Legal representation at QCAT

In introducing the Queensland Civil and Administrative Tribunal Bill 2009, then Attorney-General Cameron Dick said:

“To ensure QCAT remains as informal and as economical as possible, parties will generally represent themselves. However, if the interests of justice or the rules of natural justice require a party to be represented, QCAT will grant leave for the representation.”¹

In its report entitled ‘Review of the Queensland Civil and Administrative Tribunal Act 2009’, the Department of Justice and Attorney-General concluded:²

“There is not sufficient evidence to support a shift to a general ‘as of right’ legal representation for the parties appearing at QCAT. Stakeholder support for this proposal is limited and inconsistent, and it is contrary to the Productivity Commission’s recommendations.”

I note in passing that Queensland Law Society and the Bar Association of Queensland supported ‘as of right’ legal representation at QCAT, along with a 2015 submission from QCAT itself.

The purpose of this article is to set out the provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules) relating to legal representation, and to provide examples of how those provisions have been applied in practice.

When leave is required for legal representation

Section 43(1) states that “the main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise”. This purpose appears to be aligned with the objects set out in s3(b) of the QCAT Act, namely that the tribunal operates in a manner that is “accessible, fair, just, economical, informal and quick”.

Representation ‘as of right’

However, s43(2)(b)(i) to (iii) provides that an ‘as of right’ legal representation exists at QCAT in circumstances where:

• 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.

‘Child’ is defined in Schedule 3 to the QCAT Act to mean an individual under 18.

‘Impaired capacity’ is also defined in Schedule 3 to have the meaning under the Guardianship and Administration Act 2000 (Qld) (GAA Act). ‘Capacity’ is defined in Schedule 4 to the GAA Act as meaning that a person is capable of:

• understanding the nature and effect of decisions about the matter
• freely and voluntarily making decisions about the matter, and
• communicating the decisions in some way.

In Catania v Jolley, the Appeals Tribunal observed:³

“If any of those elements are missing, a person has ‘impaired capacity’ for the matter. Capacity is therefore assessed in the context of a person’s capacity regarding their capacity for decisions about a specific matter. In the context of s43 of the QCAT Act, the question must be whether a person has the capacity to represent themselves in a proceeding before the Tribunal.”

There is no definition of ‘disciplinary action’ in the QCAT Act. However, examples of enabling legislation using the terms disciplinary action or disciplinary matter include:

• the Legal Profession Act 2007 (Qld)
• the Education (Queensland College of Teachers) Act 2005 (Qld)
• the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law Act 2009 (Qld)
• the Local Government Act 2009 (Qld)
• the Racing Integrity Act 2016 (Qld)
• the Property Occupations Act 2014 (Qld)
• the Valuers Registration Act 1992 (Qld)
• the Fire and Rescue Service Act 1990 (Qld)
• the Surveyors Act 2003 (Qld), and
• the Veterinary Surgeons Act 1936 (Qld).

This does not purport to be an exhaustive list, but illustrates that a wide range of disciplinary matters come before QCAT for which leave to be legally represented is not required.

Rules 54, 55 and 56 of the QCAT Rules, respectively, provide that leave is not required for legal representation where:

• all of the officers of a corporation are Australian legal practitioners
• all of the officers of another entity (such as an association, partnership or trust) are Australian legal practitioners, or
• all of the joint applicants are Australian legal practitioners.

Representation with leave

Section 43(2)(a)(iv) provides that in all other circumstances leave is required for a party to be legally represented.

I note that s43(4) places limitations on who can represent a party as follows:

“(4) A party can not be represented in a proceeding by a person—

(a) who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or

(b) who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party.”

Rule 57 of the QCAT Rules provides:

“(1) A person is disqualified from representing a party to a proceeding if—

(a) the person has been the subject of—

(i) a discipline application under the Legal Profession Act 2007; or

(ii) an application equivalent to a discipline application under a corresponding law within the meaning of the Legal Profession Act 2007; and

(b) the person has been, in the proceeding, found guilty of professional misconduct or unsatisfactory professional conduct; and

(c) the president has not made a declaration under subrule (2) about the person.

(2) The president may declare that a person to whom subrule (1) applies is not disqualified from representing a party in a proceeding if the president is satisfied the conduct of the person constituting the misconduct or conduct mentioned in the subrule is not serious enough to disqualify the person from representing the party in the proceeding.”

A search of the case law indicates that no declarations have been made by the President pursuant to rule 57(2).

As this article relates to legal representation before QCAT, I will not address the considerations relating to who might be an appropriate person other than an Australian legal practitioner or government legal officer for the purposes of s43(4)(b). However, I note in passing that Rules 54, 55 and 56 of the QCAT Rules, respectively, make specific provision for whom corporations, other entities and joint applicants may appear through. Section 43(5)(a) of the QCAT Act also requires a representative of a corporation who is not an Australian legal practitioner or government legal officer to provide a certificate of authority.

Factors to be considered in deciding whether to give leave

Section 43(3) of the QCAT Act sets out a list of factors which may be considered in deciding whether to give leave. I will address each of these factors in turn.

The party is a State agency

‘State agency’ is defined in Schedule 3 to the QCAT Act to mean:

• the State, a Minister or a person representing the State
• a government entity within the meaning of the Government Owned Corporations Act 1993 or the chief executive of a government entity
• a local government or a chief executive officer of a local government, or
• a statutory authority or another entity established under an Act or the holder of a statutory office.

Rule 53 of the QCAT Rules provides:

“(1) A State agency may appear in a proceeding through an employee, officer or member of the agency who is authorised by the agency to act for it in the proceeding.

(2) However, the State agency may appear through an Australian legal practitioner or a government legal officer only with the tribunal’s leave.”

The respondent in the tribunal’s review jurisdiction will invariably be a State agency.

In high-volume review jurisdictions, State agencies often have dedicated legal units for the purpose of representing the agency before the tribunal. This reality has been recognised by the tribunal. For example, the following direction has been routinely made in the Queensland Building and Construction Commission list:

“Unless otherwise objected to by the Applicant, in writing, within seven (7) days of receiving these directions, the Queensland Building and Construction Commission has leave to appear through an in-house legal officer at the compulsory conference.”

The proceeding is likely to involve complex questions of fact or law

A matter does not necessarily involve complex questions of fact or law merely because it involves the finding of facts or application of legal principle. All matters before the tribunal are determined by the finding of facts followed by the application of legal principle, but not all matters are complex.

However, if the tribunal considers a matter is of genuine factual or legal complexity and the most economical and just way of proceeding is to have the assistance of a practitioner, the interests of justice may make it appropriate to give leave for a party to be legally represented.

It is important that practitioners should not seek to confect complexity where none exists for the purposes of obtaining leave. In Lida Build Pty Ltd v Miller, Justice Wilson gave a salutary warning in this regard:⁴

“It follows that nothing in the submissions delivered for Lida Build is persuasive that the learned member was wrong to conclude that the questions which might come before this Tribunal for adjudication ‘…necessitate input from a legal representative’. Subsequent submissions have the unfortunate effect of raising the spectre of the converse – that, in fact, the presence of lawyers may carry a risk of adding needless complexity, and much greater delay and cost, to what is essentially a simple dispute about the construction of a swimming pool and its surrounds.”

Another party to the proceeding is represented in the proceeding

Where one party has been given leave to be legally represented, it would usually be the case that a comparable grant would be given to the other party or parties.

All of the parties have agreed to the party being represented in the proceeding

It would be unusual for an application for leave to be represented to be refused where all of the parties consent to the application.

Other issues

The list of factors in s43(3) is not exhaustive. The tribunal has also considered other factors, such as whether it would be assisted by submissions addressing the relevant issues which may not be able to be provided unless representation is given. For example, in Cello Court Pty Ltd v Body Corporate for Cello Court CTS 42339, the Appeals Tribunal observed:⁵

“The Body Corporate submits, and I accept, that the factors set out in s43 of the QCAT Act are not an exhaustive list of factors. Other matters which the Body Corporate submits are relevant in considering the interests of justice include:

• that representation by solicitors would assist the Appeal Tribunal with receiving cogent submissions, given the complexity;
• it would be disadvantaged if it is not represented, as its members are lay persons who are unlikely to provide helpful submissions;

…

I am satisfied that, having regard to the questions of law to be considered by the Appeal Tribunal in determining the proceeding, it is in the interests of justice that it is assisted by submissions that address the relevant issues. Both parties lack confidence in their ability to provide them unless leave is granted.”

Making an application for leave

An application for leave to be represented is made on Form 56.

It is important that practitioners lodge an application for leave to be represented. As the tribunal observed in Sharma v Woolfson:⁶

“The Tribunal has not had the benefit of fully considering the relevant issues in the way they are in intended to be considered i.e. by an application to be granted leave to be legally represented. The Sharmas and their solicitors have ignored the statutory regime whereby there is an opportunity for people to formally file for leave to be legally represented. This regime provides an opportunity for the other parties to make applications in response to an application for legal representation. Without this there is a denial of due process.”

A failure to give the other party or parties an opportunity to make submissions in response to an application for leave may lead to the leave being set aside on appeal.⁷

It is worth noting that even if leave is not given for a party to be represented at QCAT, they may still seek advice from a practitioner regarding their rights and obtain assistance with the drafting of any documents necessary for the proceeding.

Tribunal-appointed representatives

Section 43(6) gives the tribunal power to appoint a person to represent an unrepresented party.

This power is rarely exercised. In Underwood v Department of Housing and Public Works & Ors, Justice Wilson observed:⁸

“The Tribunal is, at the highest, empowered under the subsection to determine whether someone will be appointed and, if so, who that person is and the terms of their appointment. The latter connotes authority to include a term that the Tribunal pay the appointee for performing their function.”

A search of the case law indicates that there has only been one published example of an appointment having been made under s43(6). In Nursing & Midwifery Board of Australia v Feeney,⁹ Judge Kingham appointed QPILCH (now known as LawRight), which was a not-for-profit organisation offering advice and referral services for parties representing themselves in the tribunal.

For completeness, I note that a similar power is contained in s125 of the GAA Act, which empowers the tribunal to appoint a representative to represent the adult’s views, wishes and interests. An appointed representative must:

• have regard to any expressed or demonstrated views, wishes and preferences of the adult
• present the adult’s views, wishes and preferences to QCAT to the greatest extent practicable, and
• promote and safeguard the adult’s rights, interests and opportunities.

In CN, the tribunal noted that such appointments were common practice for applications for special health care.¹⁰

Personal costs orders against legal representatives

Section 103 of the QCAT Act provides that the tribunal may award costs against the representative of a party to a proceeding if the representative (rather than the party) is responsible for unnecessarily disadvantaging another party to the proceeding.¹¹ The tribunal must give the representative a reasonable opportunity to be heard before making such an order.

In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No.2), Justice Wilson observed:¹²

“The discretion to award costs against representatives will usually be exercised sparingly, having regard to all the circumstances of the particular case. Costs have been awarded where advocates acted without proper authority in commencing proceedings, and where they should have known the proceedings were hopeless and their continuation was akin to an abuse of process.”

Conclusion

In its inquiry report into Access to Justice Arrangements,the Productivity Commission made the following comments on the use of legal representation in tribunals and the problem of ‘creeping legalism’ in tribunals:¹³

“The use of legal representation is thought to be contributing to this problem, with some representatives conducting themselves as if they were in court. Some stakeholders have expressed concerns that lawyers are also bringing an adversarial tone to proceedings.

Where legal representation is used it increases the costs incurred by parties.”

In this regard, s28 of the QCAT Act provides (amongst other things) that the tribunal:

• is not bound by the rules of evidence, or any practices or procedures applying to courts of record, and
• must act with as little formality and technicality and with as much speed a proper consideration of the matters before the tribunal permits.

In my view, practitioners are able to offer considerable assistance to the tTribunal, particularly in complex cases or where a party has impaired capacity. Their presence is often very welcome, and there have been circumstances in which I have personally been very grateful for the assistance they have provided.

Consistent with s28, I would observe that practitioners add the most value to QCAT proceedings where they encourage the early and economical resolution of a dispute, and where their presence does not serve to complicate an otherwise uncomplicated proceeding with technical arguments about evidence and procedure.

Glen Cranwell is a full-time member of the Queensland Civil and Administrative Tribunal. The views expressed are those of the author, and not those of the tribunal.

Footnotes
¹ Queensland Parliament, Hansard, 19 May 2009, p351.
² Department of Justice and Attorney-General, ‘Review of the Queensland Civil and Administrative Tribunal Act 2009’, Report, July 2018, p32.
³ [2020] QCAT 109, [19].
⁴ [2010] QCATA 17, [13].
⁵ [2021] QCATA 62, [22] and [24].
⁶ [2020] QCAT 271, [66].
⁷ Nuttell Pty Ltd v The Ashtay Group Pty Ltd [2015] QCATA 16.
⁸ [2013] QCATA 130, [23].
⁹ [2011] QCAT 261.
¹⁰ CN [2012] QCAT 11, [8].
¹¹ In relation to unnecessarily disadvantaging another party, see s48(1) of the QCAT Act.
¹² [2010] QCAT 412, [48] (footnote omitted).
¹³ Productivity Commission inquiry report, ‘Access to Justice Arrangements’, No.72, 5 September 2014, p14.