Bourne v Queensland Building Services Authority [2010] QCAT 162

1 CITATION: Bourne v Queensland Building Services Authority [2010] QCAT 162 PARTIES: Elizabeth Anne Bourne v Queensland Building Services Authority APPLICATION NUMBER: QR114-09 MATTER TYPE: Building matters HEARING DATE: 15 February 2010 HEARD AT: Brisbane DECISION OF: Mr J Allen DELIVERED ON: 15 February 2010 DELIVERED AT: Brisbane ORDERS MADE: Leave for legal representation granted CATCHWORDS: Application for leave to be represented – Section 43 of Queensland Civil and Administrative Tribunal Act 2009 and Rule 53 of Queensland Civil and Administrative Tribunal Rules 2009 APPEARANCES and REPRESENTATION (if any): This matter was determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 7 -- 2 REASONS FOR DECISION HISTORY OF THE APPLICATION 1. Applications were made to the Commercial and Consumer Tribunal by Mrs Elizabeth Bourne on 12 May 2009 for the review of decisions made by the Queensland Building Services Authority (QBSA) on 5 December 2008 and 17 April 2009 to close their file in relation to complaints made by Mrs Bourne in respect of building work by Weirkids Pty Ltd at her home. 2. An application has been made to the Tribunal by the QBSA seeking leave to be represented in the proceedings. ISSUES AND THE LEGISLATION 3. The jurisdiction to review decisions of the QBSA is now vested in the Tribunal in accordance with section 86 of the Queensland Building Services Authority Act 1991. This matter was before the Commercial and Commercial Tribunal at the time of the change in jurisdiction it is taken to be a proceeding before the Tribunal in accordance with section 256 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act). By section 271 of the Act the Tribunal must deal with the matter under the Act or an enabling Act. 4. The Queensland Building Services Authority Act 1991 in section 93A provides that a party may be represented by a lawyer in certain circumstances not applicable here. The explanatory memorandum to the amending legislation which inserted section 93A makes it clear that this provision is in addition to the provisions in regard to representation under the Act. 5. The provision in regard to legal representation are set out in section 43 of the Act are 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; (ii) the proceeding relates to taking disciplinary action or reviewing a decision about taking disciplinary action against a person; (iii) an enabling Act that is an Act or the rules state the person may be represented; or (iv) the party has been given leave by the tribunal to 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 the leave: -- 2 of 7 -- 3 (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; or (d) all of the parties have agreed to the party being represented in the proceeding. (4) A party can not be represented in a proceeding by a person who : (a) under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or (b) is not an Australian legal practitioner or government legal officer unless the tribunal is satisfied (5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if – (a) the party is a corporation; or (b) the tribunal has asked for the certificate. (6) The tribunal may appoint a person to represent an unrepresented party. (7) In this section - o Australian legal practitioner see the Legal Profession Act 2007. o Government legal officer see the Legal Profession Act 2007. 6. Rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009 deals with who can appear in a proceeding for a State agency. An employee, officer or member of the State agency authorised by the Agency to act for it may appear. The Tribunals leave is required in accordance with section 53(2) for an Australian legal practitioner or government legal officer to appear fro the State agency. SUBMISSIONS 7. The QBSA in its written submissions in support of its application stated that it should be granted leave to be legally represented because: a. The Authority being a state agency; b. The complexity of the legal and factual issues involved; c. The ability of legal representation to assist the Queensland Civil and Administrative Tribunal in processing the hearing efficiently and quickly; -- 3 of 7 -- 4 d. The ability of legal representation to help the authority as it is neither practical nor desirable for the decision maker to attend as both witness and to conduct the hearing on behalf of the authority; and e. Allegations made by the Applicant in these proceedings in relation to various officers of the Authority, including relevant decision makers. 8. The QBSA submitted that the proceeding is quite complex and outlined the history of the applicants dealings with the QBSA in regard to the building work carried by Weirkids Pty Ltd. That there had been two decisions not to issue notices to rectify which are subject to this review application. There was a further decision to issue a notice to rectify in regard to the same work; a decision to issue a notice of failure to rectify and two decisions in regards in regard to scope of works under the QBSA insurance scheme. There are currently applications in regard to all of these decisions. 9. The QBSA has made an application to substitute the review of the two decisions not to issue a direction to rectify with the authority’s decision to issue a direction to rectify. 10. The QBSA has noted that there is a further application from the applicant which requires clarification. 11. According to the QBSA there are complexity both of fact and law as a result of the history of this application. That is the matter will involve a consideration by the Tribunal of various decisions and matters, such as whether the Authority’s decisions to not issue a direction should be substituted with the Authority’s decision to issue a direction to rectify, whether the contents of the Authority’s decision to issue a scope of work are reasonable and necessary. That this will involve an analysis of the history and circumstance of the matter and analysis of technical aspects of building and construction. By virtue of the review and consolidation of various decisions of the Authority, this matter will involve technical aspects of building and construction. Consequently there is also complexity in respect of questions of law. 12. The QBSA noted that the decision maker in this case is not legally qualified to represent the Authority in this proceeding and that as the Authority is a State Agency bound by the model litigant principles that the tribunal would benefit from the presence of a legal representative in this proceeding who is: a. Familiar with the statutory framework surrounding the Authority and the Tribunal; b. Able to present the issues in a legal framework and in accordance with the relevant legislation; c. Able to best ensure the proceedings are conducted as expeditiously and efficiently as possible and can best assist the Tribunal in resolving the proceedings; and -- 4 of 7 -- 5 d. Able to provide objective and dispassionate representation of the issues in contention. 13. The QBSA submitted that the Tribunal may suffer if the Authority is not legally represented. Firstly, because of the difficulty in addressing the complex factual and legal issues that arise from the circumstances of this matter. Secondly, the decision maker is not versed in any legal training and therefore, is not able to fulfil the Authority’s obligation to act as a model litigant. That any failure by the Tribunal to apply correctly the law in making its decision, will oblige the Authority to appeal. As the authority is a model litigant, it is not able to allow case precedent to stand in circumstances where it considers such decision was wrongly decided in law. Thirdly, the proceedings involve some issues of law for the authority. Legal representation on behalf of the Authority will assist to ensure consistency between submissions to the Tribunal and of the attitude of the authority to points. Therefore as a matter of policy, the interests of justice favour legal representation on behalf of the Authority. 14. The QBSA made submissions in regard to the applicants conduct of the proceedings as follows: a. The applicant to the Authority’s knowledge, has not sought legal advice and has indicated her intention not to do so; b. The applicant has filed voluminous and unclear materials, and in part, sought outcomes either already proposed by the Authority during settlement negotiations that took place earlier in the Tribunal’s review and the Authorities internal processes, or are not relevant to the matters to be considered by the Tribunal in these proceedings; c. It is submitted that the complexity of this matter has arisen somewhat unnecessarily as a result if the applicants conduct. Therefore the interests of justice favour legal representation on behalf of the Authority as that legal representative would be able to assist in ensuring the matter is dealt with in a fair, just and economical way; and d. The applicant has also made various allegations, including misconduct and corruption, in relation to the conduct of the authority and various officers of the Authority, including relevant decision makers. It is therefore submitted that it is not appropriate for the Authority be represented by the decision maker and the interests of justice favour legal representation on behalf of the Authority. 15. The QBSA submitted that legal representation will in no way cause injustice to the applicant, as it will not result in any factor negative to her interests. The Authority will not have any special advantage by being represented by a legal officer as by the end of the material filing process in these proceedings, the Authority’s evidence will be known to the Applicant. -- 5 of 7 -- 6 16. It was further submitted the Authority being legally represented will assist the Tribunal in narrowing the relevant legal and factual issues to be determined, in order to ensure the proceedings are determined efficiently. 17. The QBSA also placed reliance on several decisions of the former Commercial and Consumer Tribunal, Brown and Brophy v Quensland Building Services Authority, Drew v Queensland Building Services Authority and Bruner v Queensland Building Services Authority. Those decisions favoured the granting of leave for in house legal representation to the Authority in cases where there were complex legal and factual issues and in one case where a certain amount of hostility existed in the applicants view of the Authority’s decision maker. In Bruner v Queensland Building Services Authority, Member Lohrisch described in discussing the Authority’s in-house legal team stated “relevant to note that the Authority employs lawyers who deal with matters such as this on a day to day basis. Such lawyers are well versed in their obligations to the Tribunal and unrepresented parties, such that the tribunal has all matters of fact and law placed before it and the unrepresented party is dealt with fairly and is not disadvantaged, beyond, of course, the merits of the respective cases of the parties. In Brown and Brophy v Queensland Building Services Authority, Member Lohrisch in discussing the model litigant role of the Authority stated the Authority is placed not only in a position of “defending” a decision made by it, but moreover, is under a parallel obligation to the Tribunal towards ensuring that the tribunal has all necessary information and evidence before it to “stand in the shoes’ of the Authority, as the Tribunal is required to do , in not only reviewing the Authority’s decision, but also making the appropriate decision in all the circumstances. In this context it seems to me that the Authority’s submission that it is not desirable that the actual decision maker represent the Authority is correct, and that the more objective and dispassionate representation that the “in-house” lawyers should bring to the matter is clearly desirable and would be of considerable assistance to the tribunal. 18. In regard to the question of whether legal representation for the Authority would result in an imbalance between the applicant and the Authority, Member Lohrisch stated in Drew v Queensland Building Services Authority that a legal officer would not create , in my view, any imbalance between the applicant and the Authority, firstly, because of the involvement of a member of this tribunal who would no doubt correct any such imbalance, and secondly because the Authority’s legal officer, as an officer of a statutory entity and a legal advocate, has obligations and an overriding duty to the tribunal towards ensuring fairness, particularly in circumstances where the opposite party is not legally represented. 19. Mrs Bourne has not provided submissions in regard to the granting of legal representation to the QBSA. -- 6 of 7 -- 7 CONCLUSION 20. Section 43 of the Act makes it clear that parties are to represent themselves unless the interests of justice require otherwise and sets out a set of criteria to which consideration may be given for the granting of leave to be legally represented. Having regard to those criteria the respondent is a State agency and as such in an application for review of a decision is required by section 21 of the Act to use their best endeavours to help the tribunal so that it can make its decision on the review. This has been described as the respondent taking the role of a model litigant. This is relevant where as in here a request has been made by one party to be legally represented and not the other. The fact that the QBSA is a model litigant supports their submissions that they will be better able to assist the Tribunal in particular where there are complicated questions of fact or law. The Tribunal accepts that having regard to the history of decision making the subject of the applications here and the various sections of the Queensland Building Services Act 1991 under consideration that these proceedings involve complex questions of fact and law. 21. The Tribunal notes that the relationship between the applicant and the QBSA decision maker is subject to accusation of misconduct and corruption. The Tribunal is satisfied that representation by an “in-house” lawyer would assist in ensuring that the conduct the QBSA’s case in an objective and dispassionate way. This would be to the advantage of the applicant as the QBSA is required to act as a model litigant. 22. The Tribunal notes that this is an application for legal representation by the QBSA under section 43 of the Act and not for leave for an “in-house” lawyer to appear for the QBSA under Rule 53 so the decision maker will be available as they will be the ones appearing for the QBSA. This will give the applicant a proper opportunity to question the QBSA decision maker and ensure that she is afforded natural justice. 23. The Tribunal grants leave an Australian legal practitioner/government legal officer employed by the Respondent to represent the QBSA in these proceedings. -- 7 of 7 --