Melksham & Burger v Body Corporate for Aqua
[2010] QCAT 7
•18 January 2010
| CITATION: | Melksham & Burger v Body Corporate for Aqua [2010] QCAT 7 |
PARTIES: Sidney Albert Melksham & Angela Kay Burger
V
Body Corporate for Aqua CTS 32590
APPLICATION NUMBER: KL067-09
MATTER TYPE:
HEARING DATE: 18 January 2010
HEARD AT: Brisbane
DECISION OF: C Endicott, senior member
DELIVERED ON: 18 January 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for legal representation dismissed
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
An application was made to the Commercial and Consumer Tribunal on 3 November 2009 by Sidney Melksham and Angela Burger (the applicant) seeking an adjustment to the contribution lot entitlement schedule of Acqu CTS 32590 under the Body Corporate and Community Management Act 1997.
An application has been made to the Tribunal by the respondent Body Corporate of Acqu CTS 32590 seeking leave to be legally represented in the proceedings.
ISSUES AND THE LEGISLATION
From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Commercial and Consumer Tribunal on the commencement of the Queensland Civil and Administrative Tribunal Act 2009.
Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. According to section 271 of the Act, the Tribunal must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
The enabling Act in this case does not contain any provision for legal representation in these proceedings. The Queensland Civil and Administrative Tribunal Act 2009 contains provisions for a party to be legally represented only with the leave of the Tribunal.
Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides 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—
(c) the party is a State agency;
(d) the proceeding is likely to involve complex questions of fact or law;
(e) another party to the proceeding is represented in the proceeding;
(f) all of the parties have agreed to the party being represented in the proceeding.
(4) A party can not be represented in a proceeding by a person—
(a) who, under rules made under section 224(3), is
disqualified from being a representative of a party to a
proceeding; or
(b) 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.
(5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if—
(a) the party is a corporation; or
(b) the tribunal has asked for the certificate.
(6) The tribunal may appoint a person to represent an unrepresented party.
(7) In this section—
Australian legal practitioner see the Legal Profession Act 2007.
government legal officer see the Legal Profession Act 2007.
It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right. In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
Rule 54(1) of the Queensland Civil and Administrative Tribunal Rules 2009 provides that a corporation may appear in a proceeding through an officer of the corporation who is authorised by the corporation to act for it in the proceeding. However, rule 54(2) provides that leave from the Tribunal is required if a corporation seeks to appear through an Australian legal practitioner.
SUBMISSIONS
The respondent made submissions via its lawyers in support of an application for leave to be legally represented in the proceedings. It was submitted that the respondent consists of 103 residential lot owners represented by a Body Corporate Committee which is currently comprised of six volunteer members.
It was submitted that each committee member are committed to their role and will act in good faith and in the best interests of the lot owners. It was further submitted that each committee member has their own separate commitments and employment obligations outside of their responsibilities as a committee member.
It was submitted that the committee members cannot personally devote the time necessary to attend at hearings and to respond to matters in the proceeding to ensure that the matter proceeds in a timely and appropriate manner to resolution.
It was submitted that the Committee cannot respond to questions of law and have engaged Gadens Lawyers for that purpose. It was submitted that the Body Corporate (as authorised by its Committee) would not be acting in the interests of its lot owners unless it is legally represented in the proceeding.
The submissions did not specifically refer to the factors set out in section 43(3) of the Act as circumstances supporting the giving of leave.
The applicant did not object to the respondent being legally represented in the proceedings. The applicant has not sought leave to be represented in the proceedings.
CONCLUSION
The Tribunal accepts that the respondent in these proceedings is a corporation and under the Rules of the Tribunal, the respondent may appear in the proceedings through an officer of the corporation authorised to act for the respondent. The submissions contend that none of the Body Corporate Committee members have the time to attend at hearings in this proceeding.
The Tribunal has given consideration to this submission made on behalf of the respondent. No particulars were given to explain this contention. Parties involved in proceedings before the Tribunal are expected to assist in the resolution of the proceeding and not to act in such a way as to cause disadvantage to another party. If an authorised officer of the respondent cannot appear in the proceeding on behalf of the respondent, the Tribunal can exercise power under section 48 of the Act to remove the respondent as a party to the proceedings.
It is not appropriate to accede to the submissions made in this case to in effect excuse the appearance of a party by allowing representation of that party by its legal representative in a jurisdiction where parties are expected to represent themselves. Factors other than mere inconvenience to a party must be present before leave to be legally represented is able to be granted.
In addition, no explanation was given in the submissions to clarify how granting leave for legal representation in the proceedings would ensure that the matter proceeds in a timely and appropriate manner.
Under section 28 of the Act 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 practicable.
The Act does not assign to a legal representative of a party the task of ensuring that a proceeding runs in a timely and appropriate manner. That responsibility is quite correctly placed onto the Tribunal. Through its own processes and Rules, the Tribunal has from its commencement set in place arrangements that should result in parties to a proceeding being accorded procedural fairness and in matters being dealt with in a way that is accessible, fair, just, economical, informal and quick.
The Tribunal has not been persuaded that granting leave to the respondent to be legally represented in the proceedings will assist in the timely resolution of the matter.
The applicant is not legally represented in the proceeding but does not object to the respondent being legally represented. The Tribunal notes that section 43(3) of the Act provides that the Tribunal may take such a consideration into account when determining whether to grant leave for a party to be legally represented.
The respondent did address tangentially one of the other factors found in section 43(3) of the Act namely whether the proceedings involved complex questions of law and fact.
From a reading of the application and of the documentation provided by the applicant, the Tribunal has been unable to ascertain any such complex questions that would necessitate input from a legal representative. The submissions did not identify any complex questions of law but the respondent has not yet delivered its defence in the proceeding.
In any event, the respondent can access legal expertise in the preparation of its case and in the preparation of documents without requiring leave under section 43 of the Act. The respondent, appearing by an appropriately authorised officer, is not prevented from presenting a case formulated with legal assistance but is prevented by the Act from being actually represented by a lawyer unless the interests of justice require otherwise.
The submissions contended that the respondent could not respond to questions of law. The parties will not be expected to address the Tribunal on questions of law at the hearing and resolution of questions of law will be undertaken by the Tribunal in its determination.
Taking into account the submissions made by the respondent and the response by the applicant, the Tribunal is not satisfied that the interests of justice require the respondent to be legally represented on the hearing of the application. The application for leave to be represented by a legal representative is dismissed.
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