Forrest v Abbott Builders (Qld) Pty Ltd
[2021] QCAT 60
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- Unreported Judgment
- Forrest v Abbott Builders (Qld) Pty Ltd[2021] QCAT 60
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Forrest v Abbott Builders (Qld) Pty Ltd[2021] QCAT 60
Forrest v Abbott Builders (Qld) Pty Ltd[2021] QCAT 60
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Forrest & Anor v Abbott Builders (Qld) Pty Ltd [2021] QCAT 60 |
PARTIES: | Phillip forrest jan forrest (applicants) v abBott builders (qld) pty ltd (respondent) |
APPLICATION NO/S: | BDL280-19 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 22 January 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: |
4:00pm on 5 February 2021.
4:00 pm on 5 February 2021.
4:00pm on 19 February 2021
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where the respondent builder has applied for legal representation – where there are both claims for defective/incomplete building work and for late completion of building works – where none of the individually identified issues are complex, but are complex when considered collectively they become complex – where the applicants oppose the granting of leave to be legally represented – whether leave to be legally represented should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29. Chandra v Queensland Building and Construction Commission [2014] QCA 335 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]On 22 January 2021 I made orders granting leave for the parties to be legally represented in the proceedings and for steps to be taken by the parties to progress the proceedings. These are my reasons.
- [2]The Forrests commenced these proceedings by application for domestic building dispute filed in November 2019. In the application they sought restitution of $40,000.00 and costs of $5,000.00. The application alleged both defective and incomplete works performed by Abbott Builders. The Forrests identified twenty ‘issues’ in the application.
- [3]The Forrests filed an application for commercial building disputes on 21 January 2020 (the second proceedings). In the application the Forrests claimed an amount of $12,000.00 from the respondent in respect of liquidated damages for late completion of the building works.
- [4]On 24 January 2020 the respondent applied to have the proceedings dismissed on the basis that the Forrests had not, before commencing the proceedings, complied with the requirements of s 77(2) of the QBCC Act. The tribunal dismissed the application.[1]
- [5]Abbott Builders filed its response, albeit not in the correct form, on 2 March 2020. Most if not all of the matters complained of by the Forrests were disputed.
- [6]On 25 March 2020 the tribunal ordered that these proceedings and the second proceedings be consolidated.
- [7]On 9 April 2020 a compulsory conference was held. Following the conference the tribunal made directions for the further conduct of the proceedings including:
- (a)The filing by the Forrests of their statements of evidence and a Scott Schedule by 30 July 2020;
- (b)The filing by Abbott Builders of its statements of evidence and response to the Scott Schedule by 22 October 2020;
- (c)The filing by the Forrests of their statements of evidence in reply by 3 December 2020.
- (a)
- [8]On 27 August 2020 the Forrests filed a further amended application for domestic building disputes. These amendments were largely confined to changes to the amount claimed for liquidated damages, the amount claimed for restitution and the amount claimed for costs.
- [9]The parties have filed their statements of evidence although the form in which the respondent’s evidence has been presented is deficient and will necessarily be the subject of further directions. As is most often the case in building dispute proceedings in the tribunal, the statements by the parties identify more comprehensively the relevant issues:
- (a)What was the meaning of the contract on its proper construction;
- (b)What was the date for practical completion;
- (c)Did the parties agree at any time to extend the date for practical completion;
- (d)Did the Forrests specify the use of particular building products, were there delays in the availability of these products and did this lead to delays in the progress, and completion, of the works;
- (e)Which party was responsible for the required building certifications;
- (f)Was building work undertaken by Abbott Builders incomplete and/or defective, noting that the report of the Forrests’ quantity surveyor identifies twenty items of defective work.
- (a)
- [10]Against this background, the application for leave to be legally represented falls for determination.
- [11]In support of the application Abbott Builders says that the proceedings are likely to involve complex questions of fact or law and that the presence of legal representatives will assist the tribunal. Despite being given the opportunity to file submissions in support of the application for representation, Abbott Builders did not do so.
- [12]In response, the Forrests say a number of things:
- (a)They were not informed of the reasons Abbott Builders was seeking representation;
- (b)The matter is not complex. The claim by the Forrests is for late completion damages and restitution for items not provided by Abbott Builders in accordance with the terms of the contract;
- (c)They are not represented and do not intend to be represented;
- (d)They oppose Abbott Builders being legally represented;
- (e)They cannot afford legal representation and will be at a disadvantage if Abbott Builders is legally represented;
- (f)The costs of legal representation would place an unfair financial burden on them and would significantly negate any damages or amount for restitution awarded.
- (a)
- [13]In reply, Abbott Builders says that it is a family owned company, has no expertise in contract law and that Mr Forrest is uniquely qualified to conduct the litigation on behalf of the applicants placing Abbott Builders at a disadvantage if leave for legal representation is not granted.
- [14]The Forrests responded to these submissions although no directions entitling them to do so were made. In the interest of fairness I have considered what the Forrests have said, particularly as Abbott Builders did not file any submissions in chief. The Forrests say that they have not been provided with a copy of the application for representation and submissions by Abbott Builders apart from the submissions in reply to which I have referred. The Forrests dispute the characterisation of Mr Forrest as being other than a ‘normal householder’ and say that Mr Forrest is not otherwise more qualified than any other lay party appearing before the tribunal.
- [15]I will address firstly the submission by the Forrests that they have not been provided with a copy of the application for leave to be represented and submissions in support. In their submissions filed 21 September 2020 the Forrests say that they have read the Form 56. Clearly, they received and considered the application for leave to be represented with the attached annexure. As to the submission that they have not received a copy of the submissions in support of the application, the fact of the matter is that Abbott Builders did not file any such submissions. The submission by the Forrests lacks substance.
- [16]Building disputes are often, by their very nature, complex both legally and factually. The degree of complexity varies from case to case. The quantum of the amount in dispute is not determinant of the complexity of the matter however it may be a contributing factor. It is not infrequently the case that self-represented parties appearing before the tribunal have a limited understanding of the legal basis for the claim they are making or that their opponent is making and they frequently do not understand the relevant legal principles applicable in the particular case. In the present proceedings, the Forrests seek a restitutionary remedy in respect of work not performed by Abbott Builders rather than making a claim for damages for breach of contract for defective and/or incomplete works in accordance with the principles in Robinson v Harman[2] and Bellgrove v Eldridge.[3] These observations are not intended to be criticisms of self-represented parties, but are made with a view to highlighting that building dispute proceedings may present complexities not immediately apparent to, or perhaps underestimated by, the parties.
- [17]I have referred earlier in these reasons to the various issues identified in the statements of evidence filed by the parties. While it may be argued that some of the individual issues to which I have referred might not, in isolation, be said to be complex, I am satisfied that considered collectively, there are sufficiently complex issues of law and fact that justify the parties being given leave to be legally represented.
- [18]I will now address the submission by the Forrests that they will be placed at a disadvantage if Abbott Builders is given leave to be legally represented. There are a number of things to be said about this submission. Firstly, a legal practitioner appearing before the Tribunal owes a duty first and foremost to the Tribunal and to the administration of justice. This duty is paramount and prevails to the extent of any inconsistency over any other duty the legal practitioner may owe. The former President of the Queensland Court of Appeal, Justice Margaret McMurdo AC, said the following about this duty:
Lawyers owe a duty to the court as a consequence of the court’s duty to the public to ensure the administration of justice. A lawyer must not act in a way which might defeat justice in the cause in which the lawyer is professionally engaged. As officers of the court, lawyers are concerned in the administration of justice and have an overriding duty to the court, to the legal profession and to the public even where this conflicts with the client’s instructions or personal interests.[4]
- [19]The duty of a legal practitioner appearing before the tribunal is to assist the tribunal in the doing of justice according to law. While it is accepted that this duty does not extend to positively assisting an opponent in the conduct of their case, the duty of the legal practitioner is nevertheless a significant one in assisting the tribunal to achieve the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the discharge by the tribunal of its duties under s 28 and s 29 of the QCAT Act. It is to these provisions that I now turn.
- [20]Sections 28 and 29 of the QCAT Act provide, inter alia, that the tribunal must, in conducting a proceeding, observe the rules of natural justice and must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the tribunal and the nature of assertions made in the proceedings and the legal implications of the assertions. In addition, s 29 provides that the tribunal must take all reasonable steps to understand the actions, expressed views and assertions of a party to or witness in the proceeding, having regard to the party’s or witness’s age, any disability, and cultural, religious and socioeconomic background. These duties are consistent with the objects of the QCAT Act which include having the tribunal deal with matter in a way that is fair.[5]
- [21]The discharge by the tribunal of those duties to which I have referred operate to mitigate against any potential disadvantage, or perceived disadvantage, an unrepresented party may experience in the conduct of proceedings in the tribunal.
- [22]The submissions made by the Forrests in relation to the issue of disadvantage are not infrequently voiced by parties in responding to applications for leave to be represented. The matters to which I have referred are, in turn, regularly referred to by the tribunal when considering an application for representation. For the reasons I have outlined, I am not persuaded that granting leave for legal representation will disadvantage the Forrests.
- [23]As to the submission by the Forrests that they are unable to afford legal representation, if leave is given to the parties to be represented then they have the right, but not the obligation, to have legal representation.
- [24]It follows from the above that I am persuaded that it is in the interests of justice for the parties to be granted leave to be legally represented in the proceedings.
- [25]I turn now to a consideration of the further directions to be made in the proceedings. I earlier referred to the reliance by the Forrests upon evidence from a quantity surveyor. The report is attached to a statement by Mr Forrest. It is appropriate to make a direction that the Forrests file a witness statement by the quantity surveyor attaching a copy of his expert report.
- [26]Abbott Builders has not filed a response to the Scott Schedule prepared by the Forrests. This step is required to be undertaken to assist the tribunal. Accordingly I will direct that the Forrests provide a copy of the Scott Schedule to Abbott Builders in electronic format to enable Abbott Builders to respond to each of the items in the schedule in an appropriate manner. It is far easier for a party to respond meaningfully to a Scott Schedule if the schedule is provided in an electronic form, rather than requiring the document to be reproduced manually in its entirety. I will direct that Abbott Builders complete and file the Scott Schedule. The matter will thereafter be listed for a directions hearing to progress the matter to a hearing.