Armstrong v Plumbing Industry Council (No 2) [2014] QCATA 34

CITATION: Armstrong v Plumbing Industry Council (No 2) [2014] QCATA 34 PARTIES: Gary Armstrong (Appellant) v Plumbing Industry Council (Respondent) APPLICATION NUMBER: APL509-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Howard DELIVERED ON: 7 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Plumbing Industry Council is granted leave to appear in these proceedings through Simon Hart. CATCHWORDS: APPEAL- APPLICATION FOR LEAVE FOR REPRESENTATION- whether proceeding relates to taking disciplinary action or reviewing a decision about taking disciplinary action- whether proposed representative is an Australian lawyer or government legal officer Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43 Legal Profession Act 2007 (Qld) s 6, 23,24 O’Grady v Northern Queensland Co Ltd (1990) 2 ALR 213 Oceanic Life Ltd v Chief Commissioner of Stamps (1999) 168 ALR 211 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] It is useful to set out the history of these proceedings at the outset. Mr Armstrong reviewed a decision made by the Plumbing Industry Council (PIC) to take disciplinary action against him which included suspending his plumbing licence and imposing a fine on him (Tribunal file OCR383-12). [2] After a hearing, the Tribunal made orders which, in essence, allowed him to continue in his trade and reduced the fine that had been imposed by the PIC, but required some rectification works be done by Mr Armstrong. It further ordered that if he failed to pay the fine by 31 July 2013, or complete the rectification works by 31 October 2013, then his licence was suspended for 12 months following the default. [3] Subsequently, he brought an application for reopening, correction, renewal or amendment (Tribunal file REO009-13) seeking orders relating to the identification of rectification work, as well as an extension of time to pay the fine imposed. That application was dismissed by the Tribunal following a hearing. The Tribunal order dismissing that application is now the subject of these appeal proceedings. [4] For completeness, I note that he filed several other applications in OCR290-13, OCR292-13 and REO013-13, all of which have been dismissed and are not relevant to the matters currently under consideration. [5] In the appeal proceedings, Mr Armstrong subsequently filed a pre-emptive application seeking a direction that ‘Mr Hart (who had represented the PIC in the reopening application) be removed from the proceeding’. The PIC then applied for leave to be represented at the hearing by Mr Simon Hart, who is a senior advisor employed in Building Codes Queensland in the Department of Housing and Public Works. The parties arguments [6] In support of its application, the PIC submits variously that because the proceeding relates to taking disciplinary action or reviewing a decision about disciplinary action it is entitled to be represented under s 43 of the QCAT Act; and that because it is a disciplinary proceeding that representation is appropriate as the application for leave to appeal and appeal is likely to involve legal issues in respect of which the Appeal Tribunal might be assisted by submissions from a person with legal training. [7] It submits that although its proposed representative, Mr Hart, is not an Australian legal practitioner (because it acknowledges he does not hold a practicing certificate), that he may be a government legal officer pursuant to the Legal Profession Act 2007 (LP Act). Mr Hart works for a government department and apparently seeks to represent entities such as the PIC and the Pool Safety Council in proceedings before the Tribunal. -- 2 of 4 -- 3 [8] PIC says that if it is accepted that the proceeding relates to disciplinary action, and it is accepted that Mr Hart is a government legal officer then he can represent the PIC without leave. If that is not accepted, PIC argues that the Tribunal should be satisfied that he is an appropriate person to represent PIC for several reasons. He was a practicing solicitor for 17 years; PIC considers him suitable; he was granted leave in the reopening proceeding to represent PIC; and, it says, Mr Armstrong’s submissions against granting leave are not persuasive. [9] Mr Armstrong submits, while apparently acknowledging that representation is a right for some parties including in disciplinary proceedings, that all parties must represent themselves before QCAT; and that QCAT may agree to a party being represented if all parties have agreed to it, and that he opposes it. He submits, in effect, that it is unfair for a lawyer to represent the PIC because Mr Hart identifies procedural issues with his (Mr Armstrong’s) applications or material. He suggests that the PIC Registrar should represent it. Consideration of the issues [10] Section 43 of the QCAT Act provides for parties to generally represent themselves in Tribunal proceedings. But as both parties acknowledge in their submissions, a party may be represented by someone else in specified circumstances including if the proceeding relates to the taking of disciplinary action, or reviewing a decision about taking disciplinary action; or if leave has been granted to the party for representation.1 In deciding whether to give leave for representation, the tribunal may consider specified factors as supporting the giving of leave, namely if the party is a State agency; the proceeding is likely to involve complex questions of law and fact; another party is represented; or all of the parties agree to the party being represented.2 However, a person who is not an Australian legal practitioner or government legal officer may not represent a party unless the tribunal is satisfied that the person is an appropriate person to represent the party: s43(4).3 [11] Phrases such as related to have generally been given broad meaning. No more than a direct or indirect connection between the two subject matters has been required.4 It has been held that adding words of like effect must have been intended to connote a broader meaning than the original words had.5 [12] The history of the proceeding reveals a connection between each of Mr Armstrong’s applications before the Tribunal. Although the application for leave to appeal and appeal itself is against orders dismissing the 1 Section 43(1) and (2). 2 Section 43(3). 3 Section 43(4). 4 For example, see O’Grady v Northern Queensland Co Ltd (1990) 2 ALR 213 at 226, 228. 5 For example, see Oceanic Life Ltd v Chief Commissioner of Stamps (1999) 168 ALR 211 at 224-25 per Fitzgerald JA. -- 3 of 4 -- 4 application to reopen, correct, renew or amend an order, there is a direct connection between the application to reopen, correct, renew or amend an order and Mr Armstrong’s review of disciplinary action taken against him. Each of the applications is related to reviewing the decision to take disciplinary action against him. Therefore, both parties are entitled to be legally represented in the proceedings, if they desire to be, in accordance with s 43. [13] However, s43(4) places some limits on who may legally represent a party. A person who is not an Australian legal practitioner or government legal officer may not do so unless the Tribunal is satisfied the person is appropriate to represent the party. Having regard to s 6 of the LP Act, Mr Hart is not an Australian legal practitioner, because he does not hold a current practicing certificate. [14] Is he a government legal officer? A person is a government legal officer if their employment or appointment is in a government department or agency in which they are exempted from holding a practicing certificate. Specifically, government legal officers are not required to hold a practicing certificate.6 [15] Mr Hart is employed as a senior adviser by Building Codes Queensland in the Department of Housing and Public Works. He is not directly employed by PIC. He is not employed as a legal officer by the Department which employs him. He says that he seeks to represent entities before the Tribunal. However, that does not make him a government legal officer. Government employees who are not legal officers frequently appear in proceedings for their employing agency before the tribunal. Of course in this instance, he is not employed by the agency which seeks to have him represent it, but by another government agency. [16] It is reasonable to infer, and I do, that the role of a senior advisor which is undertaken by Mr Hart encompasses many duties unrelated to legal work. On the evidence available, I am not satisfied that Mr Hart is a government legal officer. [17] Mr Armstrong opposes leave being granted for representation and suggests that the PIC Registrar should represent it. However, it is not for Mr Armstrong to dictate who the PIC chooses to represent it. PIC, which is effectively a State agency, is entitled to legal representation in the proceedings if it desires it. It considers Mr Hart a suitable person to represent it although he is not an Australian legal practitioner or a government legal officer. He did represent it in the reopening proceeding. He is qualified in law and has in the past practised as a solicitor. I am satisfied that Mr Hart is an appropriate person to represent PIC in the proceedings. [18] I grant leave accordingly. 6 LP Act, ss 23 and 24. -- 4 of 4 --