Murphy v Queensland Building and Construction Commission
[2018] QCAT 11
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- Unreported Judgment
- Murphy v Queensland Building and Construction Commission[2018] QCAT 11
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Murphy v Queensland Building and Construction Commission[2018] QCAT 11
Murphy v Queensland Building and Construction Commission[2018] QCAT 11
CITATION: | Murphy & Ors v Queensland Building and Construction Commission [2018] QCAT 11 |
PARTIES: | John Geoffrey Murphy JM Kelly Builders Pty Ltd Kawana Joinery Co Pty Ltd Burns and Twigg Pty Ltd Bpm Cowlick Pty Ltd (Applicants) v Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBERS: | OCR099-16; OCR100-16; OCR101-16; OCR102-16; OCR103-16; OCR104-16; OCR105-16; OCR106-16; OCR107-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
DELIVERED ON: | 17 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – review proceedings – application for directions – whether the respondent is required to specify parts of the applicant’s own diary notes sought to be relied upon by the respondent, the significance of each part identified and identify what part of the original decision-maker’s Reasons the part of the diary note is said to relate to and how – whether required to afford natural justice – whether required under model litigant principles – whether required to identify relevance and significance as a pre-hearing step as distinct from during the hearing Queensland Building and Construction Commission Act (Qld) 1991, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28, s 62 Burke v LFOT Pty Ltd (2002) 209 CLR 282 Kehl v Board of Engineers [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Premier Building & Consulting Pty Ltd v Spotless Group Ltd (no 12) [2007] VSC 377 Queensland Building and Construction Commission v Mudri [2015] QCATA 78 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 |
APPEARANCES: |
|
APPLICANTS: | John Geoffrey Murphy JM Kelly Builders Pty Ltd Kawana Joinery Co Pty Ltd Burns and Twigg Pty Ltd Bpm Cowlick Pty Ltd |
RESPONDENT: | Queensland Building and Construction Commission |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES: |
|
APPLICANTS: | represented by Tom Sullivan QC and Edward Goodwin of Counsel instructed by Cooper Grace Ward |
RESPONDENT: | represented by Richard Schulte of Counsel |
REASONS FOR DECISION
- [1]Mr Murphy is seeking review of a decision of the Queensland Building and Construction Commission (QBCC) that he is an excluded individual for the purposes of the Queensland Building and Construction Commission Act (Qld) 1991 (QBCC Act). Essentially, the QBCC found that Mr Murphy was an influential person for a construction company[1] that went into liquidation, either at that time[2] or within one year immediately before it did so.
- [2]Schedule 2 of the QBCC Act defines an ‘influential person’ for a company to mean:
an individual, other than a director or secretary of the company, who is in a position to control or substantially influence the conduct of the company’s affairs, including, for example, a shareholder with a significant shareholding, a financier or a senior employee.
- [3]Mr Murphy’s father was the sole director of the relevant construction company at the time it went into liquidation. He was also the sole director of each of the Applicant companies until shortly after the appointment of the liquidators, at which time Mr Murphy was appointed director of each of them. Mr Murphy’s father has since resigned as a director of each of the Applicant companies but has been appointed as a consultant. Mr Murphy’s father did not challenge the QBCC’s decision that he is an excluded individual.
- [4]The Applicant companies are seeking review of decisions of the QBCC that they are excluded companies. Issues for determination include whether they are excluded companies by virtue of Mr Murphy, being a director, which involves a consideration of whether he is an excluded individual and whether Mr Murphy’s father, an excluded individual, remains an influential person.
- [5]The review applications are all to be heard together. The final hearing is currently scheduled for five days commencing on 26 February 2018.
- [6]The QBCC filed its statement of reasons and relevant documents under section 21(2) of the QCAT Act on 21 September 2016. The Applicants disclosed various documents pursuant to a consent order dated 3 August 2017. The QBCC filed a further supplementary bundle of relevant documents in October 2017, being documents disclosed by the Applicants pursuant to the consent order. The further supplementary bundle of documents contains a complete copy of Mr Murphy’s handwritten diary notes for a period of 19 months, which extend to hundreds of pages.
- [7]The Applicants originally sought directions that the QBCC identify in writing:
- each aspect of the diary notes that it intends to rely on in the proceedings; and
- the significance of each aspect of the diary notes that it intends to rely on in the proceedings.
- [8]The Applicants point to the volume of the diary notes and their ‘quality’.[3] They contend that it is not possible to identify the relevance and significance placed by the QBCC and identify which parts of the diary notes will be relied upon by the QBCC and therefore they are being denied a reasonable opportunity to respond to the evidence.
- [9]
- [10]Subsequent to the application for directions being filed but before the Applicants’ written submissions in support were filed[5], the QBCC have identified that diary entries on 125 dates between January 2016 and May 2017 are considered relevant to the issue of whether either Mr Murphy or his father can be categorised as influential persons. This is a significant step to ensure fairness to Mr Murphy and minimise surprise.
- [11]The Applicants now seek directions that the QBCC:
- identify with specificity the part of each diary note on the identified dates the QBCC seeks to rely upon;
- identify the significance of each part of the specified diary note on the identified dates and identify what part of the Reasons the part of the diary note is said to relate to and how.
- [12]The second limb of the latter request for directions and the first principal reason relied upon as to why the directions should be made, with respect, misconceive the nature of these proceedings. The request is akin to a request for further and better particulars of the Reasons or interrogatories.
- [13]The first principal reason relied upon submits that the QBCC should already know the parts of the diary notes which it relies upon to support which aspects of its decision because it has identified entries it considers relevant.
- [14]These review applications are merits reviews. The purpose of the review is to produce the correct and preferable decision following a fresh hearing on the merits.[6] The review is not in the nature of a reconsideration of the Reasons. The QCAT Practice Direction in relation to the conduct of review hearings[7] makes it clear that the decision maker is not to give evidence nor be cross-examined about why the decision was made.
- [15]The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return it to the QBCC with or without directions.[8]
- [16]There is no presumption that the decision maker’s decision is correct.[9] The Tribunal is to weigh the evidence before it, whether or not the evidence was before the original decision maker.
- [17]The Tribunal and the Appeal Tribunal have previously accepted that an applicant in review proceedings does not bear an onus of proof, which would apply in civil proceedings. An applicant does not need to show that the matters contended are more probable than not but the Tribunal must be satisfied that:
the provision under consideration can be invoked on the information or material before it.[10]
- [18]The QBCC has an obligation to use its best endeavours to assist the Tribunal and is required to provide a copy of any document in its possession or control that may be relevant to the tribunal’s review of the decision. There is nothing in section 21 which requires the QBCC to identify a part of a document that ‘may be relevant’ nor identify how it relates to the Reasons as a pre-hearing step.
- [19]The QBCC, as a state agency, is required to conduct proceedings as a model litigant by adhering to principles of fairness but also firmness. The later requires the appropriate testing of claims and acting properly to protect the State’s interest.
- [20]Mr Murphy was the General Manager of the company, which went into liquidation, in the 12 months prior to and including 20 June 2016.[11] Determining whether Mr Murphy was an influential person is inherently likely to require a consideration of a significant body of documentary evidence.
- [21]To the extent that it is said that the documents produced are of poor quality or not legible there is no evidence before me that Mr Murphy does not hold his original diaries. As he is the author of the diary entries, he is best placed to understand what he recorded.
- [22]The identification of 125 dates, although quite a large number, significantly reduces the volume of diary entries to considered. In most instances, the entries on those dates consist of an A4 page or less. There are only a few dates identified where Mr Murphy’s notes for a particular day extend to another page in the diary. In some instances, the date on the page of the continued entry is included in the 125 dates and in a few it is not. It would be of assistance to the Tribunal and, no doubt, the Applicants if the QBCC clarified whether the 125 dates identified relate to the date on the page in the diary or includes entries pertaining to those days by identifying the relevant page numbers in the further supplementary bundle.
- [23]The Applicants point to section 29(1)(a)(ii) of the QCAT Act, which requires that the Tribunal take all reasonable steps to ensure each party understands the nature of the assertions made in the proceedings. They contend that it is a reasonable step to require the QBCC to identify the significance attributable to the parts of the diary notes on the identified dates. The Applicants clearly understand that the QBCC intends to cross-examine Mr Murphy about his diary entries on the identified dates as to the central issues relating to control and influence that he had or his father has on the conduct of the relevant companies’ affairs.
- [24]I am not satisfied that the level of specificity contended for is reasonably required.
- [25]The Applicants submit that it would be of considerable assistance to the Tribunal for it to know at the beginning of the hearing the significance of the large number of handwritten diary notes. They contend that it would make the hearing more efficient. The Applicants also submit that natural justice requires the decision maker to disclose this information 'especially in the absence of pleadings’.
- [26]The Tribunal is not a pleadings jurisdiction. It is required to observe the rules of natural justice[12] but it is not bound by the rules of evidence or any practices or procedures applying to courts other than to the extent adopted.[13] It is required to act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, the enabling Act or the rules and a proper consideration of the matters before the Tribunal permit.[14] In doing so it must balance the interests of the Applicants in knowing the case they are required to meet against the QBCC’s role to test Mr Murphy’s claim that he was not and his father is not each an influential person.
- [27]The QBCC has identified a relatively small proportion of entries in Mr Murphy’s diaries about which the QBCC intends to question Mr Murphy. The central issues in the case are issues relating to control and influence. I am not satisfied that the level of specificity contended for is required to afford Mr Murphy natural justice nor that it is appropriate to require the QBCC to set out its line of cross-examination questioning of a witness in respect of the witness’ own documents. To require the QBCC to set out the level of detail sought would not be to act with little formality and technicality and with speed.
- [28]In support of their contention that the QBCC should be so directed the Applicants refer to comments by their Honours Kirby and Callinan JJ in relation to ‘books of documents’ filed prior to the hearing in Tepko Pty Ltd v Water Board.[15] Their Honours said:
Parties frequently, either together or separately, compile “books of documents”. Although most of these have the potential to be admitted in evidence, often they are defective in form. Many of them are often irrelevant, or their significance is either not recognised or adverted to during the hearing. Their status, as in the case of the letter written by Mr Rhodes, can be ambiguous. Discrimination and economy should be exercised by those who prepare cases in which documentary evidence is likely to be extensive and important. Those who conduct such cases should ensure that what is actually in evidence, and its relevance and significance, are clearly identified.[16]
- [29]The comments are particularly directed at:
- admissibility of documents and whether documents in the bundle during the hearing are marked for identification or admitted into as evidence, where the author of them does not give evidence, as was the case with Mr Rhodes. I am supported in this view by His Honour Callinan J’s comments in Burke v LFOT Pty Ltd[17] where his Honour specifically refers to insufficient regard being had to whether ‘what is tendered, is truly admissible and has in fact been received in evidence’.
- instances where documents in the book of documents are not ‘adverted to during the hearing’.
- [30]His Honour Callinan J was critical of ‘the compilation of volumes of discovered documents and their bulk tender without identification of their relevance and attention to their probative value.’[18]
- [31]The Applicants also drew my attention to comments by His Honour Byrne J in Premier Building & Consulting Pty Ltd v Spotless Group Ltd (no 12)[19] about the evidentiary consequences of bulk tendering of documents. Byrne J noted that the significance of documents tendered could be identified in the course of the trial including in final written or oral addresses.[20]
- [32]The QBCC have submitted that unless required by the Tribunal it is not intending a ‘bulk tender’ of the further supplementary bundle but rather to cross-examine Mr Murphy about his own documents.[21]
- [33]I am not satisfied that their Honours were suggesting that the ‘significance’ of particular documents are required to be identified with such specificity prior to the hearing as distinct from during the hearing including in final submissions.
- [34]I accept that documents to be tendered ought to be relevant and of probative value.
- [35]I note that the directions of 28 September 2017, pursuant to which the further supplementary bundle of documents was filed, also directs that the parties are to file an index to a bundle of agreed documents, which either party seeks to have admitted into evidence by 4:00pm on 13 February 2018. The time for complying with that direction has not yet arisen. Such a direction would potentially permit a subset of the section 21 documents to be identified as those proposed to be tendered. In any event, the QBCC has now identified 125 dates.
- [36]Mr Murphy filed a statement on 15 December 2017 responding to documents filed by the QBCC in supplementary bundles. He expressed a difficulty in responding to the handwritten diary notes contained in the further supplementary bundle. Now that the QBCC has identified the 125 dates and upon the clarification directed, no doubt Mr Murphy will consider whether he wishes to seek leave to file and serve a further statement prior to the hearing.
Footnotes
[1] JM Kelly (Project Builders) Pty Ltd.
[2] A liquidator was appointed on 20 June 2016.
[3] By which I understand them to refer to legibility.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 62.
[5] Filed 19 December 2017.
[6] QCAT Act, s 20(1).
[7] Practice Direction No 3 of 2013.
[8] QCAT Act, s 24(1).
[9] Kehl v Board of Engineers [2010] QCATA 58.
[10] Laidlaw v Queensland Building Services Authority [2010] QCAT 70, at [23]; Queensland Building and Construction Commission v Mudri [2015] QCATA 78.
[11] Statement of agreed facts and issues for determination filed 12 April 2017 at [7].
[12] QCAT Act, s 28(3)(a).
[13] QCAT Act, s 28(3)(b).
[14] QCAT Act, s 28(3)(d).
[15] (2001) 206 CLR 1.
[16] Ibid, [171].
[17] (2002) 209 CLR 282, [133].
[18] Ibid.
[19] [2007] VSC 377.
[20] Ibid, [47].
[21] QBCC submissions filed 21 December 2017, at [8].