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- Unreported Judgment
Gedoun Constructions Pty Ltd v Agius QCAT 129
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gedoun Constructions Pty Ltd v Agius  QCAT 129
GEDOUN CONSTRUCTIONS PTY LTD
MARK ELLIOT AGIUS
16 May 2019
On the papers
Senior Member Brown
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – GENERAL MATTERS - DOCUMENTS IN POSSESSION OF NON-PARTY – where application for miscellaneous matter seeking order for the production of documents from non-parties – where application made prior to filing of evidence and compulsory conference – whether documents relevant.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 62, s 63;
Uniform Civil Procedure Rules 1999 (Qld), r 242, r 245
Gogolka and Anor v Queensland Building Services Authority  QCAT 308;
Naskam Security Services Pty Ltd v Adarm Security Pty Ltd  QDC 441;
Smith v. O'Leary & Anor  QDC 197;
Uthmann v Ipswich City Council  1 Qd R 435
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The parties entered into a contract for the construction of a house by Gedoun Constructions Pty Ltd (‘Gedoun’) for Mr Agius. Gedoun has commenced proceedings seeking recovery of monies it says are due and owing by Mr Agius. Mr Agius says that the building works did not reach practical completion and that Gedoun is not entitled to the monies claimed. Mr Agius has filed a counter-application claiming liquidated damages and damages for defective building work.
- On 21 February 2019 Mr Agius filed two applications for miscellaneous matters seeking orders for the production of documents:
- (a)An application for the production of documents by the Queensland Police Service (‘the QPS application’); and
- (b)An application for the production of documents by the Queensland Building and Construction Commission (‘the QBCC application’).
- On 12 April 2019 I refused both applications. Following are the reasons for my decision.
- It is appropriate to make a number of observations about the applications:
- (a)Both applications seek orders for the production of documents pursuant to s 62(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), however both applications also purport to rely upon the Right to Information Act 2009 (Qld);
- (b)Both applications state the reasons for seeking the production of documents as being ‘[t]hese documents are essential for me and my QCAT case – BDL308-18 as advised by my solicitor’;
- (c)The QPS application seeks:
- Details of any interview/meeting with any employees, agents or contractors in the employ of or engaged by Gedoun for the purposes of police complaint number … and particularly:
- Communications of any sort with Mr Joe Gedoun; and
- Communications of any sort with any employees, agents and contractors in the employ of or engaged by (a stated firm of solicitors) who assisted Mr Gedoun in his interaction with the QPS in relation to the police complaint;
- A structured outline to be produced by (a stated serving officer in the QPS) and any other persons who assisted in any capacity in relation to the police complaint.
- (d)The QBCC application seeks:
- Audio recordings of five meetings held on various dates between 21 November 2018 and 18 February 2019, attended by the parties, engineers engaged by the parties, and a representative of the QBCC (the meetings);
- Notes taken by the QBCC representative before and after the meetings;
- All communications between those persons in attendance at the meetings, before and after the meetings;
- All QBCC internal communications in relation to the meetings, before and after the meetings.
- As I have observed, Mr Agius relies upon s 62 of the QCAT Act in respect of both applications. Such reliance is misconceived. Section 62 out the powers of the tribunal to make directions including directions for the production of documents inter partes. Mr Agius seeks orders for the production of documents by non-parties. By s 63(1) of the QCAT Act, 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 thing relevant (emphasis added) to the proceeding to produce the document or thing to the tribunal or a party to the proceeding.
- I will proceed on the basis that the applications fall for determination under s 63 of the QCAT Act.
- The tribunal must, in considering making an order under s 63, be satisfied that the document or documents are:
- (a)in the possession or control of the third party; and
- (b)be relevant to the proceeding.
- These requirements, which do not appear in s 62 of the QCAT Act, recognise the potential for abuse of the far reaching power in s 63 to compel non-parties to produce documents. The process for the production of documents in tribunal proceedings is markedly different from the procedure in the courts. Under the Uniform Civil Procedure Rules 1999 (Qld) a party may issue a notice of non-party disclosure to a non-party. The non-party in receipt of the notice disclosure may object to the production of the document. It is for the applicant to then bring an application before the court for an order for disclosure.
- Unlike the process under the UCPR, the QCAT Act does not permit a notice requiring non-party disclosure to issue without the prior approval of the tribunal. The QCAT Act requires an applicant to establish to the satisfaction of the tribunal those matters set out in s 63(1) before an order for the production of a document by a non-party will be made.
- The tribunal considered the application of s 63 in Gogolka and Anor v Queensland Building Services Authority. The tribunal referred to the decision of the Supreme Court in Uthmann v Ipswich City Council (‘Uthmann’) which concerned a writ of non-party discovery under the former Supreme Court Rules. Lee J identified the following general principles in relation to the disclosure of documents by non-parties:
- (1)The procedure cannot be used if its only purpose is to engage in a purely fishing expedition.
- (2)Documents sought must be shown by the issuer of the writ to probably relate to a matter in question in the cause. This “matter” is usually demonstrated by the pleadings and/or particulars but may in some cases be shown in some other way.
- (3)The issuer of a writ must demand production only of specific documents which would be the subject of a subpoena duces tecum at the trial, which he can show are probably in the possession or control of the third party and which probably relate to a matter in question in the cause. If this is not done, the issuer of the writ may be at risk as to costs if an application is brought to the Court by either party.
- (4)The issuer of the writ must formally give sufficient information in writing to enable the third party to make an informed decision. If this is not done, the issuer of the writ may again be at risk as to costs if an application is brought to the Court.
- (5)The third party must independently be satisfied that the documents relate to a matter in question in the cause, before they are produced.
- (6)If the third party produces demanded documents which relate to a matter in question in the cause, the third party is probably protected although this should be clarified by amendment.
- (7)If the third party is of the view that the documents do not relate to a matter in question in the cause or if there is a doubt in relation to it or if there is any other proper basis for objection to produce the documents whether on the ground of privilege or on a discretionary basis or otherwise, the third party should prudently apply to the Court for an order.
- (8)The Court has a discretion whether or not to order production or the extent of it, but if the rules are complied with, an order for production will usually be made having regard to the purpose of the procedure which is to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance fair determination of the issue as early as possible: O'Sullivan v.Herdmans Ltd  1 W.L.R. 1047 at 1055–6; Ansett Transport Industries Ltd v. The Commonwealth; Lebon v. Lake Placid Resort Pty Ltd at 28. If production is ordered, the Court may impose conditions and require undertakings to meet the individual circumstances.
- (9)If the person who issues the writ is permitted to adduce further evidence at the hearing in order to sustain the order sought, and the third party has no prior notice of it, this may be relevant to the question of costs of the application.
- (10)There is no reason why before any application is brought to the Court, there should not be dialogue between the third party and the person who issues the writ for clarification or to state grounds of objection. The person who issues the writ may then satisfy the third party in writing, or might desist if the objections raised are accepted.
- In Naskam Security Services Pty Ltd v Adarm Security Pty Ltd, Dodds DCJ held, in considering the application of r 242 of the UCPR:
The procedure is not available when its only purpose is a fishing expedition for documents which may have been in the possession of a person not a party to the action. Documents sought must be shown to probably be directly relevant to an allegation in issue on the pleadings. (emphasis added)
- In Smith v. O'Leary & Anor McGill DCJ made the following observations about the rules for disclosure of documents by non-parties:
The Uniform Civil Procedure Rules introduced a different regime about non-party disclosure compared with the mechanism set out in O.40 r.38A-38F, under which a person served with a writ of non-party discovery had to comply with it or make the application set aside or have it varied: r.38C. This was seen as placing too much pressure on a person served with such a writ, so that under the Uniform Civil Procedure Rules the person served with the equivalent notice of non-party disclosure merely has to file a notice of objection, and it is then a matter for the party who issued the notice to make the application, if that party wants to pursue the matter. It was in this context that a rule that prima facie costs are to be borne by each party to that application can in my opinion be seen as a further safeguard to a person who has been served with a notice of non-party disclosure and is unhappy about it. The importance of such safeguards is that otherwise there is a serious risk that on occasions the non-party disclosure mechanism may be used in a way which is oppressive, and because of the recognition that people who are not parties to a dispute in court should not be inconvenienced by that dispute any more than is necessary. (emphasis added)
- The consideration by the courts of the application of r 242 of the UCPR usefully informs a consideration of s 63 of the QCAT Act. However there are a number of important differences between the process for obtaining non-party disclosure under the UCPR and under the QCAT Act and Rules.
- As I have observed, under the UCPR the non-party is first served with the notice of non-party disclosure, allowing the non-party to object to the production of a document. Rule 245(4) sets out a non-exhaustive list of reasons a non-party may rely upon in objecting to the production of a document. Section 63 of the QCAT Act and s 78(2) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) do not require a copy of an application for non-party disclosure to be served upon a non-party. Under the UCPR, if a non-party objects to the production of a document, it is for the party seeking the document to apply to the court for the appropriate orders. Under s 63(2) of the QCAT Act, a non-party must comply with the tribunal order for the production of a document within the period stated in the order, unless under s 63(3) the non-party has a valid claim to privilege from disclosure.
- As I have outlined, the UCPR contains a number of important safeguards to ensure that, as McGill DCJ observed in Smith v. O'Leary & Anor, the mechanism for non-party disclosure is not used oppressively and that non-parties are not inconvenienced any more than is necessary. However, under the QCAT Act the tribunal must exercise its discretion in determining whether an order for non-party disclosure should be made. In exercising the discretion the tribunal must be satisfied that: the document or documents are sufficiently particularised; the document or documents are relevant to the proceeding; and the document or documents are in the possession or control of the non-party.
- Under the UCPR, the relevance of a document turns upon the pleadings and the allegations in issue. The tribunal is not a pleadings jurisdiction. It is not a requirement, nor is it expected, of an originating application or a response that it achieve the same level of sophistication or detail as would a pleading in the form of a statement of claim or a defence. The orders sought by Gedoun and the reasons for seeking those orders as set out in the Application are brief. Gedoun seeks the recovery of monies due and owing pursuant to a building contract. In the Application, Gedoun refers to the assertion by Mr Agius that the building works have not reached practical completion and sets out the basis upon which Gedoun says that Mr Agius’s assertion cannot be maintained. The response and counter-application filed by Mr Agius is somewhat more expansive than the Application. Mr Agius effectively puts in issue whether the works reached practical completion. The response and counter-application by Mr Agius also alleges defective building work and claims liquidated damages for delay in completion of the building works. Gedoun has been directed to file a response to the counter-application. Accordingly, what may be in issue in respect of the allegations in the counter-application is not yet apparent.
- In the absence of pleadings, it is the statements of evidence filed by the parties that generally assist in identifying the relevant issues in dispute. In these proceedings, the statements of evidence have not been filed and the matter is yet to proceed to a compulsory conference.
- The purposes of a compulsory conference are:
- (a)to identify and clarify the issues in dispute in the proceeding;
- (b)to promote a settlement of the dispute the subject of the proceeding;
- (c)to identify the questions of fact and law to be decided by the tribunal;
- (d)if the proceeding is not settled, to make orders and give directions about the conduct of the proceeding;
- (e)to make orders and give directions the person presiding over the conference considers appropriate to resolve the dispute the subject of the proceeding.
- In building disputes, and this is particularly so in a non-pleadings jurisdiction, the compulsory conference performs an important function in focussing the parties on identifying the issues in dispute. Often it will only be following the conference that directions are made for the parties to file and serve their statements of evidence which should also assist in identifying the issues in dispute and the questions of fact and law the tribunal will be required to decide.
- As I have observed, in making an order for the production of documents by a non-party the tribunal must be satisfied that, inter alia, the documents are relevant to the proceeding. The matters I have considered relevant to whether I should exercise my discretion to order the production of the documents sought by Mr Agius are:
- (a)A response to the counter-application has not yet been filed and the issues in dispute in the proceedings are therefore not yet fully identified;
- (b)The applications reveal no clearly identified grounds for the production of documents including their relevance to the matters in dispute in the proceedings;
- (c)A compulsory conference has been scheduled but not yet conducted and the parties have not yet filed their statements of evidence.
- The only reason stated in the applications why the orders should be made is that the documents ‘are essential’ ‘as advised by my solicitor’. The reasons are far from adequate. Indeed, the applications reveal no basis upon which the orders sought should be made. On the basis of the application and the response and the issues thus far identified as I have outlined in these reasons, it is not apparent to me how the documents sought are relevant.
- The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick. I am not satisfied that Mr Agius has established the documents sought are relevant to the proceeding. In my view it is not in the interests of justice to make the orders for disclosure sought by Mr Agius. The proposed orders would not, at this juncture at least, facilitate the just and expeditious resolution of the issues in the proceedings at a minimum of expense.
- The applications are refused.
- Published Case Name:
Gedoun Constructions Pty Ltd v Agius
- Shortened Case Name:
Gedoun Constructions Pty Ltd v Agius
 QCAT 129
Senior Member Brown
16 May 2019