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[2019] QCAT 390
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2019-11-26
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
[1] Mr Marino and Mr Howe have adjoining properties on the Gold Coast. Mr Marino says that two Norfolk Island pine trees situated on Mr Howe's land (the trees) have, among other things, caused serious damage to Mr Marino's property.
[2] Mr Marino has commenced proceedings in the tribunal. He seeks orders for the removal of the trees. He also seeks an order that Mr Howe pay compensation for damage caused by the trees.
[3] Mr Howe applied for leave to be legally represented in the proceedings. I refused the application. These are the reasons for my decision.
[4] Parties in tribunal proceedings should represent themselves unless the interests of justice require otherwise.[1] The tribunal may grant leave for a party to be represented. of the (Qld) sets out a number of circumstances that the tribunal may consider as supporting the giving of leave, including that the proceeding is likely to involve complex questions of fact or law and that all of the parties have agreed to the party being represented in the proceeding.
[5] Mr Howe says a number of things in support of his application for leave to be represented:
(a) The parties have, by conduct, agreed to legal representation;
(b) The dispute is one where there are contested issues of fact and issues of law of some complexity;
(c) Mr Howe is a practising barrister and it will be difficult for him to manage his busy legal practice and conduct the proceedings.
(d) Mr Howe will be placed in the inappropriate position of having to be an advocate and a witness in the case.
[6] Mr Marino opposes the application.
[7] Mr Marino is a solicitor. Mr Howe says that Mr Marino has been represented by the law firm of which he is a partner and that all communications on Mr Howe's behalf have been through his solicitors. Mr Marino denies that, by their conduct, the parties have agreed to be legally represented.
[8] A party may choose to retain a solicitor to provide advice and assistance in conducting a tribunal proceeding. Leave of the tribunal is not required for a party to enter into such an arrangement. Leave entitles a party to be represented at tribunal hearings. That there have been communications between the solicitors for the parties does not mean the parties have agreed that each be represented in the proceedings within the meaning of s 43 of the QCAT Act. I am satisfied that Mr Marino has not agreed to the parties being legally represented and that s 43(3)(d) of the QCAT Act has not been engaged.
[9] Mr Howe says that the dispute is complex. He relies upon a letter from his solicitors to Mr Marino's solicitors attached to the Application for a tree dispute.[5] The letter is a detailed response to Mr Marino's complaints about the trees. Mr Marino makes a number of complaints: the branches of the trees overhang his land; the trees deposit leaf litter on his land and property on his land; the trees obstruct sunlight to the dwelling on the land; the roots of the trees have damaged property on the land.
[10] I am not satisfied that the proceeding is likely to involve complex questions of fact or law. Complaints of leaf litter, overhanging branches, obstruction of sunlight and interference cause by tree roots are not uncommon in tree disputes. The tribunal will be required to decide whether it is appropriate to make orders in relation to the trees necessary to prevent serious injury; or to remedy, restrain or prevent serious damage to Mr Marino's land or any property on the land, or substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Marino's land.
[11] Mr Howe refers to 'significant issues' concerning the species of the trees and the value of the species as an iconic landscape feature. The tribunal must consider a number of matters in deciding an application for an order under s 66 of the Neighbourhood Disputes (Dividing Fences and Trees) Act (Qld) 2011 (ND Act).[6] Those matters include the 'significant issues' identified by Mr Howe.[7] There is nothing complex about those matters. Mr Howe refers to the trees being assessable vegetation in accordance with the Gold Coast City Plan. Just how this contributes to the factual or legal complexity of the matter is not clear. The tribunal may make an order for a person to carry out work on a tree despite any local law if satisfied there is a genuine dispute about the tree.[8]
[12] Whilst it is noted that the parties have not yet filed their statements of evidence, attached to the Application for a tree dispute are a number of reports including a report by an arborist.[9] The report identifies a number of issues in relation to the trees including the depositing of leaf litter, falling branches and root encroachment. There is nothing in the report pointing to any degree of complexity of fact or law relating to the dispute. Indeed the issues relating to the trees appear, at least on the face of the report, to be relatively confined and straightforward.
[13] Mr Howe says it may be that the Gold Coast City Council should be made a party to the proceedings. The tribunal may order the joinder of a person as a party if the person should be bound by or have the benefit of a decision of the tribunal in the proceeding, or the person's interests may be affected by the proceeding, or it is otherwise desirable that the person be joined as a party.[10] A government authority may appear in a proceeding if carrying out work on a tree may require the consent or authorisation of the authority.[11] From time to time local government authorities do appear in tree dispute proceedings. On what basis Mr Howe says that it would be appropriate to join the Council as a party is not made clear in his submissions nor do the submissions address in what capacity the Council might be joined. I do not consider the submission compelling.
[14] Mr Howe says that as a result of his busy practice as a barrister he will find it difficult to personally conduct the current litigation. That may be so, but Mr Howe's position is no different to the many parties involved in litigation in the tribunal whose personal circumstances, including as employed and self-employed persons, require some degree of personal compromise and inconvenience in conducting proceedings.
[15] Mr Howe places some reliance upon the decision of the High Court in Bell Lawyers Pty Ltd v Pentelow.[12] In Bell the High Court held that a solicitor or barrister who represents themselves in litigation may not recover his or her professional costs of acting in the litigation (commonly referred to as 'the Chorley exception'). The High Court referred to the Chorley exception as conferring a privilege on solicitors in relation to the conduct of litigation which is inconsistent with the equality of all persons before the law.
[16] Mr Howe refers specifically to the following passage from the joint judgment of the majority in Bell:
Importantly, the view that solicitors should be encouraged to act for themselves is contrary to the modern orthodoxy that it is undesirable, as a matter of professional ethics, for a solicitor to act for himself or herself in litigation.
[17] The following passage from the judgment of Brereton J in McIlraith v Ilkin (Costs) was referred to:
Where a solicitor represents a litigant, the court is entitled to expect the litigant to be impartially and independently advised by an officer of the court. Indeed, where the court concludes that a solicitor is not in a position to give impartial and independent advice to a party, because of the solicitor's own interest in the outcome, the court has restrained the solicitor from continuing to act ... Where a solicitor acts for himself or herself there cannot be independent and impartial advice, and this is in principle a strong reason for holding that a solicitor litigant should not be entitled to costs of acting for him or herself.[13]
[18] Where a legal practitioner represents themselves, any adverse outcome flowing from a lack of independence which negatively influences the practitioner's judgment will generally fall on the practitioner in the form of a personal loss of some sort. But there is another more serious issue raised when a legal practitioner represents himself or herself - whether any potential for loss of independence and objectivity may lead to an adverse impact on professional standards. The case law is replete with examples of legal practitioners who have drawn criticism and, in some cases, censure in circumstances where the practitioner has acted for himself or herself.
[19] Bell and McIlraith involved the recovery of costs by self-represented solicitors. It is readily apparent that ethical issues may potentially arise where a self-represented practitioner/litigant seeks to recover their costs. In tree dispute proceedings in the tribunal, the presumption is that each party will bear their own costs unless the interests of justice require the tribunal to order otherwise.[14]
[20] Mr Howe emphasises the inappropriateness and undesirability of legal practitioners 'to be in proceedings and acting both as advocates and witnesses and which would involve conferring with a number of witnesses both lay and expert.' It is necessary to say a number of things about this submission.
[21] As was observed in McIlraith, '(w)here a solicitor acts for himself or herself there cannot be independent and impartial advice...'.[15] Nevertheless a legal practitioner, be they a solicitor or a barrister, is subject to a range of duties including, but not limited to: the duty of candid disclosure to the court or tribunal; the duty not to abuse the process of the court or tribunal; the duty not to corrupt the administration of justice; the duty to conduct matters efficiently and expeditiously. These duties can be found, in one form or another, in the Australian Solicitors Conduct Rules and the Barristers' Conduct Rules. Both the applicant and the respondent, as Australian legal practitioners, are bound by these legal profession rules.[16]
[22] There is no prohibition to be found in the legal profession rules on legal practitioners representing themselves in proceedings. The statement by the High Court in Bell that it is undesirable, as a matter of professional ethics, for a solicitor (or barrister) to act for himself or herself in litigation must, in the present case, cannot be considered without reference to the provisions of the QCAT Act. As has been observed, the starting point in tribunal proceedings is that parties should represent themselves unless the interests of justice require otherwise. Legal practitioners who are parties in tribunal proceedings are not afforded any special status entitling them to legal representation, nor do I consider the comments in Bell and McIlraith are to be construed as compelling the conclusion that, in considering an application under s 43 of the QCAT Act, the interests of justice require a legal practitioner to be legally represented in tribunal proceedings.
[23] QCAT is, with some limited exceptions, a no costs jurisdiction which largely eschews the formality of court processes and procedures. The tribunal is a forum to which parties, the vast majority of whom are not lawyers, may bring disputes for resolution. The tribunal is given broad powers to ensure that matters are dealt with in accordance with the objects of the Act. The tribunal must also discharge certain specific duties including ensuring that it acts fairly and according to the substantial merits of the case and ensuring that parties understand, among other things, the practices and procedures of the tribunal and the nature of assertions made in proceedings and the legal implications of those assertions.[17] This comprehensive statutory framework ensures that parties are able to bring a dispute before the tribunal and to achieve fair and just outcomes without being legally represented.
[24] Notwithstanding this statutory framework, legal practitioners may generally be considered more capable than others at effectively and efficiently advancing their interests in tribunal proceedings. In advancing those interests, the professional duties owed by legal practitioners are extensive. In my view the parties, in representing themselves, are quite capable of advancing their interests while observing their professional duties and obligations.
[25] In any event legal practitioners who are parties to tribunal proceedings are quite at liberty, in the absence of a grant of leave to be represented, to retain the services of a solicitor to assist them. A prudent practitioner may consider this an appropriate and necessary step. In engaging solicitors, Mr Howe has adopted this course of action.
[26] These reasons should not be construed as support for the proposition that it will never be appropriate for a legal practitioner to be given leave to be legally represented. Nor am I saying that, for legal practitioners who are parties in tribunal proceedings and who seek leave to be represented, the tribunal must have a greater degree of satisfaction that the interests of justice require leave, than may be the case for other parties. Every matter must be determined on its own facts and circumstances.
[27] For the same reasons as I have outlined, I do not consider that the efficient management of the proceedings will be enhanced by the parties being legally represented. In acting consistently with the professional duties to which I have referred, the parties will no doubt act in a manner that will enable the tribunal to achieve the objects of the QCAT Act.[18]
[28] The application is refused.
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act") s 41(1).
[5] Letter McCullough Robertson Lawyers to Hickey Lawyers dated 3 June 2019.
[6] Neighbourhood Disputes (Dividing Fences and Tress) Act 2011 (Qld), s 70(1).
[9] Report Grahame Johnson dated 20 April 2019.
[15] McIlraith v Ilkin (Costs) [2007] NSWSC 1052.
Daniel John Marino
Keith Howe [2019] QCAT 390