Susanna and John Pty Ltd v Trident Ashgrove JV Pty Ltd

[2010] QCAT 170

CITATION: Susanna and John Pty Ltd v Trident Ashgrove JV Pty Ltd [2010] QCAT 170

PARTIES:	Susanna and John Pty Ltd
v
Trident Ashgrove JV Pty Ltd as Trustee and Tribune Properties Pty Ltd

APPLICATION NUMBER:   RET021-09   

MATTER TYPE: Retail shop leases matters

HEARING DATE:     27 April 2010

HEARD AT:  Decision on the papers

DECISION OF: Peta Stilgoe

DELIVERED ON: 27 April 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Application for leave for legal representation refused

CATCHWORDS :  Application for legal representation

APPEARANCES and REPRESENTATION (if any):

Decision on the papers

REASONS FOR DECISION

1. Section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides that the main purpose is to have parties represent themselves unless the interests of justice require otherwise.

2. Parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right.  In case where parties seek leave to be represented, the Tribunal must be satisfied that the interests of justice require it.

3. The respondent requests legal representation on the basis that the matters before the tribunal are complex issues of fact and law, the quantum of the applicant’s claim is “concerning”, this is the fourth application to the tribunal in respect of the same retail shop lease and there are previous consent orders that purported to be in full and final settlement of all matters.

4. The applicant objects to the respondent having legal representation because the application was filed late, the dispute may have a long history but the facts are presented in clear and simple terms, the parties can seek advice by telephone during the conference, the member presiding over the conference has a directions power, and the appointment of a legal representative would put the applicant at a disadvantage.

5. 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. 

6. Under section 29 of the Act, as the applicant has pointed out, the tribunal has a positive duty to ensure that each party to the proceeding understands the practices and procedures of the tribunal, the nature of assertions, any decision of the tribunal relating to the proceedings and any views expressed by a party or witness. 

7. 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. 

8. The tribunal does not consider that the presence of a legal representative in this 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.  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 contemplated by the Act:

   a.From a reading of the documentation provided by the parties, the tribunal has been unable to ascertain any such complex question of law or fact that would require input from a legal representative.

   b.The statements of evidence provided by the respondent are detailed, but not so extensive that they are difficult to manage without the assistance of legal representation.

   c.The respondent may well be concerned about the quantum of the claim. Most respondents in this tribunal are. It is not a ground for allowing legal representation.

   d.The respondent has not pointed to any reason why the presence or otherwise of legal representation in this application will prevent further applications.

   e.The consent order, and its ramifications, is a matter for discussion at the compulsory conference. It is not, in itself, a reason for the appointment of legal representation.

9. The respondent’s application for leave to be legally represented at the compulsory conference is dismissed.