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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Catania v Jolley  QCATA 109
Mark ivan jolley
23 July 2020
On the papers
Senior Member Howard, Presiding Member
APPEAL – EXERCISE OF DISCRETION – where Tribunal refused leave to be legally represented – whether applicant has impaired capacity – whether matter complex - whether error in the exercise of discretion.
Guardianship and Administration Act 2000 (Qld), schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, 43, s 45, s 142
Carr v Finance Corp of Aust Ltd (1) (1981) 147 CLR 246
Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hall v Nominal Defendant (1966) 117 CLR 423
Niemann v Electronic Industries Ltd  VR 431
Port of Melbourne Authority v Anshun Pty Ltd (1) (1980) 147 CLR 35
R v Lintrose Nominees Pty Ltd (2001) 4 VR 619
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- David and Christopher Catania (the applicants) commenced a building dispute against Mark Jolley in respect of building work arranged by David Catania to be performed at a property owned by Christopher Catania. They applied for leave to be legally represented in the proceeding. A Senior Member of the Tribunal refused the application for leave to be represented.
- The applicants have now filed an application seeking leave to appeal the decision to refuse leave for legal representation. Leave to appeal is required where the decision sought to be appealed is not a final decision of the Tribunal.
- Whether a judgment or order is final or interlocutory depends on the nature of the order made. The test is whether, as made, it finally disposes of the rights of the parties. That requires the court to look at the consequences of the order itself, and ask whether it finally determines the rights of the parties in a principal cause pending between them. It is not enough to ask simply whether it finally determines the actual application out of which it arises because, subject to the possibility of appeal, virtually every order meets that description. Regard must be had to the legal, rather than the practical, effect of the decision.
- The order refusing the applicants leave to be represented is interlocutory rather than final. Leave to appeal is therefore required.
- The principles under which such leave will be granted are well settled. The general rule is that leave will be refused unless it can be shown that the decision below was wrong, or at least attended with sufficient doubt to justify the grant of leave, and that substantial injustice would be done if the decision were to stand. In effect, the question of whether a decision is attended with sufficient doubt to warrant the grant of leave to appeal is the same as whether the proposed appeal has sufficient prospects of success.
- The application for leave to appeal, and if leave is granted, the appeal, is before us for determination.
- For the reasons explained in the paragraphs that follow, leave to appeal is refused.
The grounds of appeal
- Although not clearly stated, the grounds of appeal appear to be that:
- (a)the Tribunal erred in finding as follows:
- that the applicants made a submission that David Catania ‘lacked mental capacity’;
- that the proceeding does not raise complex issues.
- (b)Requiring Christopher Catania who resides in Victoria to represent himself in the proceedings is antithetical to s 3(b) of the QCAT Act.
The Tribunal’s decision
- The learned Senior Member briefly summarised the parties’ respective submissions about the application for leave for legal representation. The Tribunal then summarised s 43 of the QCAT Act.
- Section 43 provides:
(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 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.
- In summarising s 43, the Tribunal noted that in certain circumstances set out in s 43(2)(b), which include when the party has impaired capacity, the party may be represented. Otherwise, the Tribunal has a discretion as to whether to grant leave to a party to be represented.
- In discussing the parties’ submissions, the Tribunal said that the applicants had submitted that David Catania had impaired capacity, observing that if that was the case, he would be entitled to representation. The learned Senior Member then referred to an apparent inconsistency between the documents filed in support of the application for leave for representation which asserted that David Catania had ‘intellectual and psychiatric disabilities’ and the detailed statements filed in the proceeding by David Catania and by Ms Johanson about David Catania’s actions in relation to the building works in dispute. The learned Senior Member said that in the absence of further explanation, he was not persuaded that David Catania had impaired capacity.
- The Tribunal considered Christopher Catania’s assertions that distance and considerations of economy meant that he could not attend. It noted that the assertions were not supported by evidence. On that basis, the learned Senior Member found they were not a compelling argument in favour of the granting of leave.
- Further, the Tribunal considered the applicants’ arguments that the dispute involved complex questions of law and fact, including as a consequence of the issues raised in the response and counter-application. The Tribunal considered the dispute to be a straight-forward claim for defective work in the sanding and staining of flooring and stairs, which the applicants supported by a floor inspection report. Further, the Tribunal considered that the claims for compensation and physical assault relied upon by the applicants in arguing complexity, although raised by the response and counter‑application, were outside the building dispute and therefore outside the jurisdiction of the Tribunal. As such, these claims were not relevant to the proceeding and could not be relied upon as a basis for granting leave.
- For the reasons above, the Tribunal refused the application for leave.
- We turn now to the question whether the Senior Member’s discretion miscarried when he determined that the applicants should not be given leave to be represented. The Senior Member’s decision to refuse leave to be represented involved the exercise of a discretion. In accordance with well-established principle, it would not be sufficient for the applicants, in challenging the exercise of that discretion, to persuade the Appeal Tribunal that it might have been exercised differently.
- The applicants, to be successful on appeal, would need to show the Senior Member’s discretion had miscarried.
- If David Catania has ‘impaired capacity’ as defined for the purposes of the QCAT Act, then, as the learned Senior Member said, that would raise significant concern about whether the statements filed are actually his statements. In order to bring himself within s 43(2)(b)(i) of the QCAT Act, David Catania had to establish that he had ‘impaired capacity’. ‘Impaired capacity’ is defined, for the purposes of the QCAT Act, to have ‘the meaning under the Guardianship and Administration Act 2000’. There, ‘capacity’ is defined to mean:
"capacity", for a person for a matter, means the person is capable of—
- (a)understanding the nature and effect of decisions about the matter; and
- (b)freely and voluntarily making decisions about the matter; and
- (c)communicating the decisions in some way.
- If any of those elements are missing, a person has ‘impaired capacity’ for the matter. Capacity is therefore assessed in the context of a person’s capacity regarding their capacity for decisions about a specific matter. In the context of s 43 of the QCAT Act, the question must be whether a person has the capacity to represent themselves in a proceeding before the Tribunal; in this case, in a straightforward dispute about the quality of a floor sand and polish.
- The applicants’ submissions are in some respects equivocal in respect of the capacity issue. The evidence as to capacity comprised a medical report (for purposes of Berit Johanson seeking a carer payment or carer allowance in respect of David Catania from Centrelink) completed in February 2019 by Dr Ken Cameron. It states that David Catania has severe learning disabilities; major depression; PTSD; generalised anxiety disorder and requires care for ‘high level cognitive and learning difficulties.’ A statement signed by David and Christopher Catania further states that David Catania receives a disability support pension. In our view, it was not an error, in view of the limited evidence about capacity, for the Tribunal to conclude that it was not satisfied that David Catania had impaired capacity for the purposes of conducting the Tribunal proceedings.
- In relation to Christopher Catania, as the learned Member noted, evidence has not been presented to support the contention, in essence, that distance and the prohibitive costs of travel (it appears relative to the cost of legal representation) means that it is not viable for him to travel. There is no error identified in the Tribunal’s decision. There is no evidence provided to support the assertion of prohibitive cost.
- The applicants contend that requiring Christopher Catania to personally engage in the proceeding is antithetical to the objects of the QCAT Act to deals with matters in a way that is accessible, fair, just, economical, informal and quick. The objects of the QCAT Act relate to the Tribunal. That said, a party who brings proceedings in QCAT has responsibilities to act expeditiously in the proceeding. That responsibility extends to compliance with any directions for the progression of the matter imposed by the Tribunal. If Christopher Catania wishes to pursue his claim, he is subject to those obligations, whether represented or not.
- Section 43 provides that generally, subject to certain exceptions, parties are obliged to represent themselves unless the interests of justice require otherwise. The applicants seek orders for the Tribunal to exercise its discretion to allow them to be represented but without evidence supporting the submissions made about the alleged impediments to Christopher Catania representing himself in the proceeding. In our experience, parties to QCAT proceedings are not infrequently located interstate, or even overseas. Many of them travel to Queensland for the hearing of their proceedings, or in an appropriate case, seek directions allowing attendance by remote means.
- In respect of assertions that Christopher Catania, because he knows nothing about the relevant events, cannot represent himself, there is an apparent misunderstanding of the respective roles that a party assumes in representing themselves and that a person plays in providing evidence in a proceeding. Witnesses provide evidence. David Catania, subject to resolution of the capacity issues discussed above, may well be in a position to provide evidence in the proceeding about the events. Ms Johansen also provides evidence. In respect of the alleged defects, an inspection report of a Ms Harmer has also been filed by the applicants. Evidence sets out the facts as to relevant events that occurred. An expert may provide evidence as to matters within their area of expertise as are relevant to the proceedings.
- If lawyers represented Christopher Catania they would ensure that all of the evidence to be relied upon by the applicants was filed; attend any Tribunal ordered events including the hearing; cross-examine the other party’s witnesses at the hearing; and after the evidence concluded, provide submissions explaining or arguing the bases upon which, having regard to the relevant evidence and any relevant legal issues, the applicants should succeed in their claim and the orders they seek should be made. Alternatively, he performs that role on his own behalf in representing himself. It matters not whether he is, or is not, a witness in the proceedings. That said, we would expect that he would have some relevant evidence to give about his ownership of the property and the contract for the works.
- For the reasons above, we are not persuaded that any of the matters that the learned Senior Member took into account in the exercise of his discretion were irrelevant. Nor are we persuaded that he failed to take into account any matter to which he was required to have regard.
- The applicants bore the onus of persuading the Tribunal that they should be given leave to be represented. It is not to the point that a different Member may have exercised their discretion in favour of granting leave. The Senior Member was not persuaded to adopt that course having regard in particular to the lack of evidence about Mr Catania’s capacity, the relatively straightforward nature of the matter and the lack of other impediments to self-representation.
- We are not persuaded that the Senior Member’s conclusion was not reasonably open. There are insufficient prospects of successfully challenging the Senior Member’s decision to warrant the grant of leave to appeal. Accordingly, there is no basis for the grant of leave in relation to the decision refusing leave to be represented.
Conclusions and Orders
- It follows that an error in the Tribunal’s decision has not been identified in the appeal proceeding.
- We refuse leave to appeal. Orders are made accordingly.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii) (‘QCAT Act’).
Hall v Nominal Defendant (1966) 117 CLR 423; and Port of Melbourne Authority v Anshun Pty Ltd (1) (1980) 147 CLR 35.
Carr v Finance Corp of Aust Ltd (1) (1981) 147 CLR 246.
Niemann v Electronic Industries Ltd  VR 431 at 441–2; and Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
R v Lintrose Nominees Pty Ltd (2001) 4 VR 619.
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595.
 QCAT Act, Schedule 3, ‘impaired capacity has the meaning under the Guardianship and Administration Act 2000’.
 QCAT Act, Schedule 3.
 QCAT Act, s 3(b).
 QCAT Act, s 45.
- Published Case Name:
Christopher Catania and David Catania v Mark Ivan Jolley
- Shortened Case Name:
Catania v Jolley
 QCATA 109
Senior Member Howard, Member Traves
23 Jul 2020