Acanthus Investments Pty Ltd v Queensland Building Services Authority [2010] QCAT 163

1 CITATION: Acanthus Investments Pty Ltd v Queensland Building Services Authority [2010] QCAT 163 PARTIES: Acanthus Investments Pty ltd v Queensland Building Services Authority APPLICATION NUMBER: QR151-09 MATTER TYPE: Occupational regulation matters HEARING DATE: 12 March 2010 HEARD AT: Brisbane DECISION OF: Mr J Allen DELIVERED ON: 12 March 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for leave for representation refused Leave is granted to the respondent to appear through an Australian legal practitioner or a government legal officer CATCHWORDS: Section 43 of the Queensland Civil and administrative tribunal act – leave for representation; section 21 – decision- maker must help tribunal; rule 53- state agency APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 -- 1 of 5 -- 2 REASONS FOR DECISION HISTORY OF THE APPLCIATION 1. An application was made to the former Commercial and Consumer Tribunal by the applicant on 6 July 2009 in respect of a decision by the respondent to issue a notice to rectify to the applicant on 12 June 2009. 2. The respondent has now made application dated 22 January 2010 for legal representation in respect of the proceedings. 3. The applicant has indicated through its director to the Tribunal that it opposes the application for legal representation stating that it did not think there was any need for the parties to have representation. THE LEGISLATION AND RULES 4. The provisions in regard to legal representation for matter in the tribunal are set out in se4ction 43 of the Queensland Civil and administrative Tribunal act 2009 (the Act) as follows: (1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. (2) In a proceeding a party- a. May appear without representation; or b. May be represented by someone else if- i. The party is a child or a person with impaired capacity; or ii. The proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person ; or iii. An enabling act that is an act , or the rules, states the person may be represented; or iv. The party has been given leave by the tribunal to be represented. (3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of leave- 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. 5. The special role of a decision maker in a review application such as this is set out in section 21(1) of the Act as follows: In a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review. -- 2 of 5 -- 3 6. Rule 53 of the Queensland Civil and Administrative tribunal Rules 2009 provides that: (1) a state agency may appear in a proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceeding. (2) However the State agency may appear through an Australian legal practitioner or a government legal officer only with the tribunals leave. SUBMISSIONS 7. The respondents written submissions in support of the application for legal representation raised the following grounds: (1) that the authority was a state agency (2) the nature of the application involves an analysis of the technical issues with respect to defective work; (3) the ability of legal representation to assist the tribunal in conducting the hearing efficiently and expeditiously (4) the ability of legal representation to assist the Authority, as it is neither practical nor desirable for the decision maker to attend as both a witness and to conduct the hearing on behalf of the authority. 8. The respondent cited a decision of the former Commercial and Consumer Tribunal Brown & Brophy v Queensland Building Services Authority & Anor [2005] CCT Q200-04 relevantly as follows: The authority stands in the shoes of a model litigant, which involves two considerations: (i) the authority is placed not only in a position in defending its decision but ensuring that the tribunal has all necessary information and evidence for the tribunal to stand in the shoes of the authority. In that regard the authority’s submission that it was not desirable for the decision maker to represent the authority was correct and that the more dispassionate and objective representation of the in-house lawyers would be of considerable assistance to the Tribunal; (ii) the authority has a duty not to advantage of the self- represented party. This includes conduct which would serve to reduce the knowledge gap between the parties. 9. The respondent further relied on the decision in Drew v Queensland Building Services Authority where it was decided that since the authority’s investigator was the main point of evidence for the authority, and was therefore a necessary witness, this fact may (sic) the investigators attendance as both a witness and to conduct the hearing, less than desirable. -- 3 of 5 -- 4 10. The respondent further submitted that the tribunal would benefit from the presence of a legal representative in these proceedings who is: (1) Familiar with the statutory framework surrounding the authority and the tribunal; (2) Able to present the issues in a legal framework and in accordance with the relevant legislation; (3) Able to ensure the proceedings are conducted as expeditiously and efficiently as possible and can best assist the tribunal in resolving the proceedings; and (4) Able to provide objective and dispassionate representations of the issues in question. 11. The respondent made further submissions that the tribunal may suffer if the respondent is not legally represented as the decision maker is not versed in legal training and will not be able to fulfil the respondent’s roles as model litigant. It was also submitted that the proceedings involve some issues of law for the authority and legal representation would ensure consistency between submissions to the tribunal and the attitude of the respondent to the point. 12. It was further submitted that there would be no injustice to the applicant, as it will not result in any factor negative to its interests in that evidence is known to the applicant and that the respondent would not have any special advantage by being represented by a legal officer. CONCLUSION 13. The tribunal accepts that as result of the respondent being a state agency and the special nature of its role in a review application that it is appropriate that the person who appears before the tribunal for the respondent be able to appropriately undertake the role of model litigant in assisting the tribunal to make its decision and that having the decision maker in that role is not ideal. 14. Having regard to the particular issues in this application there does not appear on their face to be any complicated issues of fact or law as contemplated by section 43 of the Act as being a ground for granting leave to be represented nor is the applicant represented or does it agree to the respondent being represented. 15. While the fact that the respondent is a state agency is considered to be a ground in itself in accordance with section 43 of the Act for the granting of representation regard must be had to the requirement in section 43(1) that parties represent themselves unless the interests of justice require otherwise. The tribunal accepts the submission of the respondent that in this case the presence of a legally qualified person will assist the tribunal to make its decision by that person being dispassionate, that is not being the decision maker, and knowing the legislative framework within which the decision is made. -- 4 of 5 -- 5 16. The tribunal notes that it is the role of the tribunal in accordance with section 29 of the Act to ensure that the parties understands the practices and procedures of the tribunal and the nature of the assertions made in the proceedings and the legal implications of the assertions. Therefore the respondent will not be advantaged over the applicant in respect of the proceedings if the respondent appears by a legally qualified person. 17. As this matter does not on its face involve complex facts or legal issues the tribunal is not satisfied that it is necessary that the respondent be granted leave to be legally represented. To ensure though that the respondent is able to undertake its role as model litigant the tribunal grants leave under rule 53 for the respondent to appear through an Australian legal practitioner or a government legal officer employed by the respondent. -- 5 of 5 --