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- Unreported Judgment
Ward v Williams QCAT 136
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Ward & Anor v Williams  QCAT 136
DAVID JOHN WARD
NICOLE SKY WARD
16 May 2019
Senior Member Brown
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where application made to substitute respondent – joinder of respondent – where party sought to be a joined a deregistered company.
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 the production of documents from non-parties – where application made seeking disclosure of documents by a deregistered company – where description of the documents the subject of the application expressed in broad terms – whether documents relevant to proceedings.
Corporations Act 2001 (Cth), s 601AD;
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 63;
Uniform Civil Procedure Rules 1999 (Qld), r 242
Chenoweth v ING Australia Ltd  QSC 143;
CSR Ltd v Casaron Pty Ltd & Ors  QSC 126;
Waratah Coal Pty Ltd v Nicholls & Anor  QSC 068
AJ & Co Lawyers
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
- On 23 April 2019 I made a decision refusing three applications filed by the applicants:
- (a)An application for miscellaneous matters filed 17 April 2019 to substitute Tailor Made Constructions Pty Ltd (Tailor Made) as respondent (the application to substitute a respondent);
- (b)An application for miscellaneous matters filed 17 April 2019 for the production of documents by Tailor Made Constructions Pty Ltd (the first application to produce);
- (c)An application for notice requiring witness to produce documents filed 11 January 2019 (the second application to produce).
- These are the reasons for my decision.
- By way of background, the applicants entered into a contract for the construction of a duplex. The identity of the building contractor is now a matter of common ground between the parties. Suffice it to say, and as I set out in these reasons, the parties appear to agree it was Tailor Made, not Mr Williams who contracted with the applicants to construct the duplex. The applicants have commenced proceedings claiming damages for breach of contract. Among other things, the applicants say that the builder was responsible for the payment of infrastructure charges to the local authority which they have been required to meet. The applicants also claim damages for incomplete works, liquidated damages and consequential including lost rental income and finance costs.
Application to substitute a respondent
- The applicants say that Tailor Made is the party named in the building contract. They say that the respondent is a director of the company and was incorrectly named as respondent.
- The building contract between the parties is before the Tribunal. The parties to the contract are the applicants and Tailor Made. As I set out later in these reasons the parties, in their respective statements of evidence, now appear to agree that the building contract was with Tailor Made.
- The tribunal does not have the power to order the substitution of a party. The tribunal may however order the joinder of a person as a party. Such an order may be made if the tribunal considers that:
- (a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- (b)the person’s interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
- Tailor Made was deregistered on 5 April 2019. Once a company is deregistered it ceases to exist as a legal entity. In order for legal proceedings to be brought against Tailor Made it must first be reinstated. A person may apply to ASIC to reinstate a company or apply to the court for an order that ASIC reinstate the company. Until such time as Tailor Made is reinstated it is not a legal entity. As such Tailor Made is not a ‘person’ for the purposes of s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Tailor Made cannot be joined as a respondent. It is deregistered and does not exist as a legal entity.
- The application to substitute a respondent must be refused.
The first application to produce
The first application to produce seeks the disclosure by Tailor Made of ‘tax and bank records for 14/15, 15/16, 16/17, 17/18 financial years’. The applicants say the reasons they seek the production of the documents is to ‘determine the viability of reinstating the company’ and to ascertain the financial position of the company at various points in time. As I have observed, Tailor Made no longer exists as a legal entity. Generally speaking once a company is deregistered its property vests in ASIC. The tribunal may make an order requiring a person who is not a party to a proceeding to produce a document or thing to the tribunal or to a party to the proceeding.
- Tailor Made, being deregistered, is no longer a legal entity and cannot be the subject of an application or an order pursuant to s 63(1) of the QCAT Act. This is sufficient to dispose of the application.
- I would not in any event be persuaded that the documents are relevant to an allegation or issue in dispute in the proceeding.
- In Waratah Coal Pty Ltd v Nicholls & Anor Applegarth J, in the context of judicial review proceedings and the application of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’), held:
There is no entitlement to disclosure in an application of the present kind. But specific disclosure will be ordered in an appropriate case if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. If a case is made out for disclosure, then a suitably-tailored order usually should be made, rather than simply expect disclosure to be made in accordance with Part 1 of Chapter 7. One reason is that in a proceeding where there are no pleadings there may be scope for unnecessary disputes and misunderstandings about whether a document is “directly relevant to a matter in issue in the proceeding.” Another is that in any case in which disclosure is ordered, its scope should be defined and not be excessively wide.
- Unlike the procedure in the courts for non-party disclosure governed by the Uniform Civil Procedure Rules, a party to proceedings in the tribunal is not entitled to issue a notice requiring a non-party to produce documents in the absence of the approval of the tribunal. Section 63(1) of the QCAT Act requires the tribunal to be satisfied that a document sought to be disclosed is in the possession or control of the person and is relevant to the proceeding. The issue of relevance has been the subject of consideration by the courts in the context of the non-party disclosure rules under the UCPR. By r 242(1) of the UCPR a party may by notice of non-party disclosure require a non-party to produce a document directly relevant to an allegation in issue in the pleadings. It is trite to observe that the tribunal is not a pleadings jurisdiction and it is therefore unsurprising that the wording of s 63(1) of the QCAT Act differs to that found in r 242.
- Section 63(1) refers to ‘a document or thing relevant to the proceeding’. The present proceeding is a claim by the applicants against Mr Williams for damages for breach of contract. Attached to the originating application is a copy of the building contract. The contractor’s name is identified as Tailor Made Constructions Pty Ltd. The applicants allege that ‘Andrew Williams of Tailor Made Constructions’ was the ‘only builder’ contracted to undertake the building work. The allegation is admitted in the response.
- The parties have filed statements of evidence. In their joint statement of evidence the applicants refer to the respondent as Tailor Made Constructions Pty Ltd and say that the company was ‘the only builder contracted to build the duplex for the owners’. In his statement of evidence, Mr Williams says that the parties to the building contract were the applicants and Tailor Made Constructions Pty Ltd.
- The identity of the parties to the contract now appears to have been clarified by the statements of evidence. It appears to be common ground that the parties to the building contract were the applicants and Tailor Made Constructions Pty Ltd.
- The dispute between the parties is, essentially, a contractual one. The applicants purported to terminate the contract pursuant to s 90(1)(b) of the Domestic Building Contracts Act 1990 (Qld) as a result of what the applicants said was the builder’s failure to bring the works to practical completion within the required period. The tribunal will be required to determine, inter alia, whether the contract was properly terminated and if so, the consequences flowing from the termination. The applicants claim liquidated damages pursuant to the contract, the cost of local authority infrastructure charges they were required to pay and which they say the builder was obliged to meet, and other damages including the costs of completing work and consequential damages, comprising loss of rental income and expenses associated with the maintenance of the property.
- It is clear from the foregoing that the documents sought by the applicants are not relevant to an issue in the proceeding for the purposes of s 63(1) of the QCAT Act but rather are sought for an ulterior purpose namely ascertaining the viability or otherwise of an application to reinstate Tailor Made. The power conferred upon the tribunal by s 63(1) will be exercised if it is in the interests of justice to do so and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. The power must be exercised consistently with the objects of the QCAT Act which include having the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. The power will not be exercised if the application for non-party disclosure seeks to gain access to documents, not relevant to the real issues in dispute, for an ulterior purpose.
- Accordingly, the first application to produce is refused.
The second application to produce
- The applicants seek the production of a number of documents from the Toowoomba Council. The documents sought are ‘all documents and correspondence relating to infrastructure charges in each of the following developments: Glenvale Rise Estate; Alpine Crt, Cranley’. The application also seeks the production of ‘all documents and correspondence relating to infrastructure charges for each of the following individual properties: …’ The application then goes on to identify 8 specific properties and ‘any other duplexes’ built by Tailor Made or the respondent during the period between 2012 and December 2016. The application also seeks an order that the Toowoomba Counsel identify the person or person who paid the infrastructure charges.
- Unlike s 62(3) of the QCAT Act which empowers the tribunal to direct a party to a proceeding to ‘provide information’ to the tribunal or to another party, s 63 is limited to the production of a document or thing by persons who are not parties. There is no power in the tribunal to direct a non-party to ‘provide information’ to a party or to the tribunal.
- The applicants’ allege that they paid to Toowoomba Council infrastructure charges of $26,112 which should have been paid by the respondent. In his response the respondent says, inter alia, that the payment of infrastructure charges was not provided for under the contract and was a cost to be paid by the developer, not the builder.
- It is not apparent what the relevance of the documents sought to be produced is with the possible exception of the documents relating to the applicants’ duplex. The proceedings involve a contractual dispute between the parties. The determination of the matter will turn principally on the construction of the contract and whether the contract required the builder to pay the infrastructure charges.
- On the face of the second application it is not apparent what the relevance to these proceedings is of contractual arrangements that may have applied to the construction of other properties, including the payment of infrastructure charges, and any documents relating thereto. Again, with the exception of the documents relating to the applicants’ duplex, the application has the flavour of a ‘fishing expedition’. I am not satisfied that the applicants have established that the documents sought are relevant to the proceedings.
- Aside the question of relevance, the second application to produce is expressed in very broad terms. The applicants seek ‘all documents and correspondence relating to infrastructure charges’ relating to the identified developments and properties. In Chenoweth v ING Australia Ltd a party sought non-party disclosure of:
… all documents which are in the possession of [the non-party] which are directly relevant to the allegations in the pleadings which are set out herein.
- Mackenzie J set aside the notice of non-party disclosure finding that:
 Within the framework of the submissions, it was submitted that the notice was oppressive in that it did not specify individual documents or classes of documents; the only stated limit was direct relevance to allegations in the pleadings set out in the notice. In addition the notice did not limit itself to matters truly in issue since admissions in the defence made disclosure with respect to some of them wholly or partly unnecessary. Further, the period covered by the notice was about five years.
 Taken in conjunction with the lack of any clearly pleaded link between the respondent and the defendant and the assertion by the defendant that it had no other documents from the respondent except those already disclosed, and the lack of evidence of the existence of any others, the ambit of the notice was oppressive…
- His honour observed:
It may be that, subject to what has been said, a more precisely drawn notice might be upheld, but its present form is not adequate.
- One of the consequences of not sufficiently describing the documents sought from a non-party is that the non-party would be required to exercise a considerable degree of judgment as to what is relevant in the proceeding in complying with a tribunal order. Any such uncertainty apparent in an application to produce will be a relevant matter in the exercise of the discretion to order a non-party to produce a document.
- I am not satisfied that the second application to produce is framed with sufficient particularity that it adequately identifies the specific classes or types of documents the applicants seek production of. The description of ‘all documents and correspondence relating to infrastructure charges’ is so broad and non-specific that, in my view, it would be oppressive to expect the non-party to readily comply with an order so worded without exercising an impermissible degree of judgement.
- The applicants may wish to consider filing a fresh application, more precisely drawn. That is a matter for the applicants. The second application to produce is refused.
cf Uniform Civil Procedure Rules 1999 (Qld), r 69.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 42(1).
Extract from ASIC database dated 23 April 2019.
Corporations Act 2001 (Cth), s 601AD(1).
Ibid, s 601AD(2)
QCAT Act, s 63(1).
 QSC 068, .
Application for domestic building disputes filed 6 July 2018 - schedule.
Response filed 1 August 2018, Annexure A
Statement of evidence of applicants filed 11 January 2019.
Statement of evidence of respondent filed 26 March 2019.
QCAT Act, s 3(b).
 QSC 143
See CSR Ltd v Casaron Pty Ltd & Ors  QSC 126.
- Published Case Name:
Ward & Anor v Williams
- Shortened Case Name:
Ward v Williams
 QCAT 136
Senior Member Brown
16 May 2019