Robinson v Queensland Building Services Authority

[2010] QCAT 39

CITATION: Robinson v Queensland Building Services Authority [2010] QCAT 39

PARTIES:   Glenda Joy Robinson

v

Queensland Building Services Authority

APPLICATION NUMBER:            QR131-09

MATTER TYPE:   Building matters

HEARING DATE:   27.1.2010

HEARD AT:   Brisbane

DECISION OF:   Richard Oliver, Senior Member

DELIVERED ON:   27.1.2010

DELIVERED AT:   Brisbane

ORDERS MADE:   The respondent be granted leave to be legally represented by an in-house lawyer

CATCHWORDS: Legal Representation; section 43 Queensland Civil and Administrative Tribunal Act; whether representation confined to respondent’s in house lawyers.

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. The respondent applies for leave to be legally represented in the proceeding pursuant to section 43 of the Queensland Civil and Administrative Act (“Act”) by a legal officer in the employ of the respondent.

1. The applicant opposes the application.

1. Both parties have filed written submissions and have agreed that the application should be decided on the papers.

1. The starting point for an application for legal representation is s. 43 of the Act which provides, inter alia, that the “main purpose of this section is that parties represent themselves unless the interests of justice require otherwise”.

1. The section provides assistance to the Tribunal, by identifying particular circumstances that may be taken into account when considering an application. Those matters of relevance in this application include:

a.the respondent is a State agency;

b.whether the proceeding is likely to involve complex questions of fact or law.

1. Of relevance here is the fact that the respondent is a State agency. Also of relevance are rules 53(1) and (2) of the Rules made pursuant to the Act which permits an employee, officer or member of the Agency to act for it in a proceeding, but if an employee is also a legal officer, leave is still required.

BRIEF FACTUAL BACKGROUND

1. The applicant made complaint to the respondent about defects in building work undertaken for her by a building company, Ownit Homes Pty Ltd (“the builder”), at 14 Placid Court, Narangba. In that complaint she identified some 28 specific building defects and sought the assistance from the Authority to have those defects rectified.

1. The Authority investigated the complaint and a report was prepared by the building inspector, Darren Girling. His report concluded that a number of the complaints made did not warrant the issuing of a Direction to Rectify to the builder.

1. Thereafter, the Authority wrote to the applicant with a list of the defects that it was directing the builder to rectify. The applicant was not satisfied with this list and, as is her right, applied to the Commercial and Consumer Tribunal to have the decision of the Authority of 11 May 2009, reviewed.

1. Therefore the issues in dispute are whether particular alleged defects ought be the subject of a Direction by the Authority to the builder.

SUBMISSIONS

1. The respondent refers to the Objects of the Act as contained in section 3 and the Tribunals functions as set out in section 4. Then by reference to section 43(3)(a) reliance is placed on the fact that the respondent is a State agency, and model litigant whose operations are governed by statute. By reason of this status it has an obligation to assist the Tribunal, fully inform the Tribunal of all relevant facts (and law) applicable to the particular dispute. This is so even if the evidence is contrary to the interests of the Authority.

1. Importantly, the Authority’s legal officers are familiar with the statutory regime in which the Authority operates not only the Queensland Building Services Authority Act, but also associated legislation, such as the Domestic Building Contracts Act. This knowledge is of great assistance to the Tribunal when determining, not only applications for review of it’s decisions, but also in contractual disputes between home owner and licensees. This also then results in the efficient conduct of hearings in which the Authority is involved. This is undoubtedly correct.

1. However as I have indicated the application is opposed. In her written submissions the applicant suggests that it would give the respondent an unfair advantage if it were to use “their own legal team”.

1. There is also complaint that the applicant has “in this matter been treated with contempt by Building Services Authority representatives with regards to inspection date” .

DECISION

1. Reliance is place on such cases as Brown & Brophy v Queensland Building Services Authority & Anor[1] and Drew v Queensland Building Services Authority.[2] In Brophy, Member Lohricsh said:

a.“The Authority is placed not only in a position of “defending” a decision made by it, but moreover, is under a parallel obligation to the Tribunal towards ensuring that the Tribunal has all 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.

b.In this context it seems to me that the Authority’s submission that it is not desirable that the actual decision maker represent the 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”

[1] [1] (2005) CCT Q200-04 as well as 170 Coastal Constructions Pty Ltd v Queensland Building Services Authority (2008) QCCTB 111

[2] (2008) QCCTB 199

1. Those comments were made with reference to section 72 of the former Commercial and Consumer Tribunal Act but in my view are apposite to the consideration of representation of a State agency under section 43 of the Act. Also of note is the decision of Fave where, this issue was revisited and it was considered undesirable where the person who might represent the Authority, here presumably Mr Daren Girling, who was both the investigator and the decision maker, might have to give evidence and be questioned by the applicant.

1. These, in my view, are compelling reasons for giving consideration as to whether a State agency should have leave to be legally represented by an “in-house” lawyer. Further, the very fact that the Legislature saw fit to include, as a circumstance, that a party is a State agency suggests an intent to put the respondent into a category requiring special consideration, otherwise there would be no need to make reference to it at all in subsection 3(a).

1. With respect to the applicant’s first point, The Tribunal Members are well equipped to ensure there is no unfair advantage where self representation occurs. The objects of the Act impose responsibility on the Tribunal to ensure this is so. Also there is a positive obligation on the decision maker pursuant to section 21 of the Act help the Tribunal. It follows, that it is difficult to discern any real unfair advantage to the respondent, because this proceeding will not involve complex issues of law but whether the defect is one which ought to have been subject of a Direction to Rectify by the respondent.

1. What is of concern is the ill feeling expressed against the Authority by the applicant. She may have very good grounds for making this comment but it does highlight, given this feeling, the necessity for there to be objective representation on the part of the Authority. This is particularly so having regard to the respondent’s conduct of proceedings as a “model litigant”.

CONCLUSION

1. Although the factual matrix concerning whether the complaints made by the applicant about defective work have a level of complexity, it would be difficult to conclude that this alone would warrant the grant of leave for representation.

1. However the fact that the respondent is a State agency and there is a potential conflict between the decision maker having to give evidence and support his decision as well as represent the respondent, does give cause for concern. It may well be that another person within the respondent can appear but if that were the case it might just as well be a lawyer.

1. If there is any concern about costs orders being made against the applicant if she is unsuccessful, the provisions of section 100 of the Act impose stringent criteria before a costs order can be made. This is particularly so where leave is granted to an “in-house” lawyer because is really is in the nature of self representation by the party.

1. The Tribunal is also mindful of the ill feeling between the applicant and the respondent which would warrant leave to ensure objectivity in the presentation of the respondent’s case.

1. The applicant relies on section 4 of the Act to ensure the proceedings are informal, costs are minimised and the proceeding is conducted quickly. This can be achieved and in my view enhanced it an in house lawyer represents the respondent. Also the applicant can be assured that she will not be at an unfair advantage at any hearing as it is also the Tribunal’s function to ensure she has every opportunity to present her case within the bounds of the Act and the Rules.

1. Finally can I say that each application for legal representation must be considered on its own facts and circumstances having regard to the provisions of section 43 of the Act, and insofar as the respondent submits that legal representation on behalf of the respondent ought be granted in the interests of justice as a matter of policy, this submission is rejected.

1. Therefore the Order of the Tribunal will be that the respondent have leave to be legally represented but it be confined to “in-house” lawyers.