Representation in QCAT

This factsheet outlines the rights to legal and other representation before the Queensland Civil and Administrative Tribunal (QCAT).

The following information refers to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

General rules regarding representation

The general rule regarding representation at QCAT is that parties represent themselves unless it would be contrary to the interests of justice (s 43(1) QCAT Act). The rationale for this rule is to avoid unnecessary costs to parties and a legalist approach to proceedings, while ensuring representation is allowed where the interests of justice or natural justice require it.

Under s 43(2) of the QCAT Act, a party to a proceeding may be represented by someone else if:

• The party is a child;
• The party is a person with impaired capacity;
• The proceeding relates to disciplinary action;
• Another Act or the QCAT rules otherwise state that a person may be represented; or
• The party has been given leave by the Tribunal to be represented.

Children and persons with impaired capacity

All parties that are children are entitled to be represented by someone else. A “child” is defined as any individual under the age of 18 years (Schedule 3 QCAT Act).

All parties who are persons with impaired capacity are entitled to be represented by someone else. “Impaired capacity” has the meaning under the GAA Act, which provides that a person has impaired capacity for a matter if they are unable to:

• Understand the nature and effect of decisions about the matter;
• Freely and voluntarily make decisions about the matter; or
• Communicate their decisions in some way (Schedule 4 GAA Act).

Please see our factsheet GAA – Capacity for more information.

Disciplinary action

Where the proceeding relates to disciplinary action, parties are entitled to be represented by someone else. There is no explicit definition of “disciplinary action” in the QCAT Act.

A number of former bodies, which are now subsumed by QCAT, dealt with “disciplinary actions” including:

• Legal Practice Tribunal (see Legal Profession Act 2007);
• Commercial and Consumer Tribunal (see Commercial and Consumer Tribunal Act 2003);
• Teachers Disciplinary Committee (see Education (Queensland College of Teachers) Act 2005);
• A panel of referees convened under the Fire and Rescue Service Act 1990;
• Health Practitioners Tribunal (see Health Practitioners (Professional Standards) Act 1999);
• Legal Practice Tribunal (see Legal Profession Act 2007);
• An appeal tribunal formed under the Local Government Act 1993;
• Nursing Tribunal (see Nursing Act 1992);
• Racing Appeals Tribunal (see Racing Act 2002);
• Surveyors Disciplinary Committee (see Surveyors Act 2003);
• A committee appointed under the Valuers Registration Act 1992;
• Veterinary Tribunal of Queensland (see Veterinary Surgeons Act 1936);* and
• A misconduct tribunal formed under the Misconduct Tribunals Act 1997.*

NB The constituting legislation of the latter two tribunals dealt with disciplinary matters but did not use the term “disciplinary actions”.

Representation with the Tribunal’s leave

The Tribunal may give its permission for a party to be represented. This is at the discretion of the Tribunal; however, in deciding whether to give leave, the Tribunal may consider the circumstances listed at s 43(3) as supporting the giving of leave. These circumstances are:

• 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 in the proceeding; or
• All of the parties have agreed to the party being represented in the proceeding.

See for example, Lida Build Pty Ltd v Miller [2010] QCATA 17, where the President of the Tribunal dismissed the appellant’s application for leave for representation.

A specific form exists to apply for leave to be represented. Please see the QCAT website.

Tribunal appointed representative

The Tribunal may appoint a person to represent an unrepresented party (s 43(6) QCAT Act)

While there is no indication in the Act as to when the Tribunal would do this, it is expected this is done where the interests of justice so require.

Who can be a representative?

Generally speaking, a person can only be represented by a lawyer unless the Tribunal otherwise agrees.

Under s 43(4) of the QCAT Act, a representative of a party to a proceeding must:

• Be an Australian legal practitioner or government legal officer, unless the Tribunal is satisfied the person is an appropriate person to represent the party; and
• Not be disqualified under the QCAT Rules.

An “Australian legal practitioner” is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate: see s 6(1) Legal Profession Act 2007 (Qld).

A “government legal officer” is someone engaged in legal practice for any department or agency of the federal or state governments: see s 12(1) Legal Profession Act 2007 (Qld).

Under Rule 57 of the QCAT Rules, a person is disqualified from representing a party to a proceeding if the person:

• Has been the subject of disciplinary action under the Legal Profession Act 2007 (Qld) or equivalent;
• Was found guilty of professional misconduct or unsatisfactory professional conduct; and
• Has not been declared by the President as not being disqualified from representing a party.

This is intended to be a protective power, ensuring that vulnerable parties are not being represented by a person who does not have the capacity or intention to appropriately and adequately represent the party.

Non-Lawyers

A non-lawyer seeking to represent a party must give the Tribunal a certificate of authority from the party if:

• The party is a corporation; or
• The Tribunal has asked for the certificate (s 43(5) QCAT Act).

The Tribunal must be satisfied that a non-lawyer is an appropriate person to represent the party (s 43(4)(b) QCAT Act). There is no indication under the QCAT Act as to who would be an “appropriate person”, and the case law is yet to provide a determination in this regard: Lewis v Queensland Building Services Authority [2009] QCAT 41.

Representation at compulsory conferences and mediation

Where parties to a proceeding are directed to attend a compulsory conference or mediation, the party will either be directed to attend in person or to be represented by a person with authority to settle the dispute (ss 68(1) and 76(1) QCAT Act).

Support people for parties and witnesses

Interpreters are allowed for parties or witnesses who have difficulty understanding English.

A party or a witness may also be helped by another person to understand the proceedings. For example, the other person may be someone with appropriate cultural or social knowledge and experience (s 44 QCAT Act).

Support persons for parties and witnesses must be allowed in private hearings (s 91(3) QCAT Act). However, the support person must not represent the party and must not be a party to the proceeding (s 91(5) QCAT Act).

Costs against representatives

A person representing a party in a proceeding has the same protection and immunity as a legal practitioner appearing for a party in a proceeding before the Supreme Court (s 237(7) QCAT Act). This includes a presumption of immunity from costs orders except in the case of unconscionable conduct by the representative.

However, under the QCAT Act, 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 (s 103 QCAT Act). Under s 48(1) of the QCAT Act, unnecessarily disadvantaging another party to a proceeding includes:

1. Not complying with a Tribunal order or directions without reasonable excuse;
2. Not complying with the QCAT Act, an enabling Act or the QCAT Rules;
3. Asking for an adjournment as a result of conduct mentioned in (a) or (b);
4. Causing an adjournment;
5. Attempting to deceive another party or the Tribunal;
6. Vexatiously conducting the proceeding; or
7. Failing to attend mediation or a hearing without reasonable excuse.

In such circumstances, the Tribunal may make a costs order requiring the representative to pay a stated amount to the other party as compensation for the unnecessary costs. While QCAT must not award costs against a child, the Tribunal may still order costs against representatives of a child under these provisions (s 101 QCAT Act).