Beck v Rowan[2018] QCAT 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   In this matter, a non-party, Recreational Aviation Australia Inc (RAAus), applies to the tribunal for an order to be made against one or more of the parties to the proceedings for reimbursement of legal fees and internal administrative costs that it incurred in complying with a notice to produce documents issued by the tribunal.
2. [2]
   In complying with the notice, RAAus incurred internal administrative costs of $5,729.65 and legal costs of $5,532.07, largely it seems, because it objected to some of the disclosure on the grounds of legal professional privilege and public interest immunity.
3. [3]
   Since there are two provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’) empowering the tribunal to issue a notice to produce to a third party, with different criteria on the question of costs, it is necessary to decide under which provision the notice to produce was issued. Then it is necessary to consider whether there is any jurisdiction to make the order sought.

The relevant statutory provisions for the notice to produce

4. [4]
   The two provisions empowering the tribunal to require a non-party to produce documents are:-

63 Obtaining a document or thing from third parties

1. (1)
   The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing to—

1. (a)
   the tribunal; or

2. (b)
   a party to the proceeding.

2. (2)
   The person in relation to whom the order is made must comply with the order within the period stated in the order.

3. (3)
   However, subsection (2) does not apply to a document or thing, or a part of a document or thing, for which there is a valid claim to privilege from disclosure.

4. (4)
   In making an order on the application of a party, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the document or thing to which the order relates.

5. (5)
   The tribunal may act under this section on the application of a party or on the tribunal’s own initiative.

6. (6)
   The tribunal’s power to act under this section is exercisable only by—

1. (a)
   the tribunal as constituted for the proceeding; or

2. (b)
   a legally qualified member, an adjudicator or the principal registrar.

97 Requiring witness to attend or produce document or thing

1. (1)
   The tribunal may, by written notice, require a person to—

1. (a)
   attend at a stated hearing of a proceeding to give evidence; or

2. (b)
   produce a stated document or other thing to the tribunal.

Note—

See section 214 for consequences of failing to comply with a notice under this subsection.

2. (2)
   The tribunal may give a notice under subsection (1) on the application of a party to a proceeding or on its own initiative.

3. (3)
   A person who is given a notice under subsection (1) is entitled to be paid the fees and allowances prescribed under a regulation or, if no fees and allowances are prescribed, the fees and allowances decided by the tribunal.

4. (4)
   Fees and allowances payable to a person under subsection (3) must be paid—

1. (a)
   if the person was given the notice on the application of a party to the proceeding—by the party; or

2. (b)
   otherwise—by all of the parties in the proportions decided by the tribunal.

5. (5)
   The fees and allowances must be paid at the time prescribed under a regulation.

5. [5]
   The two provisions clearly originate from court rules which achieved two quite different things.  Under the first, a party could apply for an order of discovery to obtain a list of relevant documents in the power possession or control of another party.  Under the second, non-parties could be compelled to attend the hearing with relevant documents by a subpoena duces tecum. 
6. [6]
   These powers are now given to the tribunal in sections 63 and 97 of the QCAT Act respectively. But the powers have been enlarged to such an extent that the two provisions are effectively duplicates. Under both provisions the tribunal can make orders on an application or of its own initiative, can make orders against non-parties, and can require documents to be given to the tribunal prior to the hearing. The documents can simply be given to the tribunal without the need for a witness to attend.
7. [7]
   Despite this duplication, the costs regime for each provision is quite different.
8. [8]
   Under section 63(4), when making an order under the section on the application of a party, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the document or thing to which the order relates.
9. [9]
   Under section 97(3), there are costs prescribed by the Queensland Civil and Administrative Tribunal Regulation 2009 (Qld) (the ‘QCAT Regulation’). The costs are basically witness expenses, and therefore reflect the origin of the provision. The Regulation prescribes:-

   1. (a)
      fees payable to a non-professional or professional witness attending the hearing;^[1] and
   2. (b)
      conduct money including travel and accommodation expenses, payable when the notice is given or a reasonable time before compliance.^[2]

Under which provision was the notice to produce issued?

10. [10]
    The application for a notice to produce against RAAus was made on 13 April 2017 by solicitors then acting for the applicant. The application was made on Form 38. That form is only used for section 97 applications.^[3] An application under section 63 would have been made on Form 40 instead.^[4]
11. [11]
    The application was referred to a senior member for decision. On 18 April 2017 the senior member made an order but the order did not specify whether it was made under section 63 or section 97 and there is nothing on the file to show this one way or the other. The order was in these terms:-

THE TRIBUNAL ORDERS THAT:

1. A Notice to Produce is issued to the Chief Executive Officer, Recreational Aviation Australia Inc. to produce to the Tribunal copies of all documents about the telephone complaints received by Recreational Aviation Australia Inc. concerning member Jennifer Beck in 2015 and all documents about investigations conducted by Recreational Aviation Australia Inc. into the complaints and about the outcome of any such investigation by:

4:00pm on 16 May 2017

2. Unless otherwise ordered, the parties have leave to access the produced documents and to take copies solely for use in this proceeding.

12. [12]
    In accordance with the order, the tribunal Registry prepared a notice to produce and sent that to RAAus. That notice to produce was issued under section 63 and not under section 97. That can be seen from the notice itself, which refers to section 63. A closely similar form is used for a section 97 notice to produce but that form refers to section 97.
13. [13]
    It seems to me that I need to approach the question under which provision the notice to produce was issued objectively. Under that test, the provision that the senior member thought she was relying on, even it could be ascertained, is irrelevant. Since the applicant for the order could have applied for exactly the same order either on Form 38 (under section 97) or on Form 40 (under section 63) and there is nothing to show that there was any conscious decision about this, the most important document showing the provision under which the tribunal issued the notice is the notice to produce itself. Since that stated on its face that it was issued under section 63, I find as a fact that the notice to produce was issued under section 63.

Under what provision can RAAus be awarded its costs?

14. [14]
    This is important because the tribunal’s jurisdiction arises only from statute – the tribunal has no inherent jurisdiction. 
15. [15]
    The tribunal’s power to award costs is in sections 102 to 105 of the QCAT Act. But RAAus cannot seek costs under any of these sections. That is because none of them apply to a non-party.^[5] 
16. [16]
    There is also nothing in the Anti-Discrimination Act 1991 (Qld) under which these proceedings were referred to the tribunal which would permit the tribunal to award costs in favour of a non-party.

Can costs be awarded under section 63?

17. [17]
    Under section 63(4), in making an order on the application of a party, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the document to which the order relates. It seems arguable that under this provision the tribunal might be able to make the order sought by RAAus.
18. [18]
    On behalf of Ms Beck however, Hall Payne Lawyers submit that section 63(4) requires the tribunal to consider making a costs order when making the order under section 63, and any power to do so only exists when making the order. There is no power to make an order for costs afterwards. They submit further that, in this matter, the question of costs must have been considered by the senior member because section 63(4) requires this to happen. Therefore after the senior member’s order of 18 April 2017 and the notice to produce, the tribunal was functus officio.
19. [19]
    There is no doubt that where there is an application, section 63(4) requires the question of costs to be considered at the same time as the order is considered. This is the result of the words ‘in making an order’ in section 63(4). This was also the view of Member Ryan in Coral Homes QLD Pty Ltd/as Coral Homes Pty Ltd v Queensland Building Services Authority (now Queensland Building and Construction Commission) [2014] QCAT 093, [33].
20. [20]
    This has also been the approach of the tribunal in three reported cases. It was held by Senior Member Stilgoe in Smith v Queensland Building Services Authority [2011] QCAT 66 and in Kljaic v Queensland Building Services Authority [2011] QCAT 87 that applications for production were premature when they were made without ascertaining beforehand the cost of producing the documents. The cost was known in Campaigntrack Victoria Pty Ltd v Gannon [2017] QCAT 272 where Senior Member Brown made an order for production conditional upon payment of the cost of producing the documents.
21. [21]
    In Smith, Senior Member Stilgoe also expressed the view that such applications should not be made without a party having first exhausted all other means of obtaining the documents. This view was recently taken up by Member Cranwell in Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 460 who refused an application for production because no prior approach had been made to the third party to see if they were prepared to release the documents voluntarily, nor had a right to information request been made. The same approach was taken by Member Paratz in Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General and others [2016] QCAT 118.
22. [22]
    It can be seen therefore that the tribunal will usually not entertain an application for production from a non-party unless there has been some prior approach to that third party to see if the production can be achieved voluntarily. As a matter of practicality, the party seeking the documents can, at that time, ascertain the cost of obtaining the documents concerned, so that the tribunal can carry out its obligation to consider this in section 63(4). Requiring such prior contact with the non-party is sensible because it might avoid the need for an application. It also ensures that the applicant for the order is aware of the costs involved, and will not be surprised by the non-party’s costs.  The operation of section 63(4) therefore assists towards the objects of the QCAT Act by ensuring a party’s proper understanding and regard,^[6] and for the tribunal to deal with matters in a way which is fair, just and economical,^[7] and for the tribunal to ensure proceedings are conducted in a way which minimises costs to the parties.^[8]  
23. [23]
    It is sensible, therefore, for section 63(4) to require the tribunal to consider costs when the order is made. There is no reason as a matter of practicality or to achieve any other statutory purpose, to regard the power to award costs contained in section 63(4) as exercisable at any other time. It follows that where a notice to produce is issued on the application of a party to the proceeding, there is only one opportunity under section 63(4) for the costs of the non-party to be considered. That is when the order is made.
24. [24]
    This also means, as Hall Payne have submitted, that the tribunal should be regarded as having already considered the question of the costs of RAAus when the order was made on 18 April 2017 because section 63(4) requires this to happen. Under the presumption of regularity it may be assumed that this was done, unless the contrary is proved.^[9] On that day, unlike in Campaigntrack, no costs order was made. That is the determination of the tribunal on the matter. I agree therefore that the tribunal is functus officio on the question of costs. 

Conclusion

25. [25]
    I conclude therefore that the tribunal has no jurisdiction to hear and determine the application by RAAus that one or more party reimburses it for its outlay in complying with the notice to produce.