Delamac Pty Ltd v Perpetual Limited [2012] QCAT 518

CITATION: Delamac Pty Ltd v Perpetual Limited [2012] QCAT 518 PARTIES: Delamac Pty Ltd (Applicant) v Perpetual Limited (Respondent) APPLICATION NUMBER: RSL100-11 MATTER TYPE: Retail shop leases matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Michelle Howard, Acting Senior Member DELIVERED ON: 13 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Perpetual Limited’s application for legal representation is refused up to and including the compulsory conference. 2. Unless the parties reach agreement at the compulsory conference, the application for legal representation will be further considered following the compulsory conference. CATCHWORDS: LEAVE FOR LEGAL REPRESENTATION APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] There are proceedings before the Tribunal in a retail tenancy dispute between Delamac Pty Ltd and Perpetual Limited. [2] Perpetual seeks leave for legal representation in the proceedings. Delamac opposes the application for leave. -- 1 of 3 -- 2 [3] Under the QCAT Act, parties appearing before the Tribunal are generally, with specified exceptions, to represent themselves unless leave is granted for legal representation if the interests of justice require otherwise.1 In deciding whether to grant leave, the Tribunal may consider factors supporting the giving of leave which include the proceeding involving complex questions of fact or law and whether another party in the proceeding is represented. [4] Perpetual submits that the proceeding does involve complex issues. In particular, it refers to consideration of the Delamac’s claims regarding false and misleading conduct; unconscionable conduct; undue tactics; validity of guarantee and indemnity and interpretation of lease provisions. It argues these embody factual and legal complexities. It further says that if leave is granted it will assist the Tribunal and will not take technical points against Delamac, which is represented by its director who is not a lawyer. Reliance is placed on decisions involving the granting of leave in some other retail tenancy disputes before the Tribunal. [5] Delamac submits that leave for Perpetual to be legally represented should be refused. He submits that Delamac can not afford to be legally represented and that the Tribunal was established to operate inexpensively and expeditiously. He has been under considerable psychological and financial stress as a consequence of the retail tenancy dispute, and considers he will be further disadvantaged if leave is granted. [6] The proceedings are moving towards a compulsory conference which has been scheduled for 29 October 2012. By the time the parties attend the compulsory conference, in compliance with the tribunal’s directions both parties will have defined their claims and counter-claims and filed witness statements in support of them. [7] If Perpetual is not given leave for legal representation at the conference, it can of course take legal advice beforehand. Indeed, it can be in contact with its lawyers from time to time during the conference. Presiding members at compulsory conferences regularly make time available to allow parties to speak with persons who are not in attendance, such as lawyers with whom a party may wish to confer. [8] Further, the factual and legal issues will not be determined in the conference. [9] The focus of the compulsory conference, which is an informal and confidential alternative dispute resolution process, will be on promoting a practical resolution to the dispute. This is best done by parties being directly involved in contributing and developing possible solutions.2 [10] Delamac will not be represented at the compulsory conference. 1 Section 43(1), 43(2). 2 Parkes v S & S Webster Investments Pty Ltd [2012] QCAT 190. -- 2 of 3 -- 3 [11] I am not convinced by the submissions that legal representation for Perpetual at the conference stage will assist with the early resolution of the dispute, nor that the granting of leave for legal representation is in the interests of justice at this stage of the proceedings. [12] I consider that it is appropriate in the circumstances of the proceeding for the parties to attend the informal compulsory conference through their respective company officers and for the issue of leave for legal representation to be further considered if a resolution is not reached in the course of the conference process. -- 3 of 3 --