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Yates v Queensland Building and Construction Commission[2021] QCAT 398

Yates v Queensland Building and Construction Commission[2021] QCAT 398

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Yates & Anor v Queensland Building and Construction Commission [2021] QCAT 398

PARTIES:

Stephen yates

marie yates

(applicants)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR031-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The application for miscellaneous matters filed 27 September 2021 is refused.
  2. The application for miscellaneous matters filed 8 January 2021 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – where the applicant homeowners applied for joinder of the builder as a respondent in review proceedings – where builder opposed being joined – consideration of the bases upon which a person should be joined as a party – considerations when joining a person against their wishes.

EVIDENCE – ADDUCING EVIDENCE – DOCUMENTS – REQUESTS TO PRODUCE – where the applicant applied for a non-party to prepare a report – consideration of the scope of s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – power of the tribunal to order a non-party to prepare a report – consideration of the scope of the power under s 62 and s 63 to order the production of documents and provide information.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 41, s 42, s 62, s 63.

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242.

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

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

  1. [1]
    In July 2020, the applicants and J W & M M Haylock Pty Ltd ('Haylock’) entered into a contract for the construction by Haylock of a swimming pool. The parties subsequently fell into dispute. In September 2020 the applicants purported to terminate the contract.
  2. [2]
    Following the purported termination, the applicants lodged a non-completion claim with the Queensland Building and Construction Commission (QBCC). On 2 November 2020, the QBCC made a decision that the applicants had not validly terminated the contract with the result that the non-completion claim was denied. The applicants sought internal review of the decision. The internal review decision confirmed the original decision.
  3. [3]
    The applicants subsequently commenced the present proceedings.
  4. [4]
    On 7 October 2021, I refused two applications by the applicants, the first to join Haylock as a respondent and the second seeking to compel the preparation of a report by a person who is not a party to the proceedings. These are my reasons for refusing the applications.

The application for joinder

  1. [5]
    The applicants apply to join Haylock as a respondent. Haylock opposes being joined.
  2. [6]
    In support of the application to join Haylock the applicants say, in very brief submissions, that Haylock should be bound by the final decision in the proceedings ‘so as to achieve finality whether or not they participate’.
  3. [7]
    The QBCC supports the joinder of Haylock as a party and says:
    1. (a)
      The builder’s interests may be affected by the proceedings;
    2. (b)
      Joinder of the builder will avoid multiplicity of tribunal proceedings. The builder should be given an opportunity to call evidence and make detailed submissions about the facts and the law within the present proceeding so that one body on one occasion may make one decision as to all relevant facts and law rather than ventilate issues in a subsequent proceeding should the review decision be set aside;
    3. (c)
      The main issue in dispute is whether the applicants lawfully terminated the contract;
    4. (d)
      The tribunal should have the benefit, in determining the proceedings, of considering evidence and submissions from both parties to the contract;
    5. (e)
      Haylock should be given the opportunity to give its own evidence and act in respect of its own interests;
    6. (f)
      The utility of joining Haylock outweighs the risk of increased complexity or delay in the proceedings;
    7. (g)
      The joinder of Haylock is consistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  4. [8]
    Haylock says:
    1. (a)
      The application for review has no reasonable prospects of success;
    2. (b)
      Haylock should not be burdened with the trouble and costs of being joined as a second respondent. 

Consideration

  1. [9]
    Section 42(1) and s 42(2) of the QCAT Act provide:
  1. (1)
    The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
  1. (a)
    the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
  1. (b)
    the person’s interests may be affected by the proceeding; or
  1. (c)
    for another reason, it is desirable that the person be joined as a party to the proceeding.
  1. (2)
    The tribunal may order that a party be removed from a proceeding if the tribunal considers that—
  1. (a)
    the party’s interests are not, or are no longer, affected by the proceeding; or
  1. (b)
    the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.

…

  1. [10]
    In Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2)[1] the QCAT Appeal Tribunal held:

[11] There must be some utility or purpose in the joinder. It might be that the joinder would avoid duplication of the litigation or multiplicity of proceedings in other proceedings in the tribunal; there might be common question of fact or law involved in the proceeding; the joinder may enable all issues in dispute between affected parties to be finally determined; or it may be that the parties joined would be amenable to an order of the tribunal in the proceeding in the Tribunal. There are also questions of prejudice to the proposed parties in terms of costs, whether the process would be unnecessarily lengthened and, importantly, and whether the objects set out in s 3 of the QCAT would be achieved. These are some of the matters that might be taken into account in the exercise of discretion but are by no means exhaustive and each case would depend on its own particular circumstances.

[12] An example of this is London Woolstores where Member Barlow SC came to the conclusion that the proposed party Leyshon Properties Pty Ltd, despite their opposition to the joinder application, was a party whose interests may be affected by the proceeding and may have been the subject of a direction to rectify from the Authority depending on the findings of fact after a hearing.

  1. [11]
    The Appeal Tribunal in Coral Homes[2] also had this to say about joining a person as a party to a proceeding without the person’s consent:

To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding, here a review of an administrative decision, some utility or purpose in the joinder. This is particularly so given the broad basis upon which a person might have standing to bring an application to either be joined as a party to a proceeding or, to apply to join another party. The threshold to establish that their interest, “may be affected” is easily crossed.

  1. [12]
    Haylock opposes being joined as a respondent. It can be inferred that Haylock is cognisant of the issues for determination in the proceedings and the implications for it should the matter be decided in a particular way. Firstly, Haylock is represented by legal practitioners highly experienced in these types of matters in the tribunal. Secondly, Haylock refers to the various grounds upon which it relies to assert that the applicants’ prospects of success in the proceedings are poor. Thirdly, Haylock refers in its submissions to the relevant principles and authorities relevant to joining a person as a party.
  2. [13]
    The applicants say that the joinder of Haylock is desirable in order to achieve ‘finality’. Just what the applicants mean by ‘finality’ is not at all clear. Should the decision of the tribunal be to confirm the decision under review then, subject to the applicants’ appeal rights, the interests of both parties will crystalise as they presently stand. That is to say, the applicants will be found not to have validly terminate the contract and their non-completion claim will be denied. Should the tribunal decide that the applicants lawfully terminated the contract, Haylock will have no right of appeal against the decision and, subject to the QBCC exercising its right of appeal, must abide the outcome which is likely to result in the applicants’ claim for non-completion being allowed with the consequence that recovery of any payment made under the statutory insurance scheme may be sought from Haylock. There also remains the possibility that the tribunal will set aside the decision under review and return the matter to the QBCC for reconsideration. In respect of each of these possible outcomes it may be said that there will be ‘finality’.
  3. [14]
    The applicants’ submissions are devoid of any detail as to how the joinder of Haylock as a party will achieve the finality to which I have referred. The applicants make no reference to, for example, other proceedings either pending in the tribunal or proposed to be brought in the tribunal involving Haylock and in which there may be some commonality of questions of law or fact for determination.
  4. [15]
    The QBCC’s submissions suffer from the same defect of a lack of particularity. The QBCC refers to the desirability of the joinder of Haylock to enable ‘all issues in dispute in respect of the termination of the contract to be finally determined, and also avoid multiplicity of proceedings.’ It is not clear what the ‘multiplicity of proceedings’ is a reference to. The QBCC submissions are unhelpfully vague in this regard.
  5. [16]
    The QBCC says that the tribunal should have the benefit of considering evidence and submissions from both parties to the contract and that Haylock should be given the opportunity to give its own evidence and act in respect of its own interests. The QBCC’s (and the applicants’) submissions fail to address other ways in which evidence of Haylock may be placed before the tribunal.
  6. [17]
    As the decision maker the role of the QBCC is to assist the tribunal to make the correct and preferable decision. In discharging its obligations, the QBCC will, if it has not done so already, turn its mind to the question of whether Haylock should be requested to provide a statement of evidence. There is nothing before me, for example, to suggest that the QBCC has asked Haylock to provide such evidence. In accordance with directions made by the tribunal following the compulsory conference in September 2021, the QBCC’s statements of evidence are required to be filed by the 25th November 2021. It may be that Haylock is prepared to assist the QBCC in the discharge by the QBCC of its obligation to assist the tribunal. It may also be that Haylock is prepared to give evidence at the final hearing. None of this is addressed in the QBCC’s submissions. Even if Haylock is not prepared to assist the QBCC as outlined, the applicants or the QBCC may apply to the tribunal at the appropriate juncture for a notice to issue requiring a proper officer of the company to attend to give evidence at the final hearing. These possible courses of action do not require the joinder of Haylock as a respondent.
  7. [18]
    I accept that Haylock’s interests may be affected by the proceeding and the final outcome. However, I am also mindful that, despite this, Haylock resists being joined presumably in the full knowledge that its interests may be affected. As the Appeal Tribunal observed in Coral Homes to join parties to a proceeding against their consent is a serious step and one not to be taken lightly in administrative review proceedings such as these. This is particularly so where, as here, the person is legally represented and the proposed party is presumably cognisant of the issues in, and of the potential outcomes of, the proceedings.
  8. [19]
    I am also mindful that there will be costs implications for Haylock should it be joined. It is legally represented and will presumably incur not insignificant legal costs. This is also a relevant consideration in exercising the discretion whether to grant the order sought.
  9. [20]
    Although Haylock makes various submissions regarding the applicants’ prospects of success I do not propose to engage with those submissions. In an interlocutory application such as this, and in the absence of evidence having been filed, it is not possible, desirable or appropriate to engage in a fact-finding exercise regarding the circumstances giving rise to the purported termination of the contract by the applicants. 
  10. [21]
    Balancing all of the relevant considerations, I am not persuaded that it is appropriate to join Haylock and I dismiss the joinder application.

Application for an order requiring the preparation of a report by a person not a party to the proceeding

  1. [22]
    Section 62 and s 63 of the QCAT Act are the source of the power of the tribunal to, inter alia, order the production of documents by a party to a proceeding and by a person who is not a party to a proceeding.
  2. [23]
    Section 62 of the QCAT Act confers upon the tribunal the power to make directions including for the production of documents by a person who is a party to a proceeding and for the provision of information to the tribunal or to another party.[3]
  3. [24]
    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 other thing relevant to the proceeding, to produce the document or thing to the tribunal or a party to the proceeding.[4]  Section 63 does not empower the tribunal to direct that a person who is not a party to a proceeding provide information either to the tribunal or to a party to a proceeding.
  4. [25]
    The term ‘information’ in s 62 is not defined. What is important to note however is that the power contained in s 62 to order the provision of information is not found in s 63.

Consideration

  1. [26]
    The applicants seek an order requiring Mr Gareth Bradley, a person who is a not a party to the proceeding, to prepare and provide a report. Mr Bradley, say the applicants, drew the plans approved by the local authority in respect of the building works the subject of the dispute between the parties. The report which the applicants seek from Mr Bradley is one ‘stating the differences between his council approved engineering plans and what he sighted … at our home …’.
  2. [27]
    As has been stated s 63 of the QCAT Act does not empower the tribunal power to order a person who is not a party to a proceeding to provide information. If, for example, there was in existence a report by Mr Bradley then an order under s 63 might be made. The section cannot however be relied upon to compel Mr Bradley to prepare a report.
  3. [28]
    The applicants are at liberty to request Mr Bradley to provide them with a report. Mr Bradley may or may not comply with such a request. If he does, and the applicants intend to rely upon such a report in these proceedings, QCAT Practice Direction No 4 of 2009 must be complied with. Of course, the applicants will be responsible for any costs associated with the provision of such a report by Mr Bradley. These are all matters to which the applicants may wish to give further consideration.
  4. [29]
    For the foregoing reasons the application for an order requiring Mr Bradley to prepare a report is refused.

Footnotes

[1][2012] QCATA 242.

[2]Ibid 4 [14].

[3]Ibid s 62.

[4]QCAT Act, s 63(1).

Close

Editorial Notes

  • Published Case Name:

    Yates & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Yates v Queensland Building and Construction Commission

  • MNC:

    [2021] QCAT 398

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    07 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242
3 citations
Jump To
Cite 1 - [2012] QCATA 242
Cite 2 - [2012] QCATA 242
Cite 3 - [2012] QCATA 242

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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