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Mulder v Queensland Building and Construction Commission & Anor[2019] QCAT 78

Mulder v Queensland Building and Construction Commission & Anor[2019] QCAT 78

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mulder v Queensland Building and Construction Commission & Anor [2019] QCAT 78

PARTIES:

HEINRICH GEORGE LUDIWICK MULDER

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

and

DR FAMILY PTY LTD TRADING AS CONSOLIDATED BUILDING CONCEPTS

PTY LTD

(respondents)

APPLICATION NO/S:

GAR119-18; GAR145-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 March 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The parties have leave to be legally represented in the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – whether interests of justice require leave to be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 43

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 53

Mulder v Queensland Building and Construction Commission [2018] QCAT 242

Mulder v Queensland Building and Construction Commission [2018] QCAT 259

REPRESENTATION:

 

Applicant:

Self-represented

First Respondent:

S Monaghan

Second Respondent:

Geldard Sherrington Lawyers

APPEARANCES:

 

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

  1. [1]
    On 12 March 2018, the Queensland Building and Construction Commission (‘QBCC’) decided not to issue a direction to rectify in respect of allegedly defective work described in a complaint by Mr Mulder. This decision is the subject of review by the Tribunal in proceedings GAR119-18.
  2. [2]
    On 27 March 2018, the QBCC decided to disallow Mr Mulder’s claim for assistance under the statutory insurance scheme. This decision is the subject of review by the Tribunal in proceedings GAR145-18.
  3. [3]
    On 3 July 2018, the Tribunal directed that GAR119-18 and GAR 145-18 will remain as separate proceedings and travel together.
  4. [4]
    On 24 October 2018, the Tribunal joined DR Family Pty Ltd trading as Consolidated Building Concepts Pty Ltd (‘Consolidated Building Concepts’) as a respondent to the proceedings.
  5. [5]
    On 12 December 2018, Consolidated Building Concepts filed an application to be legally represented in the proceedings.
  6. [6]
    The effect of s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is that parties in proceedings in this Tribunal are to represent themselves unless the interests of justice require otherwise.
  7. [7]
    Section 43 relevantly provides as follows:
  1. (1)
    The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
  1. (2)
    In a proceeding, a party—
  1. (a)
    may appear without representation; or
  1. (b)
    may be represented by someone else if—
  1. (i)
    the party is a child or a person with impaired capacity; or
  1. (ii)
    the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
  1. (iii)
    an enabling Act that is an Act, or the rules, states the person may be represented; or
  1. (iv)
    the party has been given leave by the tribunal to be represented.
  1. (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—
  1. (a)
    the party is a State agency;
  1. (b)
    the proceeding is likely to involve complex questions of fact or law;
  1. (c)
    another party to the proceeding is represented in the proceeding;
  1. (d)
    all of the parties have agreed to the party being represented in the proceeding.

  1. [8]
    In accordance with s 43(2)(b)(iv), Consolidated Building Concepts requires the leave of the Tribunal to be legally represented as it does not satisfy s 43(2)(b)(i) to
    s 43(2)(b)(iii). 
  2. [9]
    The Tribunal’s discretion when considering whether to grant leave for a party to be represented is exercised in the context of the requirement to comply with the interests of justice as set out in s 43(1), as well as the additional factors set out in s 43(3).
  3. [10]
    The Tribunal has previously granted leave to the QBCC to be legally represented through an in-house legal officer.[1]  In these circumstances, that is to say where another party to the proceeding is legally represented, I consider it is in the interests of justice that Consolidated Building Concepts also have leave to be legally represented. 
  4. [11]
    I note in passing that while the QBCC was given leave under rule 53 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) to be represented by an in-house legal officer, this rule does not apply to Consolidated Building Concepts as it is not a state agency.
  5. [12]
    Given the basis upon which I am granting leave, it appears efficacious to grant all parties leave to be legally represented.

Footnotes

[1] Mulder v Queensland Building and Construction Commission [2018] QCAT 242; Mulder v Queensland Building and Construction Commission [2018] QCAT 259.

Close

Editorial Notes

  • Published Case Name:

    Heinrich George Ludiwick Mulder v Queensland Building and Construction Commission & Dr Family Pty Ltd T/A Consolidated Building Concepts Pty Ltd

  • Shortened Case Name:

    Mulder v Queensland Building and Construction Commission & Anor

  • MNC:

    [2019] QCAT 78

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    04 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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