Proctor : May 2017
24 PROCTOR | May 2017 To be legally represented in proceedings before QCAT, parties must generally obtain the leave of the tribunal. I say ‘generally’ because, while leave is required in most cases, relevant enabling legislation may entitle parties to be represented without requiring permission. For example, section 72 of the Tax Administration Act 2001 (which applies to cases involving review of decisions of the Office of State Revenue) states that parties may be represented by a lawyer. In deciding whether to give a party leave to be represented in a proceeding, section 43(3) of the QCAT Act provides that the tribunal may consider the following as circumstances supporting the giving of leave: a. if the party is a state agency b. if the proceeding is likely to involve complex questions of fact or law c. if another party to the proceeding is represented in the proceeding d. if all of the parties have agreed to the party being represented in the proceeding. Accordingly, when making an application for leave to be represented, the tribunal needs to be satisfied that legal representation is in the interests of justice. It is not as simple as just filing the application and assuming, based on the automatic entitlement to legal representation in the courts, that leave will be granted. Costs don’t always follow the cause An important way in which QCAT differs from the courts is in regard to legal costs. Section 100 of the QCAT Act relevantly provides: “Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.” The effect of section 100 is that, as a starting point, parties to proceedings in QCAT are expected to bear their own costs, regardless of the outcome. There are, as the section suggests, exceptions to this. A particular piece of enabling legislation may change the position in relation to costs. For example, for proceedings under the Queensland Building and Construction Commission Act 1991, section 77 of that Act gives QCAT the power to award costs. The QCAT Act itself contains exceptions to the general position in section 100. For example, there is a power to award costs when an offer is made and rejected and the rejecting party does not receive a more favourable outcome at the hearing of the matter. Also, (and perhaps most importantly) section 102 of the QCAT Act enables the tribunal to award costs if it is in the interests of justice to make a costs order. In considering whether to make such an order, the tribunal may have regard to: a. whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding b. the nature and complexity of the dispute the subject of the proceeding c. the relevant strengths of the claims made by each of the parties to the proceeding d. for a proceeding for the review of a reviewable decision: i. whether the applicant was afforded natural justice by the decision-maker for the decision, and ii. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits e. the financial circumstances of the parties to the proceeding f. anything else the tribunal the considers relevant. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No.2)  QCAT 412, former QCAT President Justice Wilson provided a useful discussion on costs in QCAT and the circumstances in which it will be in the interests of justice to make a costs order. It is important to note that while the starting position is that parties bear their own costs in proceedings before the tribunal, costs orders are not a rarity in QCAT and ECLs should not make the mistake of advising their clients that there are no cost implications in tribunal proceedings. Evidence before QCAT Section 28 of the QCAT Act details how the tribunal is to conduct proceedings generally. In contrast to the position in the courts, this section provides that the tribunal: “Is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedure.” This section also states that the tribunal may “inform itself in any way it considers appropriate”. A trap for ECLs is to form the (mistaken) view that, because the tribunal is not bound by the rules of evidence, applications can be made with little or insufficient evidence demonstrating the applicant’s entitlement to the relief sought. While the tribunal is not bound by the strict and technical rules of evidence that apply in the courts, it is nonetheless required to make decisions based on the best evidence. This of course accords with the tribunal’s duty in section 28 to “act fairly and according to the substantial merits of the case” and to “observe the rules of natural justice”. Accordingly, if a client comes to you on a particular matter that could be brought in the Magistrates Court or in QCAT, do not assume that the prospects of success are automatically greater simply because of the wording of section 28. If the evidence available in your client’s case is such that you wouldn’t commence proceedings in the Magistrates Court for fear of an adverse cost order, it really shouldn’t be brought in QCAT either. Compulsory conferences are... compulsory Section 4 of the QCAT Act lists how the tribunal is to achieve those objectives in section 3. These functions include (but are not limited to) requirements to: “Encourage the early and economical resolution of disputes before the Tribunal, including, if appropriate, through alternative dispute resolution processes. “Ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick and is consistent with achieving justice.” QCAT places a strong emphasis on alternative dispute resolution (ADR). Prior to a matter proceeding to a hearing, parties will generally be required to participate in a compulsory conference (or a mediation in the context of the minor civil dispute jurisdiction) in which a tribunal member assists the parties in resolving their dispute. It is not the purpose of this article to explain the benefits of ADR and the role it plays in resolving disputes early and minimising parties’ costs; it suffices to say that these attributes assist QCAT in achieving its objectives. Compulsory conferences are, as the name suggests, compulsory. To many this will no doubt sound glaringly obvious, however, I have had clients advise that they would like to elect to not participate in the process. If a party does not attend, the conference may proceed in that party’s absence and the tribunal may make a decision adverse to the absent party, including orders on costs.