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Litigation and Dispute Resolution Alert: QLS calls for changes to the law governing legal representation in QCAT 22 Feb 2012

The Queensland Law Society has called for changes to the Queensland Civil and Administrative Tribunal Act 2009 to allow legal representation where the amount in dispute in legal proceedings is over $15,000, or where the matter involves the application of statute law or common law principles.

Here, senior associate Anthony Pitt explains why the Law Society has called for these changes, and outlines the current rules related to legal representation for those involved in proceedings in the Queensland Civil and Administrative Tribunal (QCAT).

Key points

  • The Queensland Law Society's deputy president has stated that QCAT's current position on legal representation has the "potential to cause miscarriage of justice on a significant scale".
  • The changes suggested by the Queensland Law Society would mean that parties with a dispute worth more than $15,000, or that involves the application of statute law or common law principles, would be permitted to be represented in the Tribunal by a lawyer.
  • If these changes were to be implemented, we would expect to see Tribunal hearings become more streamlined, with more sophisticated and informed legal arguments that are directed at relevant issues in QCAT proceedings.

The current rules for QCAT proceedings

The changes proposed by the Queensland Law Society are outlined in its Call to Parties - Consultation Draft released late last year. This is one of 11 legal and social 'priority issues' that have been promoted to political parties in the lead up to the State election.

Currently, the Queensland Civil and Administrative Tribunal Act says that both parties must represent themselves in proceedings unless the interests of justice require otherwise, such as where:

  • the party is a child or a person with impaired capacity;
  • the proceeding relates to a disciplinary action;
  • representation is granted by an enabling Act or rules; or
  • the Tribunal has given the party permission to be represented.

In deciding whether to allow a party to have legal representation, the Tribunal may consider whether:

  • the party is a State agency;
  • the proceeding is likely to involve complex questions of fact or law;
  • another party to the proceeding is represented; or
  • all parties have agreed to the person being represented.

QCAT handles more than 30,000 cases each year. Queensland Law Society deputy president Annette Bradfield has stated that the current position on legal representation has the "potential to cause miscarriage of justice on a significant scale".

Mrs Bradfield noted that the Society's pro bono service saw many cases that were essentially a David vs Goliath battle, pointing to an individual home owner's dispute with a builder as an example. She stated:

If you're a home owner and have a dispute with your builder over tens of thousands of dollars, you have to appear before court on your own... the large organisation at the other end of the dispute can only have one representative as well, but it's more than likely this would be the contracts manager, or even a technical specialist who has expertise in these matters.

For more information on your rights and obligations in QCAT proceedings, please contact HopgoodGanim.