Mulder v Queensland Building and Construction Commission
[2018] QCAT 242
•25 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mulder v Queensland Building And Construction Commission [2018] QCAT 242
PARTIES:
HEINRICH GEORGE LUDIWICK MULDER
(applicant)v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO:
GAR119-18
MATTER TYPE:
Building matters
DELIVERED ON:
25 July 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Quinlivan
ORDERS:
The Commission is 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).
CATCHWORDS:
Legal representation - Representation limited to in-house lawyer
Section 43 Queensland Civil and Administrative Tribunal Act 2009
Rule 53 of the QCAT Rules 2009Herron v The Attorney General for New South Wales [1987] 8 NSWLR 601
Glenda Joy Robinson v Queensland Building Services Authority [2010] QCAT QR131-09
Jarrod Sierocki v Queensland Building Services Authority (2010) QR 215-09 (29 January 2010)
Jones v Queensland Building Services Authority [2010] QCAT 161APPEARANCES:
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
On 7 February 2017 the applicant, Heinrich Mulder entered into a contract for the construction of a new home at his property at 71 Eagle Beach Parade, Dundowran Beach, Qld. The contract was terminated on or about 2 May 2017 by the building licensee prior to the pouring of the slab.
At that time, the slab was ready to pour and had been inspected and passed by both the design engineer Engage Consulting Engineers and the certifier, Laurence Eves.
The owner/applicant then lodged a Non-Completion claim with the Queensland Building and Construction Commission (QBCC). The claim was rejected based on the QBCC’s assessment that the licensee's termination was valid.
The applicant then lodged a defects Complaint that led to an Inspection Report dated 26 October 2017. There were 15 items of complaint from Mr Mulder that were investigated by the QBCC.
In respect to items 1 to 13 and item 15, QBCC concluded that the complaints had been investigated and there was insufficient evidence to reveal any obvious defective construction practices by the builder at the time of inspection. Therefore, QBCC was not able to provide the applicant with any further assistance with the resolution of those matters. In relation to item 14 QBCC determined that the item was not a defect attributable to the licensee.
On 9 April 2018 the applicant applied for a review of the decision. The applicant wrote to the Tribunal on 24 May 2018 objecting to the QBCC being represented in the proceedings. On 25 May 2018 the Tribunal directed that unless either party requested an oral hearing, any application for leave to be represented… would be determined by a member of the Tribunal on the papers, by written submissions filed and without an oral hearing on another date not before 18 June 2018.
On 8 June 2018 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.
The applicant opposes leave being granted to QBCC to be represented and has suggested that the QBCC “use their in-house legal officer to explain to QCAT why the QBCC is wasting QCAT’s valuable time, wasting his money and causing him stress, as well as Australian Taxpayers valuable public resources and money”[1].
[1]Applicant’s statement dated 3 May 2018, para 2.
The applicant provided a substantial amount of documentation supporting his submissions on 28 May 2018.
The relevant law
Section 43 of the Queensland Civil and Administrative Tribunal Act states that the “main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise”[2].
[2]QCAT Act section 43 sub-section (1).
The section also provides that in certain circumstances a party may be represented by someone else if “the party has been given leave to be represented”[3].
[3]Ibid section 43(2)(iv).
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[4].
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.
[4]Ibid section 43(3) (a) & (b).
Applicant’s submissions
The applicant submits that the QBCC in-house legal department, at all times, has been aware of the decisions taken by the QBCC which amounted to “offences”, and did nothing about it. He argues that the QBCC has not been acting as a “model litigant” and has refused to correct the injustices being committed against him[5].
[5]Applicant’s submissions dated 14 June 2018 page 4 para 4.
He contends that the in-house legal department should advise the QBCC to provide him with the remedies that he claims to be entitled to in terms of his insurance and to remunerate him for his losses as a result of their alleged unlawful actions.
In summary, the applicant suggests that the legal principles applicable to his claim are actually quite uncomplicated. According to the applicant[6], it is the findings and actions of QBCC that have actually simplified matters as follows:
[6]Ibid page 8 para 17.
·He asserts that QBCC found that the work was in non-compliance with the mandatory standard and contractual plans and specifications and they provided evidence of this (Initial Inspection report by Hutson).
·In terms of their own definition of “defective work” such work is then defective. Their definition is also recognised by the courts as the legally correct definition for defective work.
·In terms of his insurance with the QBCC, when there is non-compliance (defective work), he claims he is entitled to remedies.
·Non-compliance with a mandatory standard is an offence. The builder thus committed offences.
·The QBCC committed offences by assisting the builder to get away with his offences, therefore committing offences themselves by becoming an accessory to the crimes after the fact.
·He claims that the QBCC in-house legal officer submitted an application to join another party, presenting a reason for such action which when measured against the overwhelming evidence to the contrary, means that it can only be a lie.
·By doing this, he alleges the QBCC is once again trying to assist the builder get away with his offences; thereby the QBCC is once again committing offences themselves.
·He contends that the in-house legal officer, by submitting an application to join a party is trying to complicate matters. He claims that what the in-house legal officer now suggests, in defiance of all the facts, all of which he is aware of, is that he can apparently alter and/or ignore the facts. He asserts that this is unacceptable, and should be a simple matter to evaluate in terms of legal principles.
·He then queries whether such action by the in-house legal officer should be found to be frivolous, vexatious or an abuse of power?
In a separate document, the applicant argues that there are various instances in the correspondence from QBCC regarding the application to join a further party to the proceedings, where they indicated that they are waiting for input from their legal department[7].
[7]Annexure B of applicant’s Statement dated 14 June 2018, page 11 para 11.
He argues that:
As a result it makes it absolutely laughable that a QBCC legal representative now wants to act as a model litigant in their own case, apparently to the benefit of the tribunal and to assist with reaching the correct and preferable decision and provide all necessary information and evidence and provide objective and dispassionate representation all in the interests of justice et cetera – an absolute joke when weighed against their blatantly arrogant unlawful behaviour – this in the face of and total disregard of the evidence being undeniable against them[8].
[8]Ibid para 11.
Discussion
In its submissions[9] the respondent confirms its undertaking that it will not apply for a costs order in the event that the review is unsuccessful, unless the applicant conducts himself in a manner that is found to be frivolous, vexatious or an abuse of process.
[9]Respondent’s submissions dated 28 May 2018 para 2.
The respondent points out that the tribunal may make an order for legal representation, if the interests of justice require the tribunal to make the order. The respondent points out 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.[10]
[10]Herron v The Attorney General for New South Wales [1987] 8 NSWLR 601 at 613 per Kirby J.
The respondent 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.[11]
[11]Glenda Joy Robinson v Queensland Building Services Authority [2010] QCAT QR131-09 at para 25.
The respondent acknowledges its role as a Model Litigant in assisting the tribunal to arrive at the correct and preferable decision. The respondent states 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[12].
[12]Respondent’s submissions para 8.
The benefits which will flow to the proceedings according to the respondent[13] include:
·Ensuring the Commission's approach to the proceedings is consistent and appropriate;
·Endeavouring to limit the scope of the proceedings wherever possible,
·Adducing evidence to ensure the tribunal is given, clearly and concisely, the relevant evidence including evidence which is contrary to the interests of the Commission
·Providing reasonable assistance, in a procedural sense, to the applicant by answering any questions or queries about the processes or practices of the tribunal and any relevant practice directions published by the tribunal.
[13]Ibid para 9
As a result, the respondent submits that a grant of leave for legal representation will further the objects of the QBCC Act.
Finally, the respondent points out 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[14] 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). I think it is appropriate to place a State agency in a unique category when considering the granting of leave for reasons such as those as expressed by Member Lohrisch in the decision of the former Commercial and Consumer Tribunal in Brown and Brophy v. Queensland Building Services Authority (2005) QCCCTB 110…
[14]Jarrod Sierocki v QBSA (2010) QR 215-09 (29 January 2010) paras 8 & 9.
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.
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.
In the decision of Brown and Brophy v QBSA and anor[15], Member Lohricsh stated:
The Authority is placed not only in a position of defending a decision made by the Authority but moreover is under a parallel obligation to the Tribunal towards ensuring that the Tribunal has all the necessary information and evidence before it to “stand in the shoes” of the Authority, as the Tribunal is required to do, in not only reviewing the Authority's decision, but also making the appropriate decision in all of the circumstances. The Authority’s obligation in this regard remains the same whether or not such information/evidence is favourable or unfavourable to a determination as to whether the Authority's decision should be confirmed.
In this context I find that the Authority’s submission that it is not desirable that the actual decision-maker representing 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.
[15]2005 QCCCTB 110.
In other words, it is not appropriate for the person, who might otherwise represent the Commission, is also the investigator and decision-maker. Such a person may also have to give evidence and be cross examined by the applicant.
Overall, the applicant fails to recognize that this matter may ultimately need to be heard and determined by the tribunal. He appears to be dismissive of the role of the tribunal in determining this dispute. He fails to acknowledge that the tribunal is now seized of this matter and in order for it to be determined by the tribunal it will be necessary to consider some complex questions of fact and law.
Decision
The applicant has raised 15 items of complaint that have been dealt with by the respondent and dismissed at first instance. The applicant has also raised concerns going to the integrity and credibility of the QBCC. I am not satisfied that these items alone would have a level of complexity to cause me to grant leave for legal representation in the interests of justice.
However, I am concerned that the respondent is a State agency and that there is a possibility of conflict between the decision maker having to give evidence while justifying his decision and representing the respondent.
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).
In the matter of Jones v Queensland Building Services Authority[16], 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”.
[16][2010] QCAT 161 para 17.
The matters before the Tribunal are not sufficiently complex to require external legal representation. Any issues regarding the interpretation of the relevant Act and its associated insurance policy can be attended to by the respondent undertaking its role as a model litigant through the grant of leave to appear by one of its in-house legal officers.
Therefore, I find that this is an appropriate case for leave to be granted. The order is:
The Commission is 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).
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