Mulder v Queensland Building and Construction Commission

[2018] QCAT 259

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mulder v Queensland Building and Construction Commission [2018] QCAT 259

PARTIES:

HEINRICH GEORGE LUDIWICK MULDER
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR145-18

MATTER TYPE:

Building matters

DELIVERED ON:

10 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Quinlivan

ORDERS:

1. The Application by Heinrich George Ludiwick Mulder to deny the QBCC to be represented by a legal practitioner in these proceedings is dismissed.

2.   The Queensland Building and Construction Commission is granted leave to appear in these proceedings (including at the compulsory conference) through a government legal officer (an in-house legal officer) pursuant to Rule 53 of the QCAT Rules 2009 (Qld).

CATCHWORDS:

Legal representation - Representation limited to in-house lawyer

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43
Queensland Civil and Administrative Rules 2009 (Qld),
r 53

Glenda Joy Robinson v Queensland Building Services Authority [2010] QCAT QR131-09
Herron v The Attorney General for New South Wales [1987] 8 NSWLR 601
Jarrod Sierocki v QBSA (2010) QR 215-09 (29 January 2010)
Jones v Queensland Building Services Authority [2010] QCAT 161

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 3 July 2018 the Queensland Civil and Administrative Tribunal made the following Directions:

   1.   GAR145-18 and GAR119-18 will remain as separate proceedings and travel together.

   2.   The Compulsory Conference listed on 21 August 2018 at 9.30am is confirmed.

2. On 26 June the Applicant Heinrich Mulder wrote to the Tribunal providing an out of time submission regarding his Reply to QBCC’s application for legal representation. Mr Mulder attached a written Reply to the QBCC’s submission dated 25 June 2018.

3. He provided, in his words, a “concise no-frills short version of the facts of (his) case”[1]. His submissions in relation to the QBCC’s application to use an in-house legal officer are identical to those used in matter number GAR119-18.

   [1]Applicant’s statement dated 25 June 2018 at paragraph 3.

4. The order that the Mr Mulder seeks is – “That the Commission be denied leave to appear in these proceedings (including at the Compulsory Conference) through an Australian Legal Practitioner or a government legal officer (an in-house legal officer).”

5. These Reasons should be read in conjunction with the Reasons in Matter no. GAR119-18.

6. The sequence of events leading up to this interlocutory application are as follows:

   i.On 7 February 2017 Mr Mulder entered into a contract for the construction of a new home at his property at 71 Eagle Beach Parade, Dundowran Beach, Qld.

   ii.The contract was terminated on or about 2 May 2017 by the building licensee prior to the pouring of the slab.

   iii.Mr Mulder then lodged a Non-Completion claim with the QBCC. The claim was rejected, based on the QBCC’s assessment that the licensee's termination was valid.

   iv.Mr Mulder then lodged a defects Complaint that led to an Inspection Report dated 26 October 2017.

   v.On 9 April 2018 Mr Mulder applied for a review of the decision.

   vi.On 8 June 2018 the QBCC filed an Application for a Miscellaneous Matter seeking to join a second respondent (Consolidated Building Concepts Pty Ltd) and for the second respondent to have leave to be legally represented.

   vii.Mr Mulder provided a substantial amount of documentation supporting his submissions on 28 May 2018.

The relevant law

1. In deciding whether a party is to be given leave to be represented The Tribunal may consider the following as circumstances supporting the granting of leave:

   a)   The party is a State agency;

   b)   The proceeding is likely to involve complex questions of fact or law[2].

Further, rule 53 of the QCAT Rules 2009 provides:

i.A State agency may appear in the proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceedings.

ii.However, the State agency may appear through an Australian legal practitioner or a government legal officer only with the tribunal’s leave.

[2]Ibid s 43(3) (a) & (b).

Applicant’s submissions

1. In summary, Mr Mulder argues that the legal principles applicable to his claim are actually quite uncomplicated. According to him[3], it is the findings and actions of the QBCC that have actually simplified matters.

   [3]Ibid page 8 para 17.

Discussion

1. In its submissions dated 28 May 2018, the QBCC confirms an undertaking that it will not apply for a costs order in the event that the review is unsuccessful, unless Mr Mulder conducts himself in a manner that is found to be frivolous, vexatious or an abuse of process.

2. QBCC points out that the Tribunal may make an order for legal representation, if the interests of justice require the Tribunal to make the order. QBCC contends that the phrase “in the interests of justice” is not defined in the QCAT Act but it is to be construed according to its ordinary and plain meaning conferring a broad discretionary power on the decision-maker.[4]

   [4]Herron v The Attorney General for New South Wales [1987] 8 NSWLR 601 at 613 per Kirby J.

3. QBCC submits that whether the interests of justice require a party to be legally represented will turn on the facts and circumstances of a particular proceeding.[5]

   [5]Glenda Joy Robinson v Queensland Building Services Authority [2010] QCAT QR131-09 at para 25.

4. QBCC acknowledges its role as a Model Litigant in assisting the Tribunal to arrive at the correct and preferable decision. QBCC confirms that as a model litigant it has a duty to ensure that:

   a)   The Tribunal is provided with all necessary information and evidence required to “stand in the shoes” of the original decision maker; and

   b)   It does not take unfair advantage of a self-represented party which imposes a positive obligation on the Commission to engage in conduct that would serve to reduce any knowledge gap[6].

   [6]Respondent’s submissions para 8.

5. As a result, QBCC submits that a grant of leave for legal representation will further the objects of the QBCC Act.

6. Finally, QBCC concedes that it is a State agency but this of itself does not entitle it to legal representation. It refers the Tribunal to the comments of Senior member O’Callaghan in Jarrod Sierocki v Queensland Building Services Authority[7] where she states:

   ‘The fact, however, that being a State agency is a circumstance to consider under section 43 when granting leave means that a State agency… is in a unique category (as opposed to a corporation).

   [7]Jarrod Sierocki v QBSA (2010) QR 215-09 (29 January 2010) paras 8 & 9.

7. In the decision of Brown and Brophy v QBSA and anor[8], Member Lohricsh stated:

   “In this context I find that the Authority’s submission that it is not desirable that the actual decision-maker representing an Authority is correct and that the more objective and dispassionate representation that the Authority’s in-house lawyers should bring to the matter is clearly desirable and would be of considerable assistance to the Tribunal”.

   [8]2005 QCCCTB 110.

8. Having considered the provisions of section 43(3)(a) of the Act, I am satisfied that the QBCC is a State agency and a model litigant whose operations are governed by statute. As a result, it must assist the Tribunal by ensuring that all relevant facts and law applicable to this particular dispute are identified even if it is to the detriment of the Commission.

9. I am satisfied that legal officers from the Commission are familiar with the relevant legislation and practice in this jurisdiction which will assist the Tribunal when determining the issues before it.

10. Overall, the Tribunal is not satisfied that the applicant has demonstrated any reasons why the QBCC should not be represented by an in-house legal officer in this case.

    Decision

11. The QBCC is seeking an order that it be granted leave to appear in these proceedings (including at the compulsory conference) through an Australian legal practitioner or a government legal officer (an in-house legal officer) pursuant to Rule 53 of the QCAT Rules 2009 (Qld).

12. In the matter of Jones v Queensland Building Services Authority[9], the Member observed that the use of an in-house legal officer “would ensure that a legally trained person presented the respondent’s case and assist it to undertake its role as model litigant in terms of providing the Tribunal with the legal submissions required to enable the Tribunal to make the correct and preferable decision. The decision-maker would then be in the position of a witness in the proceeding”.

    [9] [2010] QCAT 161 para 17

13. I accept the submission of the QBCC that the Tribunal would benefit from the presence of an in-house legal officer who is:-

    ·Familiar with the statutory framework;

    ·Able to present the issues in a legal framework and in accordance with the relevant legislation;

    ·Able to best ensure the proceedings are run as speedily and efficiently as possible and can best assist the Tribunal to resolve these proceedings; and

    ·Able to provide objective and dispassionate representation.

14. Therefore, I find that this is an appropriate case for leave to be granted.

15. The orders are:

    1. The Application by Heinrich George Ludiwick Mulder to deny the QBCC to be represented by a legal practitioner in these proceedings is dismissed.

    2.   The Queensland Building and Construction Commission is granted leave to appear in these proceedings (including at the compulsory conference) through a government legal officer (an in-house legal officer) pursuant to Rule 53 of the QCAT Rules 2009 (Qld).