in a cost efficient, timely and conclusive way.”

22. In AY, his Honour revoked the leave previously given to the agent on the ground that there was “ample material” to support the conclusion that the interests of justice was not likely to be advanced by the involvement of the agent as agent of the Applicant. The agent had previously represented himself, the applicant and others in various proceedings against government agencies and had a history of “engaging in bullying and threatening communications” with Crown Solicitor’s Officers in those proceedings. His own submissions were “replete with abusive comments on the competence of the solicitors” and made allegations in language “extremely intemperate” that they had engaged in unprofessional conduct. Against that factual background, his Honour held that, in his view, the agent had “put in issue his ability to perform the role of an agent in a detached manner”.

23. In this matter, the Chief Commissioner’s objection to Mr Ross representing the Applicant at the hearing is, firstly, on the ground that Mr Ross will also be giving evidence in support of the Applicant’s case. The objection is essentially that the Applicant’s interests will not be best served in those circumstances. This objection is made largely on the basis of what was said by the Administrative Decisions Tribunal in an Ex Tempore Decision in Haddad in relation to a similar provision, s 71 in the Administrative Decisions Tribunal Act 1997.

24. In that case, Mr Haddad “a graduate of a bachelor of science degree from Macquarie University with some competence in physics” and having undertaken a review of the documents provided by the Chief Commissioner and Energy Australia, he was intending to give expert evidence as to the electricity usage at the property which the Applicant had claimed was her residence during the years in issue. The Tribunal noted that the evidence relating to energy usage was “contentious” and Mr Haddad was “likely to be cross-examined on it in the usual robust way”. In those circumstances, the Tribunal took the view that it was not appropriate for him to represent his wife as an agent.

25. I am of the opinion that Haddad can be distinguished. I do not think the decision has a general application. Section 45 is premised upon a party being self-represented at a hearing of an application before the Tribunal. In most cases where a party is self-represented a similar problem would emerge if the party intends to give evidence as well. In Haddad, the Tribunal was largely influenced by the special facts. Mr Haddad was intending to give evidence as an expert and attend the hearing also as an agent for the Applicant. In my opinion, Haddad should be confined to its own special factual background.

26. In this matter, Mr Ross indicates that, “the sole evidence is the tender of business documents most of which are already in evidence and already tested in related proceedings”. There is no evidence that any serious contentious evidence will be before the Tribunal and subject to robust cross-examination.

27. The Chief Commissioner’s second ground for the objection relates to Mr Ross’ “personal grievance with the Respondent and/or his legal representatives”.

28. I accept that, at the hearing before Senior Member Walker, Mr Ross made some unwarranted and most inappropriate aspersions against counsel. But the transcript also records, when warned by the Senior Member that aspersions against counsel were not appropriate, Mr Ross did immediately apologise and accepted that they were not appropriate.

29. However, if such conduct had been repeated and not recognised as being inappropriate by Mr Ross, then I think, his conduct would have put in issue his ability to deal fairly with counsel for the Chief Commissioner. But it was one-off reaction by Mr Ross and he quickly acknowledged his error.

30. In Marshall there was ample evidence that Mr Marshall had an ongoing personal dispute with two of the witnesses and had made threats of violence. The Tribunal, in refusing to grant leave to Mr Marshall to appear on behalf of his wife in a discrimination matter, accepted that the evidence raised serious grounds of his ability to deal fairly with at least the two witnesses.

31. Other than the unwarranted aspersions made before Senior Member Walker, there is no other evidence to suggest that Mr Ross will not deal fairly and honestly with the Tribunal and other persons involved in the proceedings. Mr Ross’ own evidence is that he “has had an extremely courteous and cordial relationship” with various officers of both the Crown Solicitor and the Chief Commissioner.

32. Both in AY and Marshall, the facts fell in the extreme category for consideration. I think this matter on the facts can be distinguished from the both AY and Marshall.

33. It was noted by his Honour in AY that in “the usual case this Tribunal would not be inclined to interfere with the party’s choice of representative”.

34. A similar approach would apply in this Tribunal. Leave should be refused or revoked only in those cases where there is ample evidence that support the conclusion that the interests of justice are not likely to be advanced by the involvement of the agent to prosecute the applicant’s case.

35. In this matter, Mr Ross is, in reality, prosecuting his own case to establish that he is the real owner of a property, which is currently in his sister’s name. From the papers before the Tribunal, there appears to be no dispute between the siblings as to the ownership of the property. In fact, Ms Macedo accepts that her brother is the owner of the property although the title is in her name. There is no conflict of interest between the applicant and Mr Ross.

36. Mr Ross has demonstrated in the written submissions lodged by him on behalf of the Applicant that he has sufficient knowledge of the issues in dispute to enable him to represent the Applicant effectively before the Tribunal.

37. Having considered the Chief Commissioner’s objection in the context of all the evidence before the Tribunal, I am not persuaded at this stage that the leave given to Mr Ross to appear on behalf of the Applicant should now be revoked.

38. I will accordingly dismiss the Chief Commissioner’s application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

24 September 2015 - Coversheet amended to correct hearing date to "On the papers"

Decision last updated: 24 September 2015