Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd v Quigan & Ors [2013] QCAT 128

CITATION: Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd v Quigan & Ors [2013] QCAT 128 PARTIES: Dalma Plastering Pty Ltd & Kenmont Investments Pty Ltd t/a Emerald Gardens Residential Resort (Applicant) v Mr Howard Quigan, Mrs Cherie Quigan, Ms Honara Graham (Respondent) APPLICATION NUMBER: OCL119-12 MATTER TYPE: Other civil dispute matters DECISION OF: Bernadette Rogers, Member DELIVERED ON: 5 April 2013 ORDERS MADE: 1. The respondents are granted leave to be represented. 2. For the purposes of Queensland Civil and Administrative Tribunal Act 2009 s 43(4)(b) Mrs Laurie Beales is not an appropriate person to represent the respondents. CATCHWORDS: Whether leave to be represented should be granted. Whether proposed representative an appropriate person. Queensland Civil and Administrative Tribunal Act 2009 s 43 Manufactured Homes (Residential Parks) Act 2003 s 71 Regal Waters Retirement Community Pty Ltd v Miller and Ors [2011] QCAT 479 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The park owners of Emerald Gardens Residential Resort (the park owners), filed an application on 13 November 2012 asking the tribunal to confirm Proposed Site Rent increases under the Manufactured Homes -- 1 of 4 -- 2 (Residential Parks) Act 2003 (MH(RP) Act) s 71. The proposed increases were documented in notices served on the respondent home owners on 9 October 2012. [2] The home owners filed a response and counter-application on 7 December 2012. In that document the home owners sought leave to be represented by Mrs Laurie Beales and it is that application which is to be determined by this decision. [3] Representation is dealt with in QCAT Act s 43. That section starts with the premise that parties will not be represented unless they come within specified exceptions, which are not applicable here, or, the interests of justice require a party be given leave to be represented. [4] Under s 43(3)(d) in deciding whether to give a party leave to be represented the tribunal may consider whether all the parties have agreed to the party being represented. [5] In its submission filed 26 February 2013 the park owner at paragraph 12 states: “To date, the Applicant has not been provided with any evidence that the Respondents cannot represent themselves.” However in its supplementary submission filed 5 March 2013 the park owner states at paragraph 22: “The Applicant concedes that the Respondents are elderly home owners. This is why the Applicant is not opposed to the Respondents being represented in this Application by someone other than Mrs Beales.” [6] I am satisfied that the parties have agreed to the home owners being represented, that that is a circumstance I may consider and I therefore give leave to the home owners to be represented in these proceedings. [7] However this is not the end of the matter. If Mrs Beales is to represent the home owners, because she is not an Australian legal practitioner or government legal officer, I must be satisfied she is an appropriate person to do so as required by s 43(4)(b). [8] In their application the home owners refer to Mrs Beales’ status as an owner in a residential resort, that she is familiar with the applicable legislation and that they are confident she can represent their best interests. [9] In her response filed 27 February Mrs Beales expresses her concern for the elderly respondents and gives more detail about her suitability. She states she has: a) spent more than 48 years in full time employment b) spent the last 20 years of that employment at the Australian Taxation Office dealing with complex legislation in positions dealing with sensitive -- 2 of 4 -- 3 and high level security material and has strong research and analytical skills c) become a home owner in a residential park and a member of the home owner representative organisations CAMRA and MHOA, which she works closely with and can rely on for support and d) been assisting home owners for some time and has a good knowledge of the MH(RP) Act. [10] Mrs Beales also addresses in some detail the allegations of the park owners, asserts she has conducted herself in a civil and professional manner at all times, refutes the relevance of her husband’s alleged behaviour and challenges much of the material of the park owners. She also challenges the authority of Mr Vlad Pullich to appear on behalf of the park owner and at paragraph 12 she states, “the Applicant has provided no evidence as to why he shouldn’t represent himself.” [11] The park owner, in its submissions and supplementary submissions: a) takes issues with the fact it did not receive an copy of the initial application b) relies on the comments1 of Ms Stilgoe, Acting Senior Member supporting its contention that representation is not necessary c) argues that Mrs Beale is not qualified to provide the home owners with legal advice and since she has no experience in an open hearing will not be able to assist the home owners in this regard d) accuses Mrs Beales of being a serial QCAT participant and anti- Applicant agitator e) expresses its concern that Mrs Beales will not respect the confidentiality of material given to her and that she will attempt to use the material to harm the park owner if given access to that material f) refers to attempts at intimidation by Mrs Beale’s husband and refers to Statutory declarations by witnesses to the motor vehicle incident which it has filed g) expresses its concern that Mrs Beales is a hostile person committed to souring relations, who is playing on the fears of senior citizens and in support for this alleges that home owners at 217 of 219 sites accepted the proposal and h) says Mrs Beales is a person the Applicant does not trust. [12] Having considered the arguments of both parties I am satisfied that Mrs Beales has the necessary skills and experience to represent the home owners before the tribunal. She has spent many years dealing with complex legislation at a senior level and is able to comprehend and explain to others the issues that may arise. She has the confidence to engage with tribunal processes and the fact she has not appeared at a hearing does not mean she is not capable of doing so. 1 Regal Waters Retirement Community Pty Ltd v Miller and Ors [2011] QCAT 479, para 6-8. -- 3 of 4 -- 4 [13] I am of the view the objections by the park owner to not receiving information about the representation application do not reflect on Mrs Beales competence or motives. That incident appears to have resulted from a mistaken belief, explained by Mrs Beales in her response, that the tribunal would send the documents to the park owner. [14] The arguments by the park owner based on the Regal Waters decision do not assist me. That decision turned on whether representation was necessary and as stated earlier in this matter it is agreed, and I accept, the home owners are entitled to representation. [15] However the arguments raised by the park owner, namely its relationship with Mrs Beales, the behaviour of her husband, other applications before the tribunal in which Mrs Beales is involved and whether Mrs Beales is able to represent the home owners on the merits of this application without being influenced by her past dealings with the park owner, do go to the question of whether Mrs Beales is an appropriate person to represent the home owners. [16] Further Mrs Beales’ repeated assertion that the Applicant should “represent himself” without acknowledging the park owner is a company and that the QCAT Rules provide for the appearance of a corporation by a person authorised to do, in this case its General Manager, suggests a lack of detachment which supports the park owners concerns. [17] The role of a representative is a difficult one. The representative must be objective and able to see the merit of arguments from both sides. The representative should be free of his or her own motives in seeking an outcome and focussed on the best interests of the home owners being represented. The representative must be able to engage in meaningful discussion and promote the possibility of settlement where it is appropriate to do so. If the representative makes a commitment to do something in the course of the proceedings the other side must have confidence the task will be completed. There needs to be a capacity to work with the opposing party to maximise the interests of both parties to the dispute. [18] I have not attempted to form a view about which version of event I prefer or tried to make finding of fact about the various allegations made. Having considered the material filed by both sides and the arguments raised, it is enough that I am satisfied on balance that notwithstanding the skills and experience demonstrated by Mrs Beales, the fraught relationship between the park owners and Mrs Beales demonstrated in the materials filed by both sides predicates against her capacity to represent the home owners. This relationship does not have the respect, trust and professional detachment necessary for the effective representation of these home owners whose only concern is the current application before the tribunal. [19] I have therefore decided Mrs Beales is not an appropriate person to represent the home owners in this application. -- 4 of 4 --