Chelbrooke Homes Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 96

CITATION: Chelbrooke Homes Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 96 PARTIES: Chelbrooke Homes Pty Ltd (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR024-18 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 3 April 2018 DELIVERED AT: Brisbane ORDERS MADE: Queensland Building and Construction Commission is granted leave to appear through an Australian legal practitioner or a government legal officer in this proceeding. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where application for leave opposed by other party – whether interests of justice require leave to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 43 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 53 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 18 December 2017, the Queensland Building and Construction Commission (QBCC) issued Chelbrooke Homes Pty Ltd (Chelbrooke Homes) a direction to rectify for defective building works of the concreting of driveway and paths at 22 Brut Street, Mount Cotton, in particular incorrect fall ratio, inconsistent colour and texture and no articulations to penetrations. [2] On 10 January 2018, Chelbrooke Homes lodged an application for review in respect of the QBCC’s decision. [3] On 6 February 2018, the QBCC lodged an application to be legally represented in this proceeding. [4] This application is opposed by Chelbrooke Homes, who have stated: We certainly understand that the QBCC is there to assist the Tribunal as they have clearly outlined in their application however we do not see this matter, at this point in time, involving complex questions of fact and law that will need to be addressed during this proceeding. Chelbrooke Homes sees this as an opportunity for the persons involved in the decision-making process in this matter sitting down face to face & working thru (sic) the issues involved as we were precluded by the QBCC from doing just that at the arranged site inspection on 05 December 2017. [5] The effect of s 43 of the QCAT Act is that parties in proceedings in this Tribunal are to represent themselves unless the interests of justice require otherwise. [6] Section 43 relevantly provides as follows: (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. -- 2 of 3 -- 3 (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. [7] In accordance with s 43(2)(b)(iv), the QBCC requires the leave of the Tribunal to be legally represented as it does not satisfy s 43(2)(b)(i) to s 43(2)(b)(iii). [8] The Tribunal’s discretion when considering whether to grant leave for a party to be represented is exercised in the context of the requirement to comply with the interests of justice as set out in s 43(1), as well as the additional factors set out in s 43(3). [9] As the QBCC is a State agency, rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) is also applicable. It provides as follows: (1) A State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceeding. (2) However, the State agency may appear through an Australian legal practitioner or a government legal officer only with the tribunal’s leave. [10] The proceedings involve the construction and/or placement of a concrete driveway and paths. Chelbrooke Homes is correct to point out that there are no complex questions of law or fact discernible at this point in the proceeding. I am not persuaded that it is in the interests of justice to grant leave under s 43 for the QBCC to be legally represented in this case. [11] An alternative to the QBCC being legally represented is to grant leave for it to appear through one of its employed Australian legal practitioners or government legal officers under rule 53. This would ensure that a legally trained person is able to assist the QBCC to fulfil its model litigant obligations. I note that the role of the QBCC in an administrative review proceeding, as set out in Practice Direction No 3 of 2013, is: …to use their best endeavours to assist the Tribunal so it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decision- maker’s role is not adversarial. [12] I grant leave under rule 53 for the QBCC to appear through an Australian legal practitioner or a government legal officer. -- 3 of 3 --