The Owners Strata Plan No 38308 v Gelder

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: The Owners Strata Plan No 38308 v Gelder [2023] NSWCATEN 5
Hearing dates: On the papers
Date of orders: 27 June 2023
Decision date: 27 June 2023
Jurisdiction:Enforcement
Before: Coleman SC ADCJ
Decision:

(1) The Tribunal refuses leave for the Applicant to be represented by Mr Atkin.

(2) The proceedings are to be listed for further directions on a date to be fixed by the Registrar after 1 August 2023.

Catchwords:

PRACTICE AND PROCEDURE - whether party should be granted leave to be represented by a solicitor who is a witness in the proceedings

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Cases Cited:

BTH v NSW Public Guardian [2016] NSWCATAP 12

Chapman v Rogers; Ex parte Chapman (1984) 1 QdR 542

Clay v Karlson (1997) WAR 493

Commissioner for Corporate Affairs v Harvey (1980) VR 669; [1980] VicRp 64

DVI v ZTT [2020] NSWCATEN 1

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Fields v Commissioner of Police, NSW Police Force [2017] NSWCATAD 311

Gelder v The Owners Strata Plan N0 38308 [2020] NSWCATAP 227

Gelder v The Owners Strata Plan 38308 [2021] NSWCATAP 109

Jeffrey v Associated National Insurance Co Ltd (1984) 1 QdR 238

The Queen v Silverstein [2021] VSCA 233

Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113

Texts Cited:

None cited

Category:Principal judgment
Parties: The Owners Strata Plan No 38308 (Applicant)
Michelle Gelder (Respondent)
Representation: Maddocks Lawyers (Applicant)
Respondent (Self-Represented)
File Number(s): PC 22/50317
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. By application for miscellaneous matters filed 9 November 2022 (referral application) The Owners – Strata Plan No 38308 (the Owners) sought that Michelle Gelder (Ms Gelder) be referred to the Supreme Court for contempt pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) or, in the alternative, sought a finding that Ms Gelder is in contempt of the Tribunal, an order for punishment and injunctive orders restraining Ms Gelder from communicating with five named persons in any of the manners identified in the application.

  2. Although Ms Gelder has not formally participated in the proceedings, as will be seen, she has engaged in extensive communications with the Tribunal in relation to the Owners’ referral application. It is readily apparent that, notwithstanding her absence of formal submissions to that effect, Ms Gelder has resisted the Owners’ application.

  3. For the reasons which follow, this decision is concerned with whether the Owners should have leave to be represented by their solicitor, Mr Atkin, pursuant to the provisions of s 45(1)(b)(ii) of the CAT Act.

Background

  1. Strata Plan No 38308 is a residential building in Cremorne which has six units over three levels. Ms Gelder is the owner of a Lot in Strata Plan No…

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Details
Case
[2023] NSWCATEN 5
Decision Date

CaseChat Overview and Summary

In the case of The Owners Strata Plan No 38308 v Gelder, the dispute arose within the context of strata title law in Australia. The applicants, who are the owners of a strata plan, sought to challenge certain decisions made by the respondent, Gelder, who is presumably a body corporate or another party involved in the strata arrangement. The proceedings were brought before the relevant tribunal, which was tasked with determining whether the applicants should be granted permission to be represented by a solicitor who was also a witness in the proceedings.

The primary legal issue before the tribunal was whether it was appropriate to grant the applicants leave to be represented by a solicitor who would also serve as a witness. This issue raised questions about potential conflicts of interest and the proper administration of justice. The tribunal needed to consider the principles of fairness and the integrity of the legal process in making its decision.

The tribunal, in its judgment, carefully examined the potential for conflicts of interest that could arise from the solicitor's dual role as both a representative and a witness. It concluded that allowing the solicitor to represent the applicants while also testifying would likely compromise the fairness of the proceedings. The tribunal emphasised the importance of maintaining the separation between advocacy and witness roles to preserve the impartiality of the tribunal and the integrity of the legal process. Consequently, the tribunal refused the applicants leave to be represented by Mr Atkin. The tribunal also directed that the proceedings be listed for further directions after 1 August 2023, to allow the applicants to seek alternative representation and to ensure that the matter could proceed without further delay.

Orders

Orders of the court

(1) The Tribunal refuses leave for the Applicant to be represented by Mr Atkin.

(2) The proceedings are to be listed for further directions on a date to be fixed by the Registrar after 1 August 2023.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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