Smith v Condie t/a Listonia Landscaping
[2010] QCAT 256
•31 May 2010
| CITATION: | Smith v Condie t/a Listonia Landscaping [2010] QCAT 256 |
| PARTIES: | Carl Stephen SMITH |
| v | |
| Garry John CONDIE trading as Listonia Landscaping |
| APPLICATION NUMBER: | BD340-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 31 May 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 31 May 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave for respondent to be legally represented refused. |
| CATCHWORDS : | Section 43 of Queensland Civil and Administrative Tribunal Act 2009 – procedural fairness – absence of complex question of law or fact |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
An application has been made to the Tribunal by the respondent seeking leave to be legally represented in these proceedings which had originally been commenced in the Commercial and Consumer Tribunal.
From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Commercial and Consumer Tribunal on the commencement of the Queensland Civil and Administrative Tribunal Act 2009 (the Act).
Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. According to section 271 of the Act, the Tribunal must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
The enabling Act in this case, the Queensland Building Services Authority Act 1991 does not contain any relevant provisions for a party in this type of proceeding to be legally represented.
Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) however does provide as follows (where relevant):
1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
2) In a proceeding, a party—
a) may appear without representation; or
b) may be represented by someone else if—
(i) the party is a child or a person with impaired capacity; or
(ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
(iii)an enabling Act that is an Act, or the rules, states the person may be represented; or
(iv)the party has been given leave by the tribunal to be represented.
3) 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—
a) the party is a State agency;
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….
It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right. In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
The respondent has previously sought leave to be legally represented in this proceeding and leave was refused in December 2009. Since that time a determination has been made about the Tribunal’s jurisdiction to hear this proceeding and a compulsory conference has been held. A hearing of the proceeding has been scheduled on 25 June 2010.
The respondent has applied for leave to be legally represented at the hearing. He submits that he does not have the skills or experience to represent himself. He submits that there is an educational and intellectual imbalance between himself and the applicant. He submits that it is in the interests of justice that he is granted leave to be legally represented.
In his submissions the respondent does not identify any complex question of law or fact in this proceeding to support his application. Instead he relies on provisions in repealed legislation that applied to the former Commercial and Consumer Tribunal.
10. While section 271(2) of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Queensland Civil and Administrative Tribunal has the functions of the former tribunal and can only make a decision the former tribunal could have made, section 271(2) does not result in the provisions in the repealed legislation as to the granting of leave for legal representation being kept in force for pending proceedings. Provisions relating to the granting of leave for legal representation since 1 December 2009 are found in section 43 of the Queensland Civil and Administrative Tribunal Act 2009.
11. The questions in dispute in this proceeding involve the respective rights of parties to a minor works contract entered into for the construction of a driveway, retaining walls and staircases in November 2008 for a price of $28,236. The applicant contends that the respondent breached the contract and claims recovery of loss alleged to result from the breach. The respondent counterclaimed for money allegedly owing under the contract.
12. In this case, the Tribunal is unable to discern any complex questions of law or fact. The respondent and the applicant already know the facts of their respective cases. It is the responsibility of the member hearing the matter to decide on any disputed facts and on the respective claims of the parties. The parties can give their own evidence in support of their respective claims and can make their submissions to the Tribunal as to why the claims of the other party are not sustainable.
13. Under section 28 of the Act the Tribunal must act fairly, must act in accordance with the substantial merits of the case, must observe the rules of natural justice, must act with as little formality and technicality as proper consideration of the issues permit and must ensure that all relevant material is disclosed as far as is practicable.
14. Under section 29 of the Act the Tribunal must take all reasonable steps to ensure that each party understands the practices and procedures of the Tribunal, the nature of assertions made in the proceedings and the legal implications of the assertions. The Tribunal must also take all reasonable steps to understand the expressed views and assertions of a party to the proceeding having regard to the party’s age, any disability, cultural, religious and socioeconomic background. The Tribunal is expected to explain matters to a person in a proceeding as part of the steps required to ensure that that person understands the matter.
15. Through its own processes and Rules, the Tribunal has from its commencement set in place arrangements that should result in parties to a proceeding being accorded procedural fairness and in matters being dealt with in a way that is accessible, fair, just, economical, informal and quick. At a hearing a self represented party is entitled to have maters explained about the hearing process, the assertions made in the proceeding and the legal implications of those assertions.
16. The Tribunal does not accept that the presence of a legal representative for the respondent will enhance the level of procedural fairness afforded to the respondent in view of the clear statutory responsibilities already imposed on the Tribunal in sections 28 and 29 of the Act. The Tribunal has not been persuaded that granting leave to the respondent to be legally represented in the proceedings will advance the interests of justice as contended in the written submissions of the respondent.
17. The respondent can of course access legal advice in preparing his case without requiring leave under section 43 of the Act. The respondent is not prevented from presenting a case formulated with legal assistance. The application by the respondent for leave to be legally represented at the hearing is dismissed.
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