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Hall v Queensland Building and Construction Commission[2023] QCATA 108

Hall v Queensland Building and Construction Commission[2023] QCATA 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hall v Queensland Building and Construction Commission [2023] QCATA 108

PARTIES:

Andrew Hall

(applicant/appellant)

v

QueensLAnd Building and Construction Commission

(respondent)

APPLICATION NO/S:

APL264-22

ORIGINATING APPLICATION NO/S:

GAR455-21

MATTER TYPE:

Appeals

DELIVERED ON:

14 August 2023

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Fitzpatrick

ORDERS:

  1. The application by the respondent seeking leave for legal representation is granted.
  2. The application by the applicant seeking orders against Mr Joshua Henderson is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where application for leave opposed by other party – whether it was improper for a party’s legal representative to provide submissions before leave to represent was granted – whether interests of justice require leave to be granted.

Acts Interpretation Act 1954 (Qld) s 14A

Queensland Building and Construction Commission Act 1991 (Qld) ss 5, 93A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 43, 100, 102

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249

Drane v Taylor (No 2) [2022] QCATA 157

Gold Coast Tree Houses Pty Ltd v Lander [2022] QCATA 178

Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Sommers v Bycroft [2020] QCATA 55

Western Australian Planning Commission v Dungey [2010] WASC 52

APPEARANCES & REPRESENTATION:

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

Application for miscellaneous matters filed 7 January 2023 by the Queensland Building and Construction Commission (QBCC) seeking leave for legal representation.

  1. [1]
    The Queensland Building and Construction Commission (‘QBCC’) is granted leave for legal representation for the following reasons.

Interests of justice

  1. [2]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the position with respect to legal representation before the Tribunal. Section 43(1) provides that the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise. Importantly s 43(2) provides that a party may “appear” without representation or may be represented by someone else in certain circumstances, including where leave is given.
  2. [3]
    Section 43(3) provides a number of discretionary factors to which the Tribunal may have regard when considering whether to give a party leave to be represented in a proceeding. Relevantly, the QBCC is a State agency[1]. That is a factor in support of the grant of leave.
  3. [4]
    Further, the proceeding involves a question of law on which the Appeal Tribunal would be assisted by submissions from a lawyer for the QBCC. The question of law goes to the Tribunal’s jurisdiction to determine a matter concerning the review of an original decision, when in the course of the external review proceeding, the decision is made the subject of an internal review. The issue will involve construing the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The question has been considered in other Tribunal proceedings, with a different outcome. The other proceedings are the subject of appeal.
  4. [5]
    I am satisfied that the issue is sufficiently complex to justify the grant of leave for legal representation.
  5. [6]
    Another relevant factor is that this proceeding is one of ten ongoing review and appeal proceedings arising out of building work carried out at the same residential house. Norton Rose Fulbright holds instructions to act on behalf of the QBCC in each of the ten matters and has leave to appear on QBCC’s behalf in seven matters, with some applications still outstanding, and the grant of leave being the subject of appeal in matter APL134-23. I consider there is merit in one representative with knowledge and conduct of all matters appearing in this matter. That is a factor in support of a grant of leave.
  6. [7]
    I note that the QBCC, in its submissions filed 22 February 2023, indicates it is prepared to provide an undertaking that it will not apply for a costs order pursuant to s 102 of the QCAT Act, in the event that the appeal is unsuccessful, unless Mr Hall conducts himself in a manner that is found to be frivolous, vexatious or an abuse of process under s 102(3)(e). Mr Hall has not raised as an objection to legal representation any concern in relation to exposure to a costs order. Although relevant to my consideration the proposed undertaking is not determinative, particularly where there may well be a debate as to the character of Mr Hall’s conduct of this litigation.
  7. [8]
    Mr Hall submits that the interests of justice do not require legal representation in this appeal.
  8. [9]
    Mr Hall mistakenly contends that the application for leave for legal representation was not properly made because no certificate of authority was completed. The certificate is only required where a person who is not an Australian legal practitioner or government legal officer is seeking to represent a party.[2] That is not the case here.
  9. [10]
    Mr Hall submits that s 93A of the QBCC Act only provides for legal representation in two types of proceeding, debt recovery and a public examination. I note that the language of s 93A is permissive. It does not say a party “may only” be represented by a lawyer in the Tribunal, in two given circumstances. The section does not otherwise modify s 43 of the QCAT Act. Further, the explanatory memorandum for the relevant amendment to the QCAT Act provides that the right to representation in s 93A is in addition to the rights in s 43 of the Act.
  10. [11]
    Mr Hall raises a number of allegations against Mr Henderson of Norton Rose Fulbright. Mr Hall’s submissions as to why leave for legal representation should not be granted, canvass these allegations to support an argument that the interests of justice are being perverted by the involvement of Mr Henderson due to his alleged continued misconduct. The position put by Mr Hall is that there should be no leave for legal representation and especially not where Mr Henderson of Norton Rose Fulbright is the lawyer acting for the QBCC in the matter.
  11. [12]
    I will deal later with the allegations made against Mr Henderson, but state now that the allegations are misconceived at best and have not been taken into account in considering the question of leave for legal representation.
  12. [13]
    It is asserted that Norton Rose Fulbright should not have filed submissions on behalf of the QBCC until leave was granted because that step involves legal representation. Mr Hall objects to the order made by me on 8 February 2023, that, to the extent necessary leave was given for the lawyers to provide written submissions. That order was made in the interests of efficient conduct of the matter. Mr Hall has sought and been given written reasons for that order.
  13. [14]
    In view of the order made on 8 February 2023, I have considered the submissions earlier filed by Norton Rose Fulbright in deciding this matter.
  14. [15]
    I have also referred to the submissions filed by Norton Rose Fulbright after that date insofar as they go to the question of leave for legal representation and are responsive to the application that Mr Henderson be the subject of an order disentitling him from acting through his firm as a representative for the QBCC.
  15. [16]
    I have done so because it would be cumbersome and pointless for the QBCC to be required to make those same submissions under its own hand, rather than referring to the QBCC’s submissions filed by its agent Norton Rose Fulbright.
  16. [17]
    For the reasons which follow I do not consider leave is required for a party to be represented by a lawyer in the sense of having its lawyers act for it in a matter, as opposed to appearing in the matter.
  17. [18]
    In any event, I am satisfied on the basis of the grounds I have addressed that it is in the interests of justice that the QBCC is legally represented in this appeal proceeding.
  18. [19]
    In this decision I will deal with what is meant by leave to represent a party in a proceeding. I do so because Mr Hall has raised the issue in the context of the submissions to which I may have regard in determining the QBCC’s application. Mr Hall has also raised decisions which conflict with my conclusion. I give my reasons for departing from the reasoning of the learned Members in those matters.

What sort of legal representation requires leave?

  1. [20]
    Mr Hall places considerable weight on two recent decisions made by the Tribunal as to the meaning of “representation” to bolster his complaint that the submissions of the QBCC in relation to representation given under the hand of their lawyers, have been taken into account before leave is granted for the lawyers to represent the QBCC.
  2. [21]
    Mr Hall relies on the reasoning in Drane v Taylor[3] and Gold Coast Tree Houses Pty Ltd v Lander[4] that representation involves more than speaking at an oral hearing, but also involves making submissions, signing, filing and serving documents, and being the channel of communications for the party for the proceeding, and that leave is required for a lawyer to represent a party whether or not there was an oral hearing.
  3. [22]
    The QBCC submits that there appears to be differing views taken by Members of the Tribunal as to the exact parameters of when leave is required for a party to be represented in a proceeding before the Tribunal. That is the case.
  4. [23]
    I respectfully disagree with the approach taken by the learned Members in Drane and Gold Coast Tree Houses. I consider that the reference in s 43 of the QCAT Act to representation and the requirement for leave for representation, is limited to appearance at a hearing of the Tribunal or other proceeding where personal participation is necessary. I do not consider representation for which leave is required under the QCAT Act involves making submissions, or signing, filing, and serving documents on behalf of a party. I consider that is merely acting in a matter as an agent.
  5. [24]
    Section 43 of the QCAT Act must be construed by reference to the text of the provision. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[5] In the interpretation of s 43, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[6]
  6. [25]
    The structure of s 43 of the QCAT Act is important. The section must be read as a whole. The section commences with a statement that the main purpose of the section is to have parties “represent” themselves unless the interests of justice require otherwise. Section 43(1) does not provide a meaning for “represent” nor does it set out the scope of what is involved in representing oneself. However, s 43(2) explains and expands on the general position. Section 43(2)(a) expressly states that a party may “appear” without representation. Section 43(2)(b) gives the alternative that a party may be represented by someone else in given circumstances.
  7. [26]
    I consider that the use of the word “appear” in s 43(2) gives express meaning to the type of representation which is being considered in s 43. Because s 43(2)(b) is given as an alternative to s 43(2)(a), the word “represented” must be construed consonantly with the words “may appear without representation”. That informs the meaning of representation wherever it appears in the balance of s 43.
  8. [27]
    What then does “appear” mean? In the civil courts a party is said to “act” in a proceeding in terms of taking all the steps necessary to conduct the matter. A party may act for themselves or through a representative. In the civil courts a defendant “appears” in a proceeding by informing a plaintiff that the defendant intends to defend the proceedings. In my view if a party required leave for a representative to act in a proceeding on behalf of a party the word “act” would have been used, as it has a known meaning. The reference to a party appearing without a representative is not confined to a defendant and must therefore bear a different meaning to appearance in the civil courts. The most probable meaning of “appear” in s 43(2)(a) of the QCAT Act is its ordinary meaning of an in-person appearance. Personal appearance occurs in the Tribunal at a hearing, compulsory conference or directions hearing where personal participation is required.
  9. [28]
    In coming to this conclusion, I have been guided by the reasoning of Justice Beech in Western Australian Planning Commission v Dungey[7]. His Honour was concerned with a similar task, in construing a section of the Planning and Development Act 2005 (WA) in relation to representation by a legal practitioner in the State Administrative Tribunal. Relevantly the section provided that:

(1) A party to an appeal may:

(a) appear personally; or

(b) subject to subsection (4) be represented by an agent or legal practitioner.

  1. [29]
    The question before his Honour was whether the phrase “represented by a legal practitioner” refers only to a legal practitioner appearing on behalf of a party at a Tribunal hearing or whether it carries a wider meaning encompassing the preparation by a legal practitioner of documents required to be filed at the Tribunal.
  2. [30]
    His Honour concluded that a narrow view of legal representation, limited to attendance at a hearing was the preferable construction of the provision. I have followed His Honour’s approach to construction of the provision.  His Honour went on to address the consequences of a wider construction. Justice Beech noted that the common law recognises the public interest in a citizen’s entitlement to obtain legal advice and that right cannot be abrogated except by clear words in legislation.[8] His Honour said that it is undesirable for there to be uncertainty as to where to draw the line between taking advice and representation.
  3. [31]
    In my view this is borne out, for example, where a party seeks assistance from a lawyer in the drafting of a submission. It may be said that the lawyer is representing a party by drafting the submission. In that case, is leave required before a party may rely on a submission drafted by its lawyer? If leave is required that will have the undesirable effect of constraining the right to seek legal assistance.
  4. [32]
    Mr Hall appears to suggest that, apart from who drafted a submission, if a lawyer signs the submission the lawyer is representing the party and that the submission cannot be relied upon until the lawyer has leave for legal representation.
  5. [33]
    I do not think that signing a document as an agent turns a lawyer into a representative for anything other than signing the document.[9] The document remains the party’s document, whether it be submissions, contentions, a response, or an interlocutory application. Likewise with attending to filing and service of documents. They are mechanical acts which might help a party navigate the processes of the Tribunal, but they do not in any substantive sense amount to representation. Those steps are “acting” in a proceeding.
  6. [34]
    It is hard to see what interest the Tribunal might have in requiring leave for a lawyer to sign submissions on behalf of a party and to attend to filing. The absurd result is that it is acceptable for a lawyer to prepare submissions for a party, if the presence of a lawyer is not revealed, but it is unacceptable for those submissions to be filed and relied upon if the lawyer is revealed by signing those submissions as agent, without first establishing that it is in the interests of justice for the lawyer to do so.
  7. [35]
    The substantive matter of concern to the Tribunal consistent with the objects of the QCAT Act[10] is the conduct of a fair hearing, especially where a party is self-represented. The Tribunal is necessarily concerned to ensure a hearing proceeds with a minimum of formality and that it is a fair process for all parties.[11] That is the point at which interests of justice considerations become relevant and the Tribunal must ensure that it acts consistently with the objects of the QCAT Act, and the manner in which a proceeding should be conducted.
  8. [36]
    That consideration is consistent with a construction of s 43 of the QCAT Act whereby leave is required for legal representation to appear at a hearing, or proceeding where personal appearance is necessary and it is in the interests of justice for that to occur. I consider it is an unnecessary and undesirable step to construe s 43 as requiring leave for a lawyer to assist a party with any aspect of preparation of their case, lest it interferes with the right to obtain legal advice.
  9. [37]
    In my view the extent of assistance given by a legal advisor to a client is not a relevant or proper enquiry for the Tribunal. It might be said that it is relevant insofar as it may impact a claim for costs against an unsuccessful party, but in reality, the question of whether leave has been given for a lawyer to act generally in a matter is not determinative of whether a costs order will be made or not. It is a mistake to conflate the two issues. A costs order may be made in circumstances where no leave for legal representation has been sought or given, if a party can establish that it is in the interests of justice for that to occur.[12] Likewise, even if leave has been given for legal representation there may be no basis on which to make a costs order within the terms of s 100 and s 102 of the QCAT Act. I agree with the Judicial Member in Drane’s case that the absence of leave to be represented (where that is required) does not mean that no legal costs can be allowed to a party.  Rather, the absence of leave is a discretionary factor relevant to deciding whether the interests of justice require that an order for costs be made.[13]
  10. [38]
    In coming to a different conclusion to the learned Judicial Member in Drane’s case, as to where leave for legal representation is required, the critical point of departure in our reasoning arises from the significance of the word “appear” in s 43(2) of the QCAT Act. I do not consider the word can be ignored. As I have set out, the word is structurally linked to the following references to representation. I do not think it is material that s 43 does not refer to a hearing and is not set out in the Hearings Division of the QCAT Act. The Act in other provisions encompasses reference to a hearing when referring to proceedings. For example, in sections 28 and 29.  The Judicial Member took some guidance from Rule 52 to conclude that s 43 intended to distinguish between appearing in a proceeding and being represented in a proceeding. With respect, I disagree.  In my view Rule 52 simply provides how a party who is not an individual effects an appearance in person. So, for example by Rule 53 a State Agency may physically appear through an employee, officer or member of the agency who is duly authorised. However, consistent with s 43(2)(a), Rules 52 and 53 provide that a lawyer may only “appear” in a proceeding with leave. I do not think Rule 52 has the effect attributed to it in Drane’s case. I do not think Rule 52 provides support for the position that leave is required for a lawyer to act generally in a matter, not just to appear in the matter. On the Judicial Member’s own reasoning the consequence of leave not being sought or granted in a proceeding does not limit a party’s entitlement to seek and to be granted a costs order to recover the costs of legal assistance in the proceeding. That is consistent with an entitlement to receive that assistance without leave, which of course is a common law right.
  11. [39]
    I note that the learned Member in Gold Coast Tree Houses does not address the wording of s 43(2) of the QCAT Act in following the decision in Drane. I accept that the sort of matters referred to by the Member as ordinarily undertaken by a lawyer for a party involve the lawyer acting in the matter. I disagree that leave is required to undertake those tasks. As explained, I take that view because of the wording of s 43(2)(a) of the QCAT Act. That is consistent with the approach previously taken by the Tribunal, noting however that there have been conflicting positions taken over the years.[14]

Application for miscellaneous matters filed 3 February 2023 by Andrew Hall seeking orders against Mr Joshua Henderson

  1. [40]
    For the reasons which follow the Appeal Tribunal refuses the application by Mr Hall seeking orders that:
    1. Mr Henderson of Norton Rose Fulbright Lawyers be permanently barred from representing any parties at the Queensland Civil and Administrative Tribunal; and
    2. the Tribunal issue penalties against Mr Henderson for offences in breach of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and refer Mr Henderson to the Legal Services Commissioner.
  2. [41]
    Mr Hall makes very serious allegations against Mr Henderson which are all denied by him. Mr Henderson submits, and I accept, that he is not the subject of any disciplinary proceedings and has not been found guilty of professional misconduct which would justify his removal as a lawyer acting in this matter. I also accept that no step taken by him in this proceeding, or the matter below, falls within s 216 and s 217 of the QCAT Act which would justify the imposition of penalties.
  3. [42]
    It appears that underlying the allegations made against Mr Henderson is Mr Hall’s view that providing submissions when no leave has been granted for legal representation is improper and that submissions made in relation to the substantive matters in the matter below and in this proceeding are wrong, and are therefore misleading. For the reasons set out earlier I do not consider it improper for Mr Henderson to provide the QBCC’s submissions before leave to represent has been granted. As to the substantive matters with which this appeal is concerned, the Appeal Tribunal has not yet determined the matter. Mr Hall will have a full opportunity to respond to the QBCC’s submissions and a determination will be made by the Appeal Tribunal constituted in the matter. An interlocutory application to remove a legal practitioner is not the appropriate vehicle for determination of the grounds of appeal.
  4. [43]
    The orders sought by Mr Hall are refused.

Footnotes

[1] Queensland Building and Construction Commission Act 1991 (Qld) s 5.

[2] Queensland Civil and Administrative Tribunal 2009 (Qld) s 43(5).

[3]  (No 2) [2022] QCATA 157.

[4]  [2022] QCATA 178, [24].

[5] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].

[6] Acts Interpretation Act 1954 (Qld) s 14A; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262 in relation to the analogue Acts Interpretation Act 1901 (CTH)  s 15AA.

[7]  [2010] WASC 52.

[8]  Ibid [59] citing Baker v Campbell (1983) 153 CLR 52, 114, 116 and Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, [11].

[9] Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1, [22].

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3.

[11]  Ibid s 28.

[12] Sommers v Bycroft [2020] QCATA 55, [19]; Drane v Taylor (No2) [2022] QCATA 157, [18]-[21].

[13] Drane v Taylor (No 2) [2022] QCATA 157, [21].

[14] Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1, [22].

Close

Editorial Notes

  • Published Case Name:

    Hall v Queensland Building and Construction Commission

  • Shortened Case Name:

    Hall v Queensland Building and Construction Commission

  • MNC:

    [2023] QCATA 108

  • Court:

    QCATA

  • Judge(s):

    A/Senior Member Fitzpatrick

  • Date:

    14 Aug 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
2 citations
Jump To
Cite 1 - [2009] HCA 41
Cite 2 - [2009] HCA 41
Baker v Campbell (1983) 153 C.L.R . 52
1 citation
Jump To
Cite 1 - (1983) 153 C.L.R . 52
Chugg v Pacific Dunlop Limited (1990) 170 CLR 249
2 citations
Jump To
Cite 1 - (1990) 170 CLR 249
Cite 2 - (1990) 170 CLR 249
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543
1 citation
Jump To
Cite 1 - (2002) 213 CLR 543
Drane v Taylor (No 2) [2022] QCATA 157
4 citations
Jump To
Cite 1 - [2022] QCATA 157
Cite 2 - [2022] QCATA 157
Cite 3 - [2022] QCATA 157
Cite 4 - [2022] QCATA 157
Gold Coast Tree Houses Pty Ltd v Lander No 2 [2022] QCATA 178
2 citations
Jump To
Cite 1 - [2022] QCATA 178
Cite 2 - [2022] QCATA 178
Meiklejohn's Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1
3 citations
Jump To
Cite 1 - [2016] QCATA 1
Cite 2 - [2016] QCATA 1
Cite 3 - [2016] QCATA 1
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Sommers v Bycroft [2020] QCATA 55
2 citations
Jump To
Cite 1 - [2020] QCATA 55
Cite 2 - [2020] QCATA 55
Western Australian Planning Commission v Dungey [2010] WASC 52
2 citations
Jump To
Cite 1 - [2010] WASC 52
Cite 2 - [2010] WASC 52

Cases Citing

Case NameFull CitationFrequency
Cahill v Rideshare Solutions Pty Ltd [2025] QCATA 442 citations
TAH v A School [2024] QCAT 4342 citations
1

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