Milne v Mantarro[2025] QCAT 83

REASONS FOR DECISION

1. [1]
   The principal proceedings between the parties arise out of a dispute about a dividing fence between their properties. The applicants obtained orders, initially for the repair of an existing fence, and then for its replacement. They have applied for orders punishing the respondents for contempt, and for costs on an indemnity basis. The respondents have applied for orders dismissing the contempt application, and for different orders relating to the fence. The applicants have also applied for leave to be legally represented. These reasons deal with that application.

Submissions of the Parties

2. [2]
   The applicants rely on s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). They submit that the proceedings involve complex questions of fact and law; and it is in the interests of justice that leave be given for the parties to be represented. They do not oppose an order that the respondents have leave to be legally represented.
3. [3]
   The applicants submit that complex questions of law arise out of the fact that the Tribunal has to determine the contempt proceedings. The onus of proof which they bear is the onus of establishing contempt beyond a reasonable doubt. It is therefore in the interests of justice that leave be given to the parties to be legally represented. They refer by way of illustration to Scenic Rim Regional Council v Cutbush.^[1]
4. [4]
   The applicants also submit that complex questions of fact arise by reason of the fact that each stage of these proceedings has involved the submission of voluminous evidence and affidavit material. Complexity is said to arise from a number of matters, some of which have already been referred to, but also because there is a dispute about whether the dividing fence is on the common boundary between the properties; and about the effect of the second order relating to the fence. There is also a dispute about whether the applicants can have a fence constructed to a standard greater than that ordered by the Tribunal.
5. [5]
   They submit that legal representation will further the objects of the QCAT Act, because it would assist the Tribunal in complying with its obligations to deal with matters in a manner that is fair, just, economical, informal and quick. That is because it will assist with the full agitation of complex legal and factual issues; it will assist with identifying relevant legal principles; irrelevant considerations are more likely to be excluded; and time and costs will be saved.
6. [6]
   The respondents oppose the application on the grounds that it will add to the complexity and costs of, what they submit, is a simple matter. The grant of leave would negate the legislative intention that parties represent themselves. The Tribunal has sufficient expertise to decide ‘what a dividing fence is’. The applicants have supplied legal opinion 50 pages in length (a submission apparently intended to demonstrate the added complexity that might arise if leave is granted). The applicants have failed to provide sufficient evidence of contravention of the orders by the respondents; and it is the applicants themselves who are in contempt. The applicants seek leave to be legally represented for the purpose of assigning blame and exacting punishment against the respondents.

Relevant legalisation

7. [7]
   Section 43 of the QCAT Act includes the following:

3. 43
   Representation

3. (1)
   The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.

3. (2)
   In a proceeding, a party—

3. (a)
   may appear without representation; or

3. (b)
   may be represented by someone else if—

3. (i)
   the party is a child or a person with impaired capacity; or

3. (ii)
   the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or

3. (iii)
   an enabling Act that is an Act, or the rules, states the person may be represented; or

3. (iv)
   the party has been given leave by the tribunal to be represented.

3. (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—

3. (a)
   the party is a State agency;

3. (b)
   the proceeding is likely to involve complex questions of fact or law;

3. (c)
   another party to the proceeding is represented in the proceeding;

3. (d)
   all of the parties have agreed to the party being represented in the proceeding.

8. [8]
   The following provisions of the QCAT Act, though are not expressly referred to in the submissions of the parties, are made relevant by the respondents’ submissions:

3. 3
   Objects

3. The objects of this Act are—

3. …

3. (b)
   to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; and

3. 4
   Tribunal’s functions relating to the objects

3. To achieve the objects of this Act, the tribunal must—

3. …

3. (b)
   encourage the early and economical resolution of disputes before the tribunal, including, if appropriate, through alternative dispute resolution processes; and

3. (c)
   ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice…

Consideration

9. [9]
   The starting point for considering whether a party should be given leave to be represented is that the main purpose of s 43 is to have parties represent themselves. That reflects, in part, the of objects stated in s 3 of the QCAT Act, and in particular the object that the Tribunal deal with matters in a way that is economical and informal. It also reflects the requirement that the Tribunal ensure proceedings are conducted in an informal way that minimises costs to the parties.
10. [10]
    However, the main purpose stated in s 43 is qualified by the reference to the interests of justice. That gives rise to a broad discretion based on a range of considerations.^[2] In any event, the relevance of the matters primarily relied upon by the applicants is apparent from s 43(3)(b) of the QCAT Act.
11. [11]
    The Tribunal considers that there are significant complexities in the matter, because it will be required to consider the following:

    1. the Tribunal’s powers to deal with contempt;
    2. the effect of the orders, which have previously been made;
    3. possible procedural issues relating to dealing with contempt;
    4. whether the applicants have established that the respondents are in contempt of the order (and in particular, what evidence is required to establish contempt);
    5. if contempt is established, what orders are to be made; and
    6. whether the existing orders can be varied, and if so, whether they should be.
12. [12]
    Inevitably, the involvement of lawyers will result in costs to the parties and accordingly will not minimise their costs. Nevertheless, the Tribunal considers that it is likely to be assisted in its consideration of the complex matters which have been referred to, if the parties are legally represented. It is to be hoped that the Tribunal will receive submissions which assist in identifying real issues, as well as the relevant evidence, and the legal principles that are to be applied. That is assistance which the Tribunal is unlikely to receive otherwise. It is expected that the parties will exchange submissions in advance, so that the respondents are aware before the hearing of the matters to be relied upon, and the arguments in support of them. That may well result in greater efficiency in the conduct of the proceedings in the Tribunal. On balance, these considerations warrant a grant of leave.
13. [13]
    The respondents have submitted that leave has been sought in order to assign blame and exact punishment against them. They have not identified evidence supporting that submission. On the other hand, there is a strong likelihood that a non-lawyer, bringing proceedings for contempt, would wish to have legal representation to deal with such a matter. The respondents’ submission is not made out.
14. [14]
    Although the respondents have not sought leave to be legally represented, the considerations referred to would warrant a grant of leave.  Moreover, particularly in contempt proceedings, it is highly desirable that respondents are legally represented, in view of the serious nature of the orders which might be made against them.

Conclusion

15. [15]
    Leave should be granted to the parties to be legally represented in these proceedings.