Crosby v Rule [2014] QCAT 563

CITATION: Crosby v Rule [2014] QCAT 563 PARTIES: Matthew Crosby (Applicant) v Georgea Rule (Respondent) APPLICATION NUMBER: BDL041-14 MATTER TYPE: Building matters HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 6 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for legal representation is refused. CATCHWORDS: LEGAL REPRESENTATION – where no particulars of how the matter is complex both with respect to the facts and the law – whether prejudice to the applicant. 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) (QCAT Act). REASONS FOR DECISION [1] In February 2014, the applicant filed an application for the payment of balance of money owed under a building contract from the respondent. The respondent filed a response to the application listing a small number of items of defective or incomplete work, most of which appear to be minor defects. I should also say there is an allegation that the roof pitch was built to 3 degrees as opposed to 5 degrees, which, it is contended, affects the manufacturer’s warranty. -- 1 of 3 -- 2 [2] On 30 July 2014, at a directions hearing where the respondent was legally represented by Mr Pitman of Morgan Conley, solicitors, I made directions for the filing of material and listed the matter for hearing on the 9th and 10th of October 2014. Then, on 15 September 2014 an application for legal representation was filed by the respondent1. The Tribunal made directions for the filing of submissions on 18 September 2014. After considering the material and the submissions filed I refused the application. The respondent has asked for reasons. [3] The submission in support of the application were of little assistance. After setting out the power to grant representation in s 43 of the QCAT Act and referring to Urguhart v Partington (No 2),2 which simply recites a general principle about granting leave where the case raises complex issues of law, the respondent submitted: In this matter it is clear that the case involves complex questions of fact and law, associated with the rectification of defects under the building contract. The Applicants (sic) statement contains 99 paragraphs of allegations, spanning 13 pages with 30 plus exhibits. The Respondent’s response is a 16 page response with 15 exhibits comprising 136 pages and expert evidence. [4] The balance of the submission refers to how the Tribunal will be assisted by the grant of legal representation in “coming to a just and proper resolution of the matter”. [5] It is from this submission that I am supposed to discern the complex issues of law and the complexity of the factual dispute in order to exercise my discretion under s 43 of the QCAT Act. [6] As section 43 states, the main purpose of the section “is to have parties represent themselves unless the interests of justice require otherwise”. The granting of representation, including legal representation, is discretionary and to assist the decision maker, subsection (3) sets out some of the circumstances that the Tribunal can consider. The particular criteria relied on here is subsection (3)(b), that the proceeding is likely to involve complex questions of fact or law. Merely asserting that this is the case, without any attempt to descend into particulars of how the case is complex in fact or law, does not assist me in the exercise of discretion. If I were to simply grant the application on the basis of this submission, I would be doing so contrary to principle. [7] I also took into account the submission of the applicant and had regard to the issues set out in the application and response, which demonstrates that this case concerns uncomplicated factual issues about defective or incomplete building work. 1 There was an earlier application but it seems this was not dealt with. 2 [2012] QCAT 371. -- 2 of 3 -- 3 [8] I took the view that it would be unduly prejudicial to the applicant to allow the respondent legal representation at this late in the day when the matter was to proceed to hearing on 9 October 2014. The respondent was always at liberty to renew the application before the member hearing the proceeding. [9] Those are the reasons for my decision on 29 September 2014. -- 3 of 3 --