Burnett v Nogoa River Flood Plain Board & Ensham Resources P/L [2010] QCAT 50

CITATION: Burnett v Nogoa River Flood Plain Board & Ensham Resources P/L [2010] QCAT 50 PARTIES: Nigel BURNETT v NOGOA RIVER FLOOD PLAIN BOARD And ENSHAM RESOURCES PTY LTD (ACN 011 048 678) APPLICATION NUMBER: GAR016-10 MATTER TYPE: General Administrative Review matters HEARING DATE: 15 February 2010 HEARD AT: Brisbane DECISION OF: Ms S Booth Senior Member DELIVERED ON: 15 February 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for representation dismissed CATCHWORDS : Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 APPEARANCES and REPRESENTATION: The hearing took place on the papers in the absence of parties. -- 1 of 5 -- ` 2 REASONS FOR DECISION HISTORY OF THE APPLICATION 1. This is an application for leave to be legally represented by Ensham Resources Pty Ltd (Ensham). 2. Mr Nigel Burnett seeks a review of the decision of the Nogoa River Floor Plan Board, Central Highland Regional Council (the Nogoa Board). The Nogoa Board made a decision to issue a permit to Ensham to extend and upgrade levees, subject to certain conditions. 3. A joint application has been made by Ensham for legal representation in this matter and a similar matter of Juris Act Pty Ltd v Nogoa River Flood Plain Board and Ensham Resources Pty Ltd. ISSUES AND THE LEGISLATION 4. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Appeal Tribunal under the Local Government Act 1993 on the commencement of the Queensland Civil and Administrative Tribunal Act 2009 (the Act). 5. Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals replaced by the 2009 Act but not heard by the replaced Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal. According to section 271 of the Act, the Tribunal must deal with the matter the subject of the pending proceeding under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act. 6. The enabling Act in this case, the Local Government Act 1993 does not contain provisions for a party to be represented in Tribunal proceedings. The Queensland Civil and Administrative Tribunal Act 2009 contains provisions for a party in the proceeding to be represented only with the leave of the Tribunal. 7. Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides 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. -- 2 of 5 -- ` 3 (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— (c) the party is a State agency; (d) the proceeding is likely to involve complex questions of fact or law; (e) another party to the proceeding is represented in the proceeding; (f) 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— (a) who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or (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. (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— Australian legal practitioner see the Legal Profession Act 2007. government legal officer see the Legal Profession Act 2007. 8. It can be seen from the Act that parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right. 9. In cases where a party seeks leave to be represented, the Tribunal must be satisfied that the interests of justice require the party to be represented. In addition, if a corporation seeks to be represented by a person who is not an Australian legal practitioner, the person must provide the Tribunal with a certificate of authority from the corporation and the Tribunal must be satisfied that the person is an appropriate person to represent the party. 10. Rule 54(1) of the Queensland Civil and Administrative Tribunal Rules 2009 (the Rules) provides that a corporation may appear in a proceeding through an officer of the corporation who is authorised to act for it in the -- 3 of 5 -- ` 4 proceeding. Where a corporation seeks appear through an Australian legal practitioner, the Tribunal’s leave must be obtained. SUBMISSIONS 11. Ensham made submissions in support of the application for leave to be represented under section 43 of the Act. It was submitted that the matter is likely to involve complex questions of fact and law and that it is in the interests of justice that the Tribunal exercise the discretion under section 43(2)(b)(iv) of the Act and grant leave to be legally represented. Further, Ensham asserts that it is the proper contradictor and that legal representation will ensure that legal arguments and evidence will be appropriately put before the tribunal. 12. Mr Burnett objects to Ensham’s application for legal representation but not to Ensham’s attendance. He submits that his dispute is with Nogoa Board’s decision to approve Ensham’s application to raise their levee banks. Further Mr Burnett submits that the facts seem quite simple and something that can be determined by parties representing themselves. CONCLUSION 13. As to the factors in section 43(3) of the Act, that is whether the proceeding involves complex questions of fact or law Mr Burnett and Ensham do not agree. Mr Burnett submits that the simplicity of issues and the QCAT processes negate the need for legal representation. Ensham asserts complex factual and technical issues under section 12(5) of the Local Law. While Ensham asserts it is the proper contradictor, Mr Burnett states that his dispute is primarily against the Nagoa Board but that Ensham should have some involvement in the compulsory conference. The extent and nature of issues of the application are in dispute. 14. One of the main purposes of the compulsory conference under s69 (a)-(c) of the QCAT Act is to identify and clarify issues in dispute. Section 69 provides: S69 Purposes The purposes of a compulsory conference for a proceeding are as follows- (a) to identify and clarify the issues in dispute in the proceeding; (b) to promote a settlement of the dispute the subject of the proceeding; (c) to identify the questions of fact and law to be decided by the tribunal; 15. The fact that issues are in dispute and the roles of parties unclear, does not necessarily mean that there are complex issues of fact and law. All parties can assist with identifying and clarifying issues. This approach is consistent with the purpose of section 69. 16. There is nothing in the application or in the submissions made by the Ensham to overturn the main purpose of section 43 that the parties represent themselves unless the interests of justice require otherwise. -- 4 of 5 -- ` 5 Ensham has not established to the satisfaction of the Tribunal that the compulsory conference will raise complex questions of fact and law such that legal practitioner would be an appropriate person in terms of section 43(4)(b) of the Act to represent Ensham 17. Ensham can choose to obtain legal advice as part of its preparation for the compulsory conference as part of the formulation of points for discussion at the Conference without requiring leave under section 43 of the Act. However, the Act does not permit Ensham to be represented at the conference by a legal practitioner unless the interests of justice require otherwise. 18. The application for leave to be represented is dismissed. 19. Should the matter not be resolved at the compulsory conference, the Tribunal may be prepared to revisit an application for leave to appear at the hearing under section 54 of the QCAT rules. -- 5 of 5 --