Tucker v Queensland Building Services Authority
[2011] QCAT 43
•10 February 2011
| CITATION: | Tucker v Queensland Building Services Authority [2011] QCAT 43 | |
| PARTIES: | Mr John Tucker | |
| v | ||
| Queensland Building Services Authority | ||
| APPLICATION NUMBER: | GAR276-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 10 February 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave for the respondent to be represented in the proceeding by an in-house legal officer |
| CATCHWORDS : | LEAVE FOR LEGAL REPRESENTATION – where party is a State agency – whether complex questions of fact and law – whether desirable that agency be represented by the decision maker – the model litigant Queensland Civil and Administrative Tribunal Act 2009 ss 21, 29, 43, 100 Queensland Civil and Administrative Tribunal Rules 2009 R53 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Authority has applied for leave to be legally represented in these proceedings. Mr Tucker opposes the application.
Section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that the main purpose of the section is to have parties represent themselves unless the interests of justice otherwise require. Section 43(3) sets out those matters to which the tribunal may have regard in considering whether to allow legal representation. Relevantly:
a)The party is a State agency;
b)The proceeding is likely to involve complex questions of fact or law.
The Authority is a State agency and, being a body corporate, it will have to be represented by a natural person.
The real question is whether the proceeding raises complex questions of fact or law. The Authority submits that, as determination of this dispute will require submissions on provisions of the Queensland Development Code, submissions on part 6 and section 86 of the Queensland Building Services Authority Act 1991 (QBSA Act) and submissions as to the meaning of the term “defective”, it is a proceeding that raises complex questions of fact and law.
With all due respect to the Authority, submissions to the tribunal as to section 86 of the QBSA Act and the meaning of “defective” are common. I can see nothing in this proceeding that elevates the dispute to one that is complex. I concede that submissions about the interpretation of the Queensland Development Code may be novel in this jurisdiction, but that does not make the proceeding complex.
However, the Authority has referred me to a number of the tribunal’s decisions in which it was determined that it is not practical or desirable for a State agency to be represented in a proceeding by a decision-maker.[1] I agree with that proposition. Therefore, it is appropriate to give the Authority leave to be represented by an in-house legal officer pursuant to Rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009.
[1]See, for example, Boor v Queensland Building Services Authority [2010] QCAT 41 at [22].
I note Mr Tucker’s observations that he will not have the benefit of legal representation. He should take some comfort from the provisions of:
a)Section 21(1) of the QCAT Act, which requires the Authority to “use [its] best endeavours to help the tribunal so that it can make its decision on the review”. The Authority is required to conduct this proceeding as a “model litigant”: that is, it has an obligation to give the tribunal all necessary information, both favourable and unfavourable, to assist in the determination of the dispute.
b)Section 29 of the QCAT Act which imposes an obligation on the tribunal to ensure that Mr Tucker understands the practices and procedures of the tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions and any decision of the tribunal relating to the proceeding.
c)Section 100 of the QCAT Act, which provides that each party should bear the party’s own costs of the proceeding.
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