Majestic Pools & Landscapes Pty Ltd v Murray

[2010] QCAT 252

CITATION:Majestic Pools & Landscapes Pty Ltd v Murray [2010] QCAT 252

PARTIES:   Majestic Pools & Landscapes Pty Ltd

v

Mr Raefe Murray

APPLICATION NUMBER:            BD255-07

MATTER TYPE:   Building disputes

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF:   Kerrie O’Callaghan, Senior Member

DELIVERED ON:   18 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Leave for legal representation granted for reviews and directions hearing: leave for legal representation for the hearing of the application refused.

CATCHWORDS: Section 43 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Tribunal by the respondent (Mr Murray) seeking leave to be represented in the proceedings. The applicant Majestic Pools & Landscapes Pty Ltd (Majestic) opposes the application.

ISSUES AND THE LEGISLATION

1. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides, where relevant to these reasons, as follows:

(1)   The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.

(2)   In a proceeding, a party—

(a)may appear without representation; or

(b)may be represented by someone else if—

(i)the party is a child or a person with impaired capacity; or

(ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or

(iii)an enabling Act that is an Act, or the rules, states the person   may be represented; or

(iv)the party has been given leave by the tribunal to be represented.

(3)   In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—

(a)the party is a State agency;

(b)the proceeding is likely to involve complex questions of fact or law;

(c)another party to the proceeding is represented in the proceeding;

(d)all of the parties have agreed to the party being represented in the proceeding.

1. According to section 43(1) of the Act, parties are expected to represent themselves in proceedings before the Tribunal. Except for cases allowed by section 43(2) (b), legal representation is not permitted as of right but leave is required for parties to be legally represented in cases where the interests of justice require the parties to be represented.

BACKGROUND

1. The application concerns a claim by Majestic for monies allegedly owing by Mr Murray in relation to the construction of a swimming pool. Mr Murray denies that the monies are owed, makes allegations of breaches of The Domestic BuildingContracts Act 2000 by Majestic and counter claims for damages for late completion of the pool.  

SUBMISSIONS

1. In their submissions, the solicitors for Mr Murray addressed the following factors in support of the application.

(a)Another party to the proceeding is represented in the proceeding.

1. Mr Murray’s solicitors submit that Majestic have at all times been represented in these proceedings by Mr Andrew Jackovic. Mr Jackovic is a director of Majestic and an “Australian Legal Practitioner” as that term is defined in the Legal Profession Act 2007.

1. Mr Murray’s solicitors submit  that in those circumstances  and in circumstances where Mr Murray is “a natural person who is not an Australian legal Practitioner” , “if leave is not given for the respondent to be represented in the proceeding, the respondent would be placed at a clear and significant disadvantage to the applicant in the further conduct of the proceeding  as he would be deprived of the benefit and assistance of legal representation in the conduct of his case whilst the applicant would continue to enjoy the benefit and assistance of legal representation in the conduct of its case”.

1. Majestic submit that this argument is misconceived essentially for two reasons:

·        Mr Jackovic has always represented Majestic in his capacity as company director and not as legal representative and in any event,

· Mr Murray is himself admitted as a legal practitioner of the Supreme Court of New South Wales although as he does not hold a current practicing certificate is not an “Australian Legal Practitioner” as defined in the Legal Profession Act 2007.

1. As to the first point, Mr Jackovic may well have been acting in his capacity as company director in negotiating the contract for the works and administering the contract, however, I am sure that he will be reliant on his skills as a lawyer if the time comes to represent Majestic in the proceedings as no doubt he has been in preparing the material presented thus far to the Tribunal. As such I do not consider that point to be persuasive.

1. The fact however that Mr Murray is also legally qualified is of relevance. It is difficult in those circumstances for him to argue that Majestic would be given a clear advantage if it elected to have a legally qualified officer of the company appear for it in the proceedings.

1. In relation to this issue the provisions of rule 54 of the Tribunal’s rules needs to be bought to the attention of Majestic.  It provides:

(1)   A corporation may appear in a proceeding through an officer of the corporation who is authorised by the corporation to act for it in a proceeding.

(2)   However, the corporation may appear through an Australian legal practitioner only with the Tribunal’s leave.

1. As such, if Majestic proposes to appear through Mr Jackovic it will     require the Tribunal’s leave to do so.

(b)The proceeding is likely to involve complex questions of fact or law.

1. Mr Murray’s solicitors submit that the proceedings involve complex questions of fact and law and that argument by legal representatives on the following issues would assist the Tribunal:

·        The jurisdiction of the Tribunal to decide the proceeding if the Tribunal should find there was a compromise agreement entered into by the parties covering all areas of dispute.

1. I accept Majestic’s submission on this point that that issue is now irrelevant as the point is no longer being pursued by Majestic in its amended claim.

·        Whether there has been an unlawful interference by the respondent with the structural integrity of the pool shell and, if so, the legal consequences of any such interference.

1. Mr Murray does not particularise the alleged unlawful interference. Majestic does detail its allegation of interference and I agree that as outlined, the allegations do not fall into the category of being factually or legally complex.  Mr Murray needs to show why the issue is complex and he has not done that. 

· The proper interpretation of sections 53 and 84 of the Domestic Building Contracts Act.  

1. I accept that this issue involves questions of law but are not in this case, as currently presented, complex ones which warrant in themselves the giving of leave for legal representation.

(c)   Other circumstances

1. Mr Murray’s solicitors submit that section 43(3) does not give an exclusive list of the matters to be taken into account when considering an application for leave to be represented. I accept that proposition. Mr Murray’s solicitors submit that the fact that Mr Murray is now resident in New Zealand is a factor supporting the granting of leave.

1. I accept for this reason it would not be practical for Mr Murray to attend directions hearings and reviews and as such will give leave for Mr Murray to be legally represented at reviews and directions hearings. I am not convinced however that representation should be given for the hearing simply because he is not resident in Australia. Mr Murray would be required to attend the hearing in any event. There is nothing precluding him from engaging lawyers to assist in the preparation of his case.

CONCLUSION

.

1. Taking into account all of the submissions made by the respondent solicitors, the Tribunal is not satisfied that the interests of justice require Mr Murray to be legally represented on the hearing of the application.  The application for leave to be represented at the hearing is dismissed however, the respondent is granted leave to be represented at reviews and direction hearings.  

1. The applications by both parties for costs of this application for legal representation are dismissed. It would appear that neither party provided the Tribunal at the callover with all the relevant information concerning the legal qualifications of the parties. In any event the parties should note that even if they had so disclosed that information and indeed consented to representation, the Tribunal would not necessarily grant leave unless it was satisfied that it was in the interests of justice to do so.