Nairn Constructions Pty Ltd v Associated Aluminium Services
[2013] QCAT 528
| CITATION: | Nairn Constructions Pty Ltd v Associated Aluminium Services [2013] QCAT 528 |
| PARTIES: | Nairn Constructions Pty Ltd (Applicant) |
| V | |
| Associated Aluminium Services (Respondent) |
| APPLICATION NUMBER: | BDL244-11, BDL245-11, BDL292-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 11 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application by Nairn Constructions Pty Ltd for leave to be represented is refused. |
| CATCHWORDS: | Building dispute – application for representation Queensland Civil and Administrative Tribunal Act 2009 s 28, 29, 43. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Nairn Constructions (Nairn) is a builder. It engaged Associated Aluminium Services (AAS) as a Sub-Contractor.
There are three Applications which are being heard together. Nairn seeks the cost of completing works.
A Hearing was held in the applications on 5 June 2013. An order was made on 27 June 2012 that the Applications were dismissed.
Nairn appealed against the decision. On 27 May 2013 the Appeal was allowed, and the decision of 27 June 2012 was set aside. The Applications were remitted to a Directions Hearing before the tribunal.
On 19 June 2013 at a Directions Hearing before a Senior Member, the Applications were listed for a two day hearing in Brisbane commencing on 17 October 2013.
The Applications are set down for two days hearing before me next week on 17 October and 18 October.
Nairn filed an Application for leave to be represented on 28 August 2013. Submissions were sought from AAS which were filed on 26 September 2013.
AAS oppose the application for representation.
Neither party was represented on the original hearing. Nairn Constructions was given leave to be represented on the Appeal, and was represented by a Solicitor.
I made an order on 4 October 2013 refusing the Application for Representation. These are my reasons for that order.
Leave to be represented is provided by s 43 of the QCAT Act. The principle expressed in s 43(1) is that parties represent themselves unless the interests of justice require otherwise.
In deciding whether to give a party leave to be represented, a number of factors are listed in s (43)(3) which the tribunal may consider. The relevant subsections are:-
(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
The tribunal can consider any relevant consideration in addition to those listed in s 43.
Complexity
Nairn submits that the issues in these applications involve complex matters of law and fact. AAS submit that the facts are not complex.
There is a narrow range of issues and documents. The arguments have been ventilated already before one hearing and in an Appeal.
The parties will be aware of the issues and be able to prepare themselves, and obtain advice in advance of the hearing.
I am not satisfied that the matters involve complex questions of fact or law.
Representation of Other Party
AAS has not been represented in either the first Hearing or the Appeal. In their submission of 26 September 2013, they say that they would have to get a loan in order to obtain a lawyer as they do not have the available funds to afford one. They say that they would not feel comfortable putting their case against a lawyer for the other party.
It would cause financial hardship to AAS for them to obtain the services of a lawyer to represent them.
If AAS sought to obtain a Lawyer at this stage, there would be a real possibility that the lawyer would say that they do not have enough time to properly prepare before the hearing, and would seek an adjournment of the hearing.
It is in the interests of the parties that there not be an adjournment, and that the matters be resolved without further delay, and without necessarily involving them in significant expense.
Attitude of other party
AAS made it known to Nairn by fax dated 12 July 2013 that it did not consent to Nairn being represented. This is referred to in Part F of the Application for representation.
AAS have maintained their opposition in their most recent submission of 26 September 2013.
Closeness of Hearing
The Application by Nairn was not filed until 28 August 2013, which was about two and a half months after the hearing date was first set.
Allowing for the time for AAS to respond to the Application, and for the tribunal to consider it, this left only about two weeks before the hearing when the decision to reject the application was made.
Having regard to the nearness of the hearing, I published my decision to refuse the representation application first, with these reasons being delivered after.
The most appropriate time for Nairn to have made the Application for Representation would have been at the Directions Hearing on 19 June 2013 when the Applications were set for hearing. It is not explained why such an Application was not made then.
Conclusion
Having regard to the following matters as discussed above, I am not satisfied that the interests of justice require that Nairn be represented:-
(a) the questions of fact and law are not very complex and have been previously ventilated;
(b) AAS is not represented;
(c) AAS opposes the Application;
(d) hardship would be caused to AAS;
(e) the failure of Nairn to make the Application for representation in a more timely fashion; and
(f) the nearness of the hearing.
The hearing can properly proceed without Nairn being represented.
In conducting the hearing, the tribunal has regard to the parties being self-represented, and makes every effort to ensure the proceedings are conducted in a fair and just way.[1]
[1]Section 28 of the QCAT Act requires that the tribunal must act fairly, and S 29 requires the tribunal to take all reasonable steps to ensure that each party has a proper understanding and regard of the proceedings.
Accordingly, the Application by Nairn for representation is refused.
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