Hilliard v Simonds Homes Qld Pty Ltd

[2010] QCAT 396

CITATION: Hilliard v Simonds Homes Qld Pty Ltd [2010] QCAT 396

PARTIES:	Ms Jane Hilliard
v
Simonds Homes Qld Pty Ltd

APPLICATION NUMBER:   BD453-09

MATTER TYPE: Building matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 17 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    Leave for legal representation is refused.

2.    The experts’ conclave is adjourned from 1 September 2010 to 4 October 2010.

3.    The directions hearing on 8 September 2010 is vacated.

4.    The proceeding is listed for a further compulsory conference on 20 October 2010.

CATCHWORDS :  Leave for legal representation – whether complex issues of fact or law – ss 29 and 43 QCAT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Simonds Homes Qld Pty Ltd (“Simonds”) has applied for leave to be legally represented in these proceedings.  The application is opposed by Ms Hilliard.

2. The question of legal representation in a proceeding before QCAT is governed by s 43 of the Queensland Civil and Administrative Tribunal Act 2009. The main purpose of that section is to have the parties represent themselves unless the interests of justice require otherwise (s43 (1)). It specifies a number of circumstances the tribunal may consider as supporting leave being given. Relevantly, for this application, it is:

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

3. Simonds submits that the proceeding involves complex questions of law because:

a)The original amount of the claim is $79,814.33.

In the tribunal’s scheme of things, this is not a significant amount, although it acknowledges that it may be a significant sum to Simonds.

b)Ms Hilliard has now sold the home in question and been directed to file and amended claim and statement of claim. She has not filed an amended claim, rectification is no longer possible and the correct measure of damages is a complex question of law of which Simonds is not aware and not capable of advancing the proper argument.

Granting leave to Simonds will not rectify Mr Hilliard’s pleadings. In fact, it will probably lead to a flurry of correspondence from Simonds to Ms Hilliard that will only serve to confuse the issues to be determined by the tribunal. Pursuant to section 29 of the Act, the tribunal has an obligation to ensure that Ms Hilliard understands the practices and procedures of the tribunal and that both parties understand the nature of the assertions made against them. The resolution of the difficulty raised by the pleadings lies in the hands of the tribunal, not Simonds’ lawyers.

c)Both parties have been directed to file and serve expert reports and the hearing is likely to involve cross-examination of experts.

The tribunal has directed that the experts participate in an expert conclave. If properly conducted, with due regard to Practice Direction 4 of 2009, the need for cross examination of the experts should be greatly reduced, if not eliminated.

d)The current pleadings raise issues as to the meaning and effect of various contract clauses, the relevant building codes and standards and the effect of Ms Hilliard’s failure to comply with her obligations under the contract.

These are common arguments in building disputes and do not, in themselves, automatically raise any argument of complexity. Nothing prevents Simonds from having its lawyers address these issues in written submissions prior to, or at, the hearing.

1. The questions of fact raised by Simonds in its submissions are not complex. They are numerous and, perhaps, frustrating to Simonds but they are not so technical or difficult that a lawyer will necessarily assist.

2. I have already dealt with the submission that Ms Hilliard’s claim lacks particularity.

3. The tribunal notes the submissions about the prior relationship between the parties and the lack of objectivity. If both parties were legally represented, or Simonds’ representatives in the earlier proceedings were not its representatives in the present proceedings, there might be some force in the argument. If the real dispute is relationship based, it is in the interests of both parties to resolve it outside a formal proceeding of this tribunal. The tribunal notes that a compulsory conference has not been successful; perhaps, with the passage of time and further expenditure, the parties are now more inclined to discuss other ways in which this dispute may be resolved.

Variation of directions

1. Simonds also seeks a variation of the directions of 28 July 2010 to provide for the filing of its experts report on a date after 15 October 2010:

   a)    The tribunal has directed an experts’ conclave on 1 September 2010 but Simonds’ expert will be on leave between 13 August and 28 September 2010.

   b)    Because Ms Hilliard has not amended her claim, Simonds wants the opportunity to have a further inspection before the conclave.

2. Simonds says that Ms Hilliard will not be prejudiced by the delay as she has failed to prosecute her claim in accordance with the tribunal’s directions.

3. It is unfortunate that Simonds’ expert cannot attend the nominated date but it is important that the experts’ conclave proceed with the full attention of the parties. The tribunal accepts that the short delay will not prejudice Ms Hilliard.

Conclusion

1. Leave for legal representation is refused.

2. The experts’ conclave is adjourned from 1 September 2010 to 4 October 2010.

3. The directions hearing on 8 September 2010 is vacated.

4. The proceeding is listed for a further compulsory conference on 20 October 2010.