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
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
-
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.
-
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.
-
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
-
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…
Keep reading for free
Create a free CaseChat account to read The Owners Strata Plan No 38308 v Gelder and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] NSWCATEN 5
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.