Rule v Crosby

[2014] QCATA 341

CITATION:	Rule v Crosby [2014] QCATA 341
PARTIES:	Gorgea Rule (Respondent) v Matthew Crosby
(Applicant/Appellant)
APPLICATION NUMBER:	APL436-14
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Stilgoe OAM
DELIVERED ON:	11 December 2014
DELIVERED AT:	Brisbane
ORDERS MADE:	1. Leave to appeal refused.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL –BUILDING DISPUTE – APPLICATION FOR LEAVE FOR LEGAL REPRESENTATION – where
application for leave to be legally represented
filed shortly before hearing – where tribunal called for submissions from respondent – where
respondent failed to serve submissions on
applicant – whether failure to provide natural justice – whether tribunal correctly exercised
discretion - whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal
Act 2009 (Qld) s 43
House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).
REASONS FOR DECISION

[1]      Mr Crosby is a builder. He is claiming payment of $30,864.40 that is outstanding under a building contract. Ms Rule is counterclaiming $65,000 damages for breach of contract and the cost of rectification of defects.

[2]      The hearing was listed for 9 and 10 October 2014. On 15 September 2014, Ms Rule filed an application for leave to be legally represented. A senior member of the tribunal refused the application.

[3]      Ms Rule wants to appeal that decision. She submits that the learned Senior Member failed to provide natural justice because he received, and acted upon, submissions filed by Mr Crosby that were not copied to Ms Rule. She submits that the learned Senior Member failed to provide

reasons for his decision. She submits that the learned Senior Member’s

decision was wrong in principle because the dispute involves complex issues that, without legal representation, Ms Rule cannot address properly. She submits there is a material injustice in requiring a registered nurse to act in a building dispute against a registered builder.

[4]      Because this is an appeal from a decision of the tribunal that is not a final decision, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

[1]

[2]

[5]      One ground of appeal can be disposed of quickly. As Ms Rule was

entitled, she requested reasons for the learned Senior Member’s decision

and he provided them. There can be no suggestion that the learned
Senior Member failed to provide reasons for his decision.

[6]      By directions of 18 September 2014 Mr Crosby was required to file and serve his submissions in response to the application by 26 September 2014. He filed his response on 25 September and it is clear from his reasons for decision[3] that the learned Senior Member read those submissions.

[3]4 Reasons for decision at [2].

[7]      The learned Senior Member’s directions did not include a right of reply by

Ms Rule. That is understandable, given the late filing of the application

and the looming hearing date. Mr Crosby’s failure to serve his

submissions might have been a lack of procedural fairness if Ms Rule had a right of reply. It might also have been a lack of procedural fairness if the

learned Senior Member relied on Mr Crosby’s submissions. His reasons

for decision show, however, that he did not. In the particular circumstances, the learned Senior Member did not fail to provide natural justice.

[8]      The appeal tribunal will not interfere with the way the learned Senior Member exercised his discretion unless it can be shown that the learned Senior Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters4. Just because the appeal tribunal, given a better explanation of the basis for the application, might exercise the discretion differently, is not a basis for changing the decision. Ms Rule must show that, on the material before the learned Senior Member, the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[5].

[5] 

[9]      Ms Rule submits that the case does involve complex issues of law. She has provided a seven-page schedule that sets out the issues of fact and law that need to be determined in the dispute. It would have been useful if the learned Senior Member had access to this document, or something like it. As he observed in his reasons for decision[6], the application before him consisted of three short paragraphs. Ms Rule did not attempt to explain to the learned Senior Member why the dispute was complex.

[6] 

[10]     The learned Senior Member examined the application and the response[7]. He formed the view that the dispute was not complex. Based on the material that was before the learned Senior Member, I can find no reason to disagree with that conclusion.

[7] 

[11]     The learned Senior Member did not discuss the relative power imbalance between a nurse and a builder because, in his view, Ms Rule had not established that there were complex issues of fact and law. Although the tribunal may allow representation if the interests of justice require[8], the factors the tribunal may consider are limited[9]. The relevant consideration in this dispute was whether or not the dispute involved complex questions of law or fact[10]. As I have observed, the learned Senior Member found that Ms Rule did not satisfy this threshold test.

[8] 

[9] 

[10] 

[12]     There is no reasonably arguable case that the learned Senior Member was in error in the exercise of his discretion.

[13]     The hearing of the dispute has been adjourned pending the determination of this appeal. Given that time is no longer of the essence, if Ms Rule still considers she can demonstrate that the dispute involves complex issues of law and fact, she should file a fresh application for leave, which will be determined by the member presiding at the hearing.

[14]     Leave to appeal should be refused.

QCAT Act s 142(3)(a)(ii).

Pickering v McArthur [2005] QCA 294 at [3].

House v The King (1936) 55 CLR 499, at 504.

Lovell v Lovell (1950) 81 CLR 513.

Reasons for decision at [3].

Reasons for decision at [7].

QCAT Act s 43(1).

By QCAT Act s 43(3).

Section 43(3)(b).