Representation by an agent

Rules

The rules include additional requirements that are imposed on a person who proposes to represent somebody else as their agent. The relevant part of the rules is contained in rule 7.7  which provides:

  7.7 Granting of leave for a person to appear by agent

(1) For the purposes of section 63 (3) (a) of the Act, the following information is required to be provided by an agent to the person for whom the agent wishes to appear:

(a) that the person is under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court,

(b) that the person is under a duty to take reasonable steps to resolve or narrow the issues in the proceedings,

(c) that the agent must not, by the agent’s conduct, cause the person to be in breach of a duty referred to in paragraph (a) or (b),

(d) that the Court may take into account any failure to comply with a duty referred to in paragraph (a), (b) or (c) in exercising a discretion with respect to costs,

(e) that the Court may make a costs order against the person in proceedings to which rule 3.7 applies if the Court considers it fair and reasonable in the circumstances and in any other proceedings if the person is unsuccessful,

(f) the knowledge and experience of the agent with respect to the type of matter that is the subject of the proceedings,

(g) whether the agent proposes to charge for the agent’s services and, if so, the agent’s proposed written costs agreement, a written estimate of the likely total of the agent’s charges and the likely disbursements to be incurred by the person.

Note. Section 63 (3) of the Act provides that in determining whether to grant leave for a person to appear by an agent the Court is to consider: (a) whether the agent has provided the person with the information required by the rules, and (b) whether granting leave is in the best interest of the person.  

(2) Before the Court determines whether to grant leave for a person to appear before the Court by an agent, the agent must acknowledge to the Court in writing, unless the Court waives the writing requirement, that the agent has provided the information referred to in subrule (1) to that person.

Situations where a person may wish to be represented by an agent

There may be many situations where a person may wish to be represented by an agent, including:

• applications about neighbours’ trees (made under the Trees (Disputes Between Neighbours) Act 2006) where a person may wish to be represented by their wife or husband when both are the applicants or the tree owners or where parents who are elderly or not fluent in English may wish to be represented by one of their children; and
• development application cases where an applicant may wish to be represented by their architect or town planner who has provided professional assistance to them in the preparation of their development application.

A person may be allowed to be represented by an agent in five of the eight classes of the Land and Environment Court’s jurisdiction. These five classes are:

• Class 1 − environmental, planning and protection appeals.
• Class 2 – tree disputes, local government and miscellaneous appeals.
• Class 3 − valuation, compensation and Aboriginal land claims.
• Class 4 – civil enforcement and judicial review of decisions under planning or environmental laws.
• Class 8 – mining matters.

Classes 5, 6 and 7 comprise the criminal enforcement and appeal jurisdictions of the Court and a person is not able to be represented by an agent in proceedings in these Classes (although they are still able to represent themselves if they do not wish to be represented by a lawyer).

How to be represented by an agent

First, the person who is considering appearing by an agent should ask the proposed agent if they agree to appear for the person as an agent.

Second, the proposed agent needs to comply with the requirements of r 7.7 (1) set out earlier by providing all of the relevant information to the person. This ensures that the person makes an informed decision regarding appointing the agent to appear for them.

Third, the agent needs to write a document acknowledging that the agent has provided all of the relevant information in r 7.7(1) to the person. This document will be provided to the court when leave is sought (see r 7.7(2)). This requirement for the acknowledgment to be in writing can be waived by the Court. However, it is important to note that the Court can only waive the requirement concerning the form in which the acknowledgment takes, that is that it be in writing rather than orally, and not the content of the acknowledgment. The agent must still provide the relevant information to the person so they can make an informed decision and the Court must be satisfied that this has been done (see s 63(3)(a)).

The need for written acknowledgement is more likely to be waived when the matter is a comparatively simple one, such as a tree dispute, and the agent is a family member. In more complex matters and where the agent is operating on a commercial basis (including an arborist, planner or other professional representing a party) good reason will need to be shown why written acknowledgment should not be provided.

Fourth, if after receiving the information the person still wishes to appoint an agent, the person needs to write a document authorising the proposed agent to appear for the person in the proceedings. This document will be provided to the Court when leave is sought (see s 63(1)). For tree disputes, the Court uses a simple authorisation form that will be in the Court’s file when the commissioner hearing the matter attends the site. This form can be filled in by the person at that time and handed to the commissioner.

Fifth, the person or the proposed agent needs to apply to the Court for leave. In deciding whether to grant leave for a person to appear by an agent, the Court must consider:

• whether the agent has provided the person with the information required by rule 7.7(1), and
• whether granting leave is in the best interests of the person (see s 63(3)).

It is preferable that leave is sought as early as possible in the proceedings. A suitable occasion may be when the proceedings first come before the Court for directions to prepare for a hearing. However, it can be done at the hearing when the agent wishes to appear for the person. This commonly occurs with tree disputes. The disadvantage of delaying applying for leave until the hearing is, that if the Court decides that granting leave is not in the best interests of the person and refuses to grant leave to the agent, the person may not be ready to appear for themselves at the hearing thereby disadvantaging their case. The hearing might proceed in any event as scheduled.