CITATION:	Strampel v Nelson [2012] QCATA 219	

PARTIES:	Albert Strampel
(Applicant/Appellant)	
	v	
	Malcolm Winston Nelson
(Respondent)	

APPLICATION NUMBER:	APL243-12	

MATTER TYPE:	Appeals	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice Alan Wilson, President	

DELIVERED ON:	31 October 2012	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The application for leave to appeal is refused.	

CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Tribunal allowed legal representation at mediation – where right to representation limited to mediation – whether discretion exercised correctly

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 43, 75	

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION
[1]	This is an application for leave to appeal the decision of a Magistrate, sitting as a QCAT Member in the minor civil disputes jurisdiction, to allow the legal representative of the respondent’s insurer to appear on the respondent’s behalf at a mediation.
[2]	For the reasons which follow the application for leave to appeal is premature, and must be refused.
[3]	Mr Strampel began proceedings in QCAT’s minor civil disputes jurisdiction against Mr Nelson because, as he alleged, vehicles driven by each of them collided on 12 November 2009 and were damaged.  Mr Strampel claims the collision was the fault of Mr Nelson, and that he is entitled to recover damages.
[4]	The matter seems to have had an unnecessarily complicated history.  Mr Strampel was not insured.  Mr Nelson, who was insured, denied any liability for Mr Strampel’s damages but made a claim against his own insurer Allianz for the damage to his own vehicle.
[5]	Allianz then commenced proceedings against Mr Strampel in Cairns Magistrates Court.  Mr Strampel lodged a defence and a counterclaim and, later, the Magistrates Court transferred the proceedings to QCAT.  It is not entirely clear what happened then in that proceeding but, in any event, Mr Strampel commenced proceedings in QCAT against Mr Nelson and it is that matter which generates the present application for leave to appeal.
[6]	The Tribunal listed the matter for a mediation under s 75 of the QCAT Act in Cairns on 29 May 2012. 
[7]	Solicitors apparently representing Mr Nelson filed an application for leave for him to be represented at the mediation.  The application was accompanied by an affidavit from the solicitor who said that in fact he was instructed by Allianz, the ‘subrogated insurer’ of Mr Nelson who, by virtue of the laws of subrogation, had no authority to make any decisions and all rights and responsibilities had passed to Allianz under Mr Nelson’s insurance policy with it.  The affidavit also said that Allianz did not have a representative in Cairns and the solicitor sought the Tribunal’s leave to represent Mr Nelson and Allianz at the mediation on 29 May 2012.
[8]	That application was apparently granted by a Magistrate sitting as a QCAT Member.  Mr Strampel sought reasons, which were provided but in very short form.  The reasons record that, by virtue of the laws of subrogation, Mr Nelson has no authority to make decisions regarding the carriage of the matter and all rights are subrogated to Allianz.
[9]	The Appeal Tribunal ordered that the parties exchange written submissions.  Nothing has been received from Allianz (or Mr Nelson).  Mr Strampel says that his solicitors subsequently contacted the Cairns Registry and were informed that if legal representation had been granted for the mediation “…it was automatic for the rest of the proceeding, including the hearing”.
[10]	If Mr Strampel was given that advice, it is plainly wrong.  While s 43 of the QCAT Act only refers to a right to representation with the Tribunal’s leave ‘in a proceeding’ nothing in the provision limits the Tribunal’s power to impose conditions or restrictions upon the nature of the leave including – relevantly, here – a right to representation limited to the mediation.
[11]	It is to be observed that limited representation of that kind was all that was sought by the solicitor for Allianz – so much is apparent from the solicitor’s affidavit sworn 15 May 2012.
[12]	In the circumstances just described, the learned Magistrate’s decision was plainly within the ambit of his discretion and there is no basis for concluding that the discretion was exercised incorrectly.  It is true that the reasons given for it may, with respect, miss the point but that does not mean the result should be set aside.  On any view, there were sound practical reasons why the solicitor should have the limited leave sought, to represent a party at a mediation.
[13]	I note that Mr Strampel has not sought leave to be represented although he says he has solicitors and, certainly, his written submissions are in terms suggesting he is in receipt of legal advice.
[14]	Those submissions make effective and, arguably, correct points about the insurer’s right to represent Mr Nelson, but it is unnecessary to determine them.  That is because, again, all the Tribunal has approved is for legal representation for Mr Nelson at any subsequent mediation in the matter.
[15]	If either party seeks to be legally represented at the hearing further applications to the Tribunal for that purpose will be necessary.
[16]	The application for leave to appeal is refused.