Pacurarn v Pande

[2017] QCAT 354

CITATION:

Pacurarn v Pande [2017] QCAT 354

PARTIES:

John Pacurarn
(Applicant)

v

Shirley Pande

(Respondent)

APPLICATION NUMBER:

Q239/17

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

6 October 2017

HEARD AT:

Beenleigh

DECISION OF:

Member Katter

DELIVERED ON:

18 October 2017

DELIVERED AT:

Beenleigh

ORDERS MADE:

The application for leave to be represented is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – Leave to be represented – s 43 Queensland Civil and Administrative Tribunal Act 2009 (Qld) – interests of justice

Josephine Rosalie Coppens v Water Wise Designs Pty Ltd [2011] QCAT 273
Lida Build Pty Ltd v Miller [2010] QCAT 155

APPEARANCES:

APPLICANT:

On the papers  

RESPONDENT:

On the papers

The Application for leave to be represented, filed by the Respondent on
4 October 2017 was determined on the papers on 6 October 2017, pursuant to
s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”).

REASONS FOR DECISION

1. A Form 56 Application for leave to be represented was filed by the Respondent on 4 October 2017.  At Part E of that Application (‘Reasons why proposed non-legal representative is appropriate’) the following is stated: “I will be out of the country visiting my family’s [sic].

   
   

   Also English is my Second Language”.  At Part F of that Application (‘Reasons why representation is needed) the following is stated:  “I will be out of the country visiting my family members.  Also English is my Second Language”. 

2. Section 43(1) of the QCAT Act states the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise.

3. In a proceeding a party may be represented by someone else if the party has been given leave by the tribunal to be represented (s 43(2)(b)(iv)). 

4. 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:  the party is a State agency; the proceeding is likely to involve complex questions of fact or law; another party to the proceeding is represented; all of the parties have agreed to the party being represented in the proceeding (s 43(3)(a)-(d)). 

5. These are a ‘non-exhaustive list of discretionary considerations that may warrant a decision to grant leave’[1]. 

   [1]Josephine Rosalie Coppens v Water Wise Designs Pty Ltd [2011] QCAT 273, [3] (Member A. Forbes).

6. In Lida Build Pty Ltd v Miller [2010] QCAT 155 it was relevantly stated at [7], that QCAT:

   ... does not consider that the presence of a legal representative in a proceeding will necessarily promote procedural fairness or will necessarily assist the tribunal to a material degree to achieve its statutory objects, particularly in a case where the other party is not legally represented.

7. The purpose of s 43 is to ‘ ... avoid unnecessary costs to parties and an overly legalistic and formal approach to the conduct of proceedings, while ensuring representation is allowed in cases where the interests of justice and the rules of natural justice would require it’.[2]   

   [2]QCAT Bill Explanatory Notes.   

8. The Application for minor civil dispute – minor debt filed on 7 March 2017 claims, with further particularisation, an amount owing. The Response to minor civil dispute – minor debt filed 11 July 2017 disputes the amount owing, with further particularisation. There is no indication on that material filed that the proceeding is likely to involve complex questions of fact or law. The s 43(3)(a), (b) and (d) “circumstances supporting the giving of the leave” are not in issue on the filed documents.

9. The application for leave to be represented refers potentially to the need for an interpreter. Section 44 of the QCAT Act states that unless the tribunal directs otherwise, a party to a proceeding may be helped in a proceeding by an interpreter. The potential need for an interpreter or travel to visit family overseas, having regard to the s 43, do not “require” the grant of leave for representation “otherwise”.

10. Leave is not granted for the Respondent to be represented.