Additions Building Company Pty Ltd v Keefe [2010] QCAT 354

CITATION: Additions Building Company Pty Ltd v Keefe [2010] QCAT 354 PARTIES: Additions Building Company Pty Ltd v Ms Sue Keefe APPLICATION NUMBER: BD471-09 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr Bridget Cullen Mandikos DELIVERED ON: 26 th March 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent’s application seeking leave to be represented is denied, and the parties are ordered to be self represented in these proceedings. CATCHWORDS : Leave to be represented by agent; Sections 29 and 43 Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- BD471-09 / Page 2 of 4 REASONS FOR DECISION Background 1. On 5 November 2009, the applicant, Additions Building Company Pty Ltd (“Additions Building”), filed an “application – domestic building dispute” with the then Commercial and Consumer Tribunal (“CCT”), seeking payment for building work performed at the residence of the respondent, Ms Sue Keefe (“Ms Keefe”). Additions Building’s affidavit of service was filed with the CCT on 16 November 2009. 2. On 27 November 2009, Ms Keefe filed her defence in the CCT, arguing (amongst other matters) that Additions Building was not entitled to terminate the contract. Ms Keefe argues that she was not in breach at the time of Additions Building’s purported termination, and further that Additions Building is not entitled to the progress payment that it has claimed. 3. The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT: Section 256 Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). Application to be represented by agent 4. Ms Keefe has appointed an agent, who is not an Australian legal practitioner, to appear on her behalf - Ms Wendy Moulton of Building Matters Queensland. Following a call over at QCAT on 27 January 2010, where Ms Moulton appeared on Ms Keefe’s behalf, the Tribunal ordered that Ms Keefe apply for leave to be represented in the proceedings by Ms Moulton on or before 22 February 2010. Provision was made by the Tribunal for both parties to make written submissions with regard to the application for representation, and it was ordered that the application would be decided on the papers. 5. Ms Keefe’s application was received by the Tribunal on 10 February 2010, together with written submissions, a copy of Ms Moulton’s curriculum vitae, and some building inspection reports. Additions Building filed its submissions on 10 February 2010, objecting to Ms Keefe’s application seeking leave to be represented by Ms Moulton. Ms Moulton, on behalf of Ms Keefe, responded to Additions Building’s 10 February 2010 submission by way of further submission on 26 February 2010. 6. This is not a dispute that attracts the automatic entitlement to obtain representation. Section 43 of the QCAT Act provides that the parties are to “represent themselves unless the interests of justice otherwise require.” In determining whether to give Ms Keefe leave to be represented, the Tribunal may consider the following as circumstances supporting the giving of any leave: -- 2 of 4 -- BD471-09 / Page 3 of 4 (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. (s43 (3) QCAT Act). 7. Of additional relevance here is s43 (4)(b) of the QCAT Act, which provides as follows: A party can not be represented in a proceeding by a person – (b) who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party. Ms Keefe’s proposed representative, Ms Moulton, is not an Australian legal practitioner, and therefore if the Tribunal were to grant Ms Keefe leave to be represented, it would have to be satisfied that Ms Moulton was an “appropriate person” to represent Ms Keefe. 8. In her submissions, Ms Keefe places some focus on the alleged behaviour of the Additions Building’s representative. Ms Keefe alleges that the representative has been “loud and abusive”, has called her and her husband “monkeys”, and has obfuscated the building inspection process. Essentially, Ms Keefe’s submissions are focused upon her preference to continue to be represented by Ms Moulton. Ms Keefe’s submissions do not address the factors contained in s43 of the QCAT Act. 9. There is no provision within s43 of the QCAT Act entitling a party to be represented on the basis of the party’s feeling intimidated, or having a preference to remain represented. Tribunal obligation to ensure party understands proceedings 10. There is nothing in the material before me that suggests that Ms Keefe is not capable of understanding the proceedings in this matter. That said, s 29 of the QCAT Act requires the Tribunal to take all reasonable steps to ensure that each party to a proceeding understands: (i) the practices and procedures of the tribunal; and (ii) the nature of assertions made in the proceeding and the legal implications of the assertions; and (iii) any decision of the Tribunal relating to the proceeding. -- 3 of 4 -- BD471-09 / Page 4 of 4 11. Further, s29(1)(b) of the QCAT Act requires that the Tribunal take all reasonable steps to ensure that parties: understand the actions, expressed views and assertions of a party to or witness in the proceeding, having regard to the party’s or witness’s age, any disability, and cultural, religious and socioeconomic background. 11. Thus, if it becomes apparent to the Tribunal during the hearing process that Ms Keefe’s apprehension about self-representation is attributable to any of the above mentioned factors, the Tribunal will take all reasonable steps to address the issues. 12. This is not a legally complex case. The matters raised in both the application and defence are of a variety that come before the Tribunal on a daily basis, and therefore, none of the factors mentioned in section 43 (3) as supporting the giving of leave, are satisfied here. Further in this regard, Additions Building has indicated that it does not intend to be represented in this proceeding. 13. I don’t think it necessary for me to address Ms Moulton’s qualifications as an “appropriate person” to represent Ms Keefe in this matter. I say this on the basis that my decision to refuse leave to be represented is made, in large part, on the basis that the matter is not legally complex and Additions Building has objected. It may be that in a more complex proceeding, with consent, or where another party is represented, that the Tribunal may determine that Ms Moulton is a “appropriate person”, but this is a matter to be determined at another juncture. General principle in relation to legal costs 14. As the issue of legal costs has been raised in both parties’ submissions, I think that the matter deserves some attention. Firstly, I draw the parties’ attention to section 100 of the QCAT Act, which indicates that each party usually bears their own costs. A similar provision applied in the CCT, contained in section 70 of the Commercial and Consumer Tribunal Act 2003, which indicated that parties were to bear their own costs “unless the interests of justice requires otherwise”. I think it important that both parties understand the general position vis-a-vis legal costs at an early stage in the proceedings. Orders The parties are to be self-represented in these proceedings. -- 4 of 4 --