Body Corporate for Oyster Cove v M D Allen & Co Pty Ltd [2015] QCAT 187

CITATION: Body Corporate for Oyster Cove CTS 24428 v. M D Allen & Co. Pty Ltd [2015] QCAT 187 PARTIES: Body Corporate for Oyster Cove CTS 24428 (Applicant) v M D Allen & Co. Pty Ltd (Respondent) APPLICATION NUMBER: BDL066-15 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 2 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondent’s application to adjourn the Compulsory Conference is refused. 2. Both parties have leave to be legally represented at the Compulsory Conference. 3. The Compulsory Conference listed in Brisbane at 1.30pm on 3 June 2015 is confirmed. CATCHWORDS: LEAVE FOR LEGAL REPRESENTATION – whether interests of justice – where purpose to promote settlement – where allegations of acrimony between parties – where complex questions of fact and law – where legal representation promoting settlement may reduce costs – whether other party disadvantaged – where opportunity to procure legal advice – where unsubstantiated assertion of conflict of interest involving parties’ representatives - -- 1 of 6 -- 2 REQUEST TO ADJOURN COMPULSORY CONFERENCE – where notification of proposed legal representative’s absence less than two weeks before conference – where other party’s representative already made arrangements based on scheduled date – where issues that may require urgent rectification Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4 and 43 Aon Risk Services Australia Ltd v. Australian National University (2009) 239 CLR 175 Creek v. Raine & Horne Mossman [2011] QCATA 226 DJ v. Lutheran Church of Australia, Queensland District and Ors [2012] QCAT 39 F.K. Gardner & Sons Pty Ltd v. Grant [2010] QCAT 585 Greg Black Constructions Pty Ltd v. Brodie and Anor [2011] QCAT 671 James v. Robins [2012] QCAT 400 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this Application about? [1] The Body Corporate for Oyster Cove CTS 24428 claims M D Allen & Co. Pty Ltd performed defective and incomplete building work. M D Allen & Co has counter-claimed for the cost of performing work for the Body Corporate. [2] M D Allen & Co applied to the Tribunal to be legally represented in the proceedings and to adjourn the Compulsory Conference on 3 June 2015, because its proposed representative will be overseas from 1 June 2015 to 18 June 2015. [3] I made orders granting leave for legal representation for the Compulsory Conference and refusing the adjournment on 29 May 2015. The Body Corporate’s representative, Mr Peter Walker has requested reasons for my orders. These are my reasons. -- 2 of 6 -- 3 Is it in the interests of justice to grant leave for legal representation? [4] Parties represent themselves in the Tribunal unless the interests of justice require otherwise.1 I am satisfied the interests of justice warrant representation at the Compulsory Conference because of the following factors. Promote a settlement of the dispute [5] To date, the parties have met on no fewer than two occasions in an attempt to resolve their issues, without success.2 The purposes of a Compulsory Conference include identifying and clarifying the issues in dispute and to promote a settlement of the dispute. Legal representation in a Tribunal forum tailored to promoting settlement may well assist the parties achieve a settlement of their issues. [6] The dispute includes allegations of acrimony between the parties.3 Legal representation may therefore assist in putting an appropriately dispassionate distance between the parties to facilitate a satisfactory resolution of the issues in dispute. This will necessarily require the representatives to concentrate on the merits of the dispute, rather than assuming unnecessarily adversarial roles.4 Complex questions of fact or law [7] The alleged documents forming the Contract are yet to be filed. The Body Corporate refers to a “Master Builders standard format Contract” with “companion documents” and “Contract Information statement approved by the QBCC and as required by s99(1) of the Domestic Building Contracts Act 2000”. [8] That the Contract might be or include a “Master Builders standard format Contract” does not necessarily reduce complexity. Issues will include whether all or any of these documents are the Contract, the scope of work and the interpretation and interaction of particular clauses and any insertions and variations by the parties, requiring the application of legislation and relevant case law. Legal representation will assist the Tribunal resolve these issues. [9] Allegations of defective and incomplete work will require consideration of the standard of work, whether each item of work was defective or incomplete, the value of each item of incomplete or defective work and the application of legal principles to a Contract and accompanying documents yet to be filed. This may also entail evaluating conflicting expert evidence. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(1). 2 Alleged defective work / incomplete work schedule filed 13 April 2015, Annexure A at paragraph 6. 3 Response and/or counter-application filed 18 May 2015, Annexure A at paragraph 7(f). 4 Greg Black Constructions Pty Ltd v. Brodie and Anor [2011] QCAT 671 at [18], citing with approval F.K. Gardner & Sons Pty Ltd v. Grant [2010] QCAT 585. -- 3 of 6 -- 4 [10] I am satisfied these issues are sufficiently complex to warrant legal assistance to assist in their resolution. Costs [11] The Body Corporate is understandably concerned that it would be economically disadvantaged by having to incur more legal costs and fees if legal representation was allowed. [12] The Tribunal is mandated to ensure proceedings are conducted speedily, with a minimum of expense and inconvenience.5 However, the Tribunal must also encourage the early and economical resolution of disputes.6 [13] I am satisfied that this is most likely to be achieved in this case by allowing legal representation, given the parties’ previous failed attempts to engage and achieve resolution of their issues. The evidence to date suggests the dispute is more likely to escalate and incur upon the resources of both the parties and the Tribunal without legal representation, at least at the Compulsory Conference stage: QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.7 [14] I therefore consider that by promoting settlement where the parties themselves have previously been unable to attain a resolution, legal representation at the Compulsory Conference may save costs to the parties. Whether leave for legal representation should extend beyond the Compulsory Conference can be determined at the Compulsory Conference, should the matter not be resolved. No disadvantage to the Body Corporate [15] The Body Corporate claims it will be disadvantaged by having to request time to seek its own legal advices, the other party’s legal representative having superior knowledge of process and laws and an alleged conflict of interest by that legal representative previously acting for the Body Corporate’s representative, Mr Peter walker. [16] Granting leave for legal representation is not a necessary pre-cursor for parties to procure legal advice. The events leading to the dispute are alleged to have occurred in August 2014. The Application was filed in April 2015. Issuing proceedings is a very serious step for anyone.8 The 5 Queensland Civil and Administrative Tribunal Act 2000 (Qld) ss 3(b) and 4(c). 6 Queensland Civil and Administrative Tribunal Act 2000 (Qld) s 4(b). 7 Creek v. Raine & Horne Mossman [2011] QCATA 226 at [13], citing with approval Aon Risk Services Australia Ltd v. Australian National University (2009) 239 CLR 175, 217. 8 James v. Robins [2012] QCAT 400 at [23]. -- 4 of 6 -- 5 Body Corporate need not have waited until now to seek legal advice. Both parties have had the opportunity to seek their own legal advice. Whether or not the Body Corporate now chooses to procure legal advice or representation does not amount to unfairness:9 Having one party represented while another party is not represented does not necessarily amount to unfairness. It can be a legitimate and understandable option for a person to represent themselves. Financial reasons in some cases may also preclude the engaging of legal representation by one party while another party in the proceeding has the financial means to meet its legal costs. Inequality of access to financial resources does not at QCAT result in inequality of access to justice. It is an express object of QCAT to ensure that fairness and justice (are) delivered in the manner by which it deals with matters before it. The legislation under which QCAT operates has statutory safeguards to ensure that parties are treated fairly. The Tribunal must act fairly and according to the substantial merits of the case. The Tribunal has a positive obligation to ensure that each party understands the practices and procedures of the Tribunal and the nature of assertions made in the proceeding and the legal implications of the assertions. Those obligations are taken seriously and ensure that a party who is not legally represented has the same opportunity to a fair outcome as does a party who is legally represented. [17] I am also not satisfied to refuse leave for legal representation based merely on an unsubstantiated assertion of a conflict of interest that does not involve the actual parties to the dispute but rather, their respective representatives. The Body Corporate has not provided particulars or evidence of M D Allen’s proposed legal representative’s knowledge of its representative and how this prejudices the Body Corporate in this particular matter. Should the Compulsory Conference be adjourned? [18] M D Allen also applied to adjourn the Compulsory Conference on the basis that its proposed legal representative is overseas from 1 June 2015. M D Allen claims that its proposed legal representative has a detailed knowledge of the dispute and the Tribunal scheduled the conference without first attaining its suitability to M D Allen and its legal representative. [19] The Body Corporate filed its original application on 13 April 2015. The Tribunal scheduled the Compulsory Conference on 30 April 2015.10 M D Allen did not file its application for leave to be legally represented until 22 May 2015. The Tribunal therefore could not have scheduled the conference on a date suitable to M D Allen’s proposed legal representative. This is not a ground to adjourn the application. 9 DJ v. Lutheran Church of Australia, Queensland District and Ors [2012] QCAT 39 at [14] to [16]. 10 Directions dated 30 April 2015 at paragraph 2. -- 5 of 6 -- 6 [20] Regardless, the Tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick11 and conduct proceedings in a way that minimises costs to the parties and is quick as is consistent with achieving justice.12 It is not “fair”, “economical” or “quick as is consistent with achieving justice” to adjourn a Compulsory Conference based on notification of a proposed legal representative’s leave arrangements less than two weeks before the Conference. [21] The Body Corporate’s representative has made his own arrangements based on the scheduled date of the conference. The application includes issues that may require urgent rectification.13 M D Allen has had sufficient time to engage an alternative legal representative, be it from the same firm or another firm. [22] The application to adjourn the Compulsory Conference is therefore refused. What are the appropriate Orders? [23] The Tribunal’s objectives and a timely and efficient resolution of the dispute will therefore best be achieved by the following Orders: 1. The Respondent’s application to adjourn the Compulsory Conference is refused; 2. Both parties have leave to be legally represented at the Compulsory Conference; and 3. The Compulsory Conference listed in Brisbane at 1.30pm on 3 June 2015 is confirmed. 11 Queensland Civil and Administrative Tribunal Act 2000 (Qld) s 3(b). 12 Queensland Civil and Administrative Tribunal Act 2000 (Qld) s 4(c). 13 Body Corporate submissions dated 29 May 2015. -- 6 of 6 --