McCrystal v Queensland Building and Construction Commission
[2023] QCATA 133
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- Unreported Judgment
- McCrystal v Queensland Building and Construction Commission[2023] QCATA 133
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McCrystal v Queensland Building and Construction Commission[2023] QCATA 133
McCrystal v Queensland Building and Construction Commission[2023] QCATA 133
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | McCrystal v Queensland Building and Construction Commission [2023] QCATA 133 |
PARTIES: | shaun mCcrystal (applicant/appellant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | APL385-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 2 November 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice Mellifont, President |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY TRIBUNALS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where the respondent sought leave to be legally represented in an appeal of a decision under the Right to Information Act 2009 (Qld) (RTI Act) – whether s 122(2) of the RTI Act grants a right to be legally represented without leave of the Tribunal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43(2)(b) Right to Information Act 2009 (Qld), s 122(2) Underwood v Department of Housing and Public Works & Ors [2013] QCATA 130, departed from |
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
- [1]On 20 December 2022, the appellant filed in the Tribunal an application for leave to appeal or appeal from the decision of the Information Commissioner of 18 November 2022 under the Right to Information Act 2009 (Qld) (“the RTI Act”). On 1 March 2023, the respondent filed in the Tribunal an application for leave to be legally represented in the proceeding, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 43(2)(b)(iv). It is that application which is now before me.
Background
- [2]The appellant made an application to the respondent under the RTI Act for access to certain information. Some information was disclosed, but the respondent refused access to other information. The appellant sought external review by the Information Commissioner, who affirmed the decision of the respondent, and varied the decision to extend it to some additional information located during the review. Under the RTI Act s 119, the appellant has a right to appeal to the Appeal Tribunal from the decision of the Information Commissioner, but only on a question of law.
- [3]Directions have been given that the respondent’s application be determined on the papers, and extensive submissions have been filed by the parties. The appellant has opposed the application of the respondent, and initially proceeded on the basis that the matter was to be decided as a matter of discretion. In the course of its submissions, the respondent consented to the appellant’s being given leave to be legally represented, and agreed not to apply for costs if successful in the appeal.
- [4]Subsequently the parties were referred by the Tribunal to the RTI Act s 122(2). The respondent submitted that that provision gave it a right to be legally represented. The appellant submitted that that provision did not override the discretion conferred by the QCAT Act.
Consideration
- [5]The RTI Act provides in s 122(2) as follows:
For the QCAT Act, section 43(2)(b)(iii), a person may be represented before QCAT by a lawyer on a reference of a question of law under section 118 or on an appeal on a question of law under section 119.
- [6]The QCAT Act provides in s 43(2) as follows:
In a proceeding, a party—
- may appear without representation; or
- may be represented by someone else if—
- the party is a child or a person with impaired capacity; or
- the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
- an enabling Act that is an Act, or the rules, states the person may be represented; or
- the party has been given leave by the tribunal to be represented.
- [7]The QCAT Act, in s 6(2), defines an “enabling Act” as (relevantly) “an Act, other than this Act, that confers … appeal jurisdiction on the tribunal”. The jurisdiction of the Appeal Tribunal to determine appeals from the Information Commissioner is conferred by the RTI Act s 119(4), so the RTI Act is an enabling Act, and s 122(2) states that a person may be represented before the Tribunal by a lawyer on an appeal on a question of law under s 119, which is what this appeal is. The respondent therefore has, under the RTI Act s 122(2), a right to be legally represented, and does not need the leave of the Tribunal. It follows that the respondent’s application was unnecessary, and should be dismissed.
- [8]It is true that in Underwood v Department of Housing and Public Works & Ors [2013] QCATA 130 the then President of the Tribunal held at [9] that s 122(2) “merely affirms, but does not override, the Tribunal’s discretion under s 43”. The basis of this was that the subsection used the word “may”, whereas s 122(1) used the word “must”. In my view, however, the preferable explanation of the use of the word “may” in s 122(2) is that it deliberately follows the wording of s 43(2)(b)(iii), as is shown by the opening words of the subsection.
- [9]Further, the discretion arises only under s 43(2)(b)(iv), the provision for the Tribunal to grant leave, whereas the earlier paragraphs of s 43(2)(b) obviously refer to situations where the party has a right to be represented before the Tribunal, although the party is not obliged to be represented. This is another reason why the word “may” is appropriate. Finally, in view of the terms of s 122(1), there was no need for s 122(2) to be in the RTI Act if the ordinary approach under s 43(2)(b) was to be followed.
- [10]Therefore, with respect, I do not agree with the approach of the then President, and decline to follow the decision in Underwood. Each party in this proceeding has a right to be represented by a lawyer, but does not have to exercise that right if the party chooses not to.
- [11]In the circumstances, and bearing in mind the existence of the recent decision Carlyle v Queensland Law Society [2022] QCAT 208 where the factors relevant to the grant of leave to be legally represented were discussed, I consider that there is no need to consider, on a precautionary basis, whether leave to be legally represented would be appropriate if leave were necessary.
- [12]The respondent’s application must be dismissed. I make the following declaration: under the QCAT Act s 60(1)(b), the parties have a right to legal representation in this proceeding pursuant to the RTI Act s 122(2). The respondent did not seek an order for costs of this application, and in substance the appellant has been unsuccessful, so there would be no reason to order costs in his favour. The decision of the Appeal Tribunal is therefore as follows:
- Application of the respondent filed 1 March 2023 dismissed.
- Declare that the parties to this proceeding have a right to legal representation in the Appeal Tribunal under the Right to Information Act 2009 (Qld) s 122(2).
- There be no order as to the costs of the application.