Boor v Queensland Building Services Authority [2010] QCAT 41

1 CITATION: Boor v Queensland Building Services Authority [2010] QCAT 41 PARTIES: Walter Ferdinand Boor v Queensland Building Services Authority APPLICATION NUMBER: QR080-09 MATTER TYPE: Occupational and regulation matters HEARING DATE: 9.2.2010 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 9.2.2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent’s application for legal representation is refused. 2. Leave is granted to the Respondent to appear through a legal practitioner employed by the respondent. CATCHWORDS: Legal Representation; section 43 Queensland Civil and Administrative Tribunal Act; Part 7 of the Queensland Civil and Administrative Rules and whether leave be granted to the respondent to appear through a legal practitioner; legal representation and appearance through a legal practitioner discussed. APPEARANCES and REPRESENTATION (if any): Decision on the papers. -- 1 of 6 -- 2 REASONS FOR DECISION 1. The Building Services Authority (“the Authority”) applies for leave to be legally represented by external lawyers in this proceeding. The application is made pursuant to section 43 of the Queensland Civil and Administrative Act (“Act”). 2. The substantive application is a review of the Authority’s decision not to categorise Mr Boor as a “permitted individual” for the purposes of section 56AD of the Queensland Building Services Authority Act 1991 (“the BSA Act”). The ground for refusal is that Mr Boor has failed to satisfy the Authority that he had taken “all reasonable steps to avoid the coming into existence of the circumstances that resulted in the happening of the relevant event1”. 3. Mr Boor opposes the application for legal representation. He chooses to be self represented at the hearing. 4. Both parties have filed written submissions and have agreed that the application should be decided on the papers. Brief Factual Background. 5. Mr Boor is a carpenter by trade and has held a builder’s licence for the past 10 years and a contractor’s licence for the past 30 years. 6. In partnership with his wife he conducted a building business under the name of WF & SG Boor. 7. As a consequence of financial difficulties, he entered into bankruptcy on 14 January 2009 on the advice of his accountant. 8. Briefly, the financial difficulties included major cost overruns on a large renovation project at Valley Drive, Doonan; refinancing costs associated with high interest rates; forced sale of their residence at a reduced price because of the consequences of the downturn in the global economy and the effect of the global economy on his building business. 9. By reason of his bankruptcy, Mr Boor became an “excluded individual” pursuant to section 56AC of the BSA Act for a period of 5 years. As an excluded individual the Authority cannot grant to him a licence to work in his trade or business2 unless he is categorised as a permitted individual. 10. Mr Boor has already filed submissions in the substantive application which provide an explanation of the events leading to his bankruptcy, but whether 1 Section 56AD(8) of the QBSA Act 2 Section 56AE -- 2 of 6 -- 3 that is sufficient to satisfy the requirements of section 56AD(8) can only be determined at the hearing. 11. It can be readily ascertained that the application is of some importance to Mr Boor, but despite this he is content to conduct the hearing himself although he has had assistance from solicitors in the past. Statutory Provisions and the Rules. 12. The starting point for an application for legal representation is s. 43 of the Act which provides, inter alia, that the “main purpose of this section is that parties represent themselves unless the interests of justice require otherwise”. 13. The subsection (3) provides: 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: 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. 14. The Authority is a State agency. There is no clear guidance in the Act as to why this is a consideration, however it’s insertion may have resulted of concerns that have been raised in the past about the Authority having made a decision, then has to represent itself in support of that decision. There is a concern that the line between it being seen as a model litigant, and also actively supporting it’s own decisions, may become blurred. 15. The Authority relies on such cases as Brown & Brophy v Queensland Building Services Authority & Anor3 and Drew v Queensland Building Services Authority4 which were decided under the provisions of the former Commercial and Consumer Tribunal Act, to support this position. In Brophy, Member Lohricsh said: “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 of the circumstances. The Authority’s obligation in this regard remains the same whether or not such information/evidence is favourable or unfavourable to a 3 3 (2005) CCT Q200-04 as well as 170 Coastal Constructions Pty Ltd v Queensland Building Services Authority (2008) QCCTB 111 4 (2008) QCCTB 199 -- 3 of 6 -- 4 determination as to whether the Authority’s decision should be confirmed. 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 Authority’s “in-house” lawyers should bring to the matter is clearly desirable and would be of considerable assistance to the Tribunal” 16. This is not an application where leave is sought for an “in-house” legal officer to appear for the Authority. If it was then Rule 53 5 would be applicable. It is worth noting here, that representation under section 43 seems to be quite distinct from obtaining leave to appear under Rule 53. 17. Rule 53 is contained in Part 7 of the Rules which contain “provisions about parties to a proceeding.” Division 1 of Part 7 is entitled: “Appearance by party that is not an individual or by a group of applicants” 18. Rule 52 is quite specific in distinguishing between representation and appearance. It provides: (1) This division provides for – a) how a party that is not an individual may appear in a proceeding; and b) how a group of applicants may appear in a proceeding. (2) This division does not provide for how a party may be represented in a proceeding 19. Rules 53 permit appearances of employees, officers or members who are authorised by a State agency to do so. Similar authorisation is given to Corporations in Rule 54. However, if appearance is to be by a legal officer within those organisations, then leave of the Tribunal must be sought. 20. It follows, in my view, that an application under Part 7 Division 1 is not an application for representation. I raise this because as an alternative to the application now under consideration, leave can be given to a legal officer within the Authority to appear on behalf of the Authority if the application for legal representation is refused. In other words an in-house lawyer. 5 Queensland Civil and Administrative Tribunal Rules -- 4 of 6 -- 5 The Submissions 21. The Authority’s usual submission in support of external legal representation can be summarised as follows: • Assistance would be provided to the Tribunal; • Production of evidence that is clear and concise even if it is contrary to the interests of the Authority; • Provide assistance in a procedural sense; • Present the issues in a legal framework having regard to the legislation relevant to excluded individuals; • Ensure the proceeding is conducted speedily and efficiently; • Provide objective and dispassionate representation; 22. It is also submitted that it is not practical that the Authority be represented by the decision maker. One can of course, see the good sense in this submission however, the Authority is staffed by a number of legal officers who could ensure that this did not occur. 23. These submissions are always relevant but largely depend on the particular circumstances of the case. 24. The Authority’s submission, here, does not address the complexity of the issues referred to in section 43(3)(b) and, in addition, the application is opposed. 25. The application of section 56AD(8) does have its difficulties but it very much depends on the factual circumstances giving rise to the applicant becoming an excluded individual. Furthermore the onus is on the applicant to satisfy the Tribunal that the steps taken, if any, were reasonable in the circumstances of the particular case. The test is an objective one.6 26. Mr Boor, in his letter 7 to the Tribunal objecting to the application states: “I feel there would be a significant imbalance between myself and the QBSA if they were to be allowed Legal Representation…… The matter to be heard is not of a complex legal matter, only to decide whether I took all reasonable steps to avoid the relevant event. Therefore Legal Representation on behalf of the QBSA would complicate the hearing.” 27. The Objects of the Act, as contained in section 3 and the Tribunals functions as set out in section 4, are to ensure that matters are dealt with fairly, economically, informally and quickly to ensure that costs are minimised. Clearly there are cases which involve complexities justifying the need for legal representation, however this is not one of those cases. The basic facts are set out in the submissions already filed by the applicant and although 6 Delonga v QBSA (2004) QCCTB 26 7 Letter to Commercial and Consumer Tribunal 25 November 2009 -- 5 of 6 -- 6 these facts will be tested by the Authority, it does not seem to me that it will not be at a disadvantage if it is restricted to using one of it’s own legal officers. 28. Importantly, the Authority’s legal officers are familiar with the statutory regime in which the Authority operates not only the Queensland Building Services Authority Act, but also associated legislation. This knowledge is of great assistance to the Tribunal when determining, not only applications for review of it’s decisions, but also in contractual disputes between home owner and licensees. This also then results in the efficient conduct of hearings in which the Authority is involved. They are also experienced in conducting hearings in the Tribunal. Conclusion 29. For the reasons stated, I have come to the conclusion that the application for legal representation will be refused. However, it is appropriate that the Authority, be given leave pursuant to Rule 53 for it to appear through one of it’s own legal practitioners. -- 6 of 6 --