Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. McDonald v Queensland Building and Construction Commission - [2023] QCAT 123

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

McDonald v Queensland Building and Construction Commission[2023] QCAT 123

McDonald v Queensland Building and Construction Commission[2023] QCAT 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McDonald & ors v Queensland Building and Construction Commission & ors [2023] QCAT 123

PARTIES:

damian john mcdonald

dale marett

(Applicants)

v

queensland building and construction commission

(First respondent)

pj burns builder pty ltd

(Second respondent)

APPLICATION NO/S:

GAR089-20; GAR191-20; GAR071-21; GAR458-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 April 2023

HEARING DATE:

6 April 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

  1. The applications for notices to produce the building inspection report by Howzat Inspections Pty Ltd dated 20 June 2019 and the building inspection report by Domestic Overhaul Qld Pty Ltd (t/as Insight Building Inspections) dated 28 August 2019 filed on 26 May 2022 are allowed.
  2. That the respondent produce the documents by 4:00pm on 24 April 2023.
  3. In respect of a document described as the Smartbuilt advice and/or building report of in or about November 2019, concerning the premises the subject of these proceedings:
    1. (a)
      That the respondent produce the Smartbuilt advice and/or building report of in or about November 2019, concerning the premises the subject of these proceedings, by 4:00pm on 24 April 2023.
    2. (b)
      In the event that no such document exists, that the respondent file and serve an affidavit, by a director, deposing to the fact that no such document exists, by 4:00pm on 24 April 2023.

CATCHWORDS:

PRACTICE AND PROCEDURE – application for notices to produce – application resisted on basis documents the subject of disclosure in proceedings before the Magistrates Court and subject to an implied undertaking that they not be used for collateral purposes – whether documents subject to the undertaking – whether leave of the Magistrates Court need first be obtained – whether documents required to be produced

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

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hearne v Street [2008] 235 CLR 125

Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436

APPEARANCES &

REPRESENTATION:

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]
    The applicants have made three applications for Notices to Produce in respect of the following documents:
    1. (a)
      A building inspection report by Howzat Inspections Pty Ltd dated 20 June 2019;
    2. (b)
      A building inspection report by Domestic Overhaul Qld Pty Ltd (t/as Insight Building Inspections) dated 28 August 2019; and
    3. (c)
      For Smartbuilt Brisbane Pty Ltd to produce its ‘report and advice to PJ Burns Builder Pty Ltd’.
  2. [2]
    The applications are made pursuant to s 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) which provides, relevantly, that:

(1) The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.

(2) The tribunal may hold a directions hearing for giving the direction before any other hearing is held for the proceeding.

(3) Without limiting subsection (1) , the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to—

(a) the tribunal; or

(b) another party to the proceeding.

(4) A party must comply with a direction given under this section within—

(a) the period stated in the direction; or

(b) if the tribunal has extended the period within which the direction must be complied with—the extended period.

(5) However, subsection (4) does not apply to a document or thing, a part of a document or thing, or information for which there is a valid claim to privilege from disclosure.

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

Relevant background

  1. [3]
    On 25 October 2018 the applicants entered into a contract with PJ Burns Builder Pty Ltd for it to construct a single storey new residential dwelling with a garage. A dispute arose in June/July 2019 as to whether the works carried out under the contract were defective or incomplete and practical completion had been reached.
  2. [4]
    On 18 September 2019 the applicants gave a Notice of Termination of Contract dated 17 September 2019 to PJ Burns Builder Pty Ltd.
  3. [5]
    On 3 October 2019 PJ Burns Builder Pty Ltd commenced a proceeding in the Magistrates Court.
  4. [6]
    On 25 October 2019 the applicants made a complaint to the Queensland Building and Construction Commission (QBCC) in accordance with Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). On 25 October 2019 the applicants made a complaint to the QBCC in accordance with Part 6 of the QBCC Act.
  5. [7]
    On 13 November 2019 the applicants filed a defence and counter claim in the Magistrates Court proceeding.
  6. [8]
    On 4 March 2020, the applicants filed the first of four applications to review in the Tribunal. The current review proceedings are GAR089-20 (review of decision to reject the applicants’ claim for assistance under the Queensland Home Warranty Scheme); GAR191-20; GAR071-21; and GAR458-21. The other three review matters also relate to the decision to reject the applicants’ claim for alleged defective or incomplete building work.
  7. [9]
    In May 2021 PJ Burns Builder Pty Ltd served its List of Documents on the applicants in the Magistrates Court proceeding. The List disclosed:
    1. (a)
      A building report of the works carried out by PJ Burns Builder Pty Ltd under the contract performed by Howzat Inspections Pty Ltd dated 20 June 2019; and
    2. (b)
      A building report of the works carried out by PJ Burns Builder Pty Ltd under the contract performed by Insight Building Inspections dated 28 August 2019.
  8. [10]
    Smartbuilt Brisbane Pty Ltd trades under the business name Termi Home and Commercial (amongst others). PJ Burns Builder Pty Ltd disclosed a visual termite inspection report dated 4 January 2020 from Termi Home and Commercial. The applicants state that the document is only a visual inspection report as opposed to a recommendation regarding the installation of a reticulating termite system.
  9. [11]
    The applicant submits that it is their belief that on or about November 2019 Smartbuilt prepared an advice or building report. They rely on an email of 27 July 2021 from the Technical Manager of Termitrust (another business name of Smartbuilt) who refers to the builder “calling [them] up to do a reticulation installation to 2 areas at the front of the house” and a further email of 29 July 2021 which stated that the recommendation came from them out of site visits they did.
  10. [12]
    On 8 April 2022 PJ Burns Builder Pty Ltd filed its evidence in the Tribunal proceedings. The evidence consisted of a statement of evidence of Patrick John Burns dated 7 April 2022 which did not mention either of the two reports (by Howzat and Insight Building Inspections) and made no mention of Smartbuilt or Termitrust.

Applicants’ submissions

  1. [13]
    The applicants say the reports are relevant to the review proceedings and should be produced. They say the reports go to ‘the heart of the matters in dispute” in the Tribunal, being whether the applicants validly terminated the contract and the complaints made to the QBCC regarding defective and incomplete building work. It is submitted that the Smartbuilt/Termitrust advice or report is also relevant to the proceedings.
  2. [14]
    The applicants contend that the Howzat Report and Insight Building Inspection Report were produced in June 2019 and August 2019 prior to the commencement of proceedings in the Tribunal or the Magistrates Court. Further, it is submitted, they were not produced in compliance with a requirement of the Magistrates Court proceeding and as such were obtained voluntarily by PJ Burns Builder Pty Ltd.
  3. [15]
    The applicants submit that the Tribunal will be unable to make the correct and preferable decision without the reports and the fresh hearing undertaken in a review does not exclude evidence produced around the time that the dispute arose. Further, that the Tribunal pursuant to s 28(3)(b) of the QCAT Act is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the Tribunal adopts the rules, practices or procedures.
  4. [16]
    The applicants rely on s 62(3) of the QCAT Act which gives the Tribunal the power to require a party to produce a document and which power is only limited where there is a valid claim to privilege: s 62(4). They also refer to ss 63(1) and (5) which they say, in effect, empowers the Tribunal on its own initiative to make an order requiring a person who is not a party to the proceeding to provide a document relevant to the proceeding.
  5. [17]
    In any event, the applicants submit, if the relevant document can be shown to relate to a matter in question in that proceeding and ought there be discovered, release of the implied undertaking would not be required to be obtained before an order is made for further discovery in that proceeding: Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 at [19] and [22].

PJ Burns Builder Pty Ltd’s submissions

  1. [18]
    PJ Burns Builder Pty Ltd say that copies of the Howzat Report; the Insight Building Inspection Report and Termi Home and Commercial visual termite inspection report were provided by PJ Burns Pty Ltd to the applicants in the Magistrates Court proceeding on 3 June 2021.
  2. [19]
    In relation to the applicants’ belief that Smartbuilt prepared an advice or building report, PJ Burns Builder Pty Ltd submits that, notwithstanding the emails referred to, the basis for the purported belief is not made out, nor is the advice or building report identified. It is also not clear, they submit, how any such report is relevant to the review proceedings.
  3. [20]
    PJ Burns Builder Pty Ltd also submits, in respect of each of the three reports (assuming the third report to be the Termi Home and Commercial visual termite inspection report dated 4 January 2020) that they came into the applicants’ possession as a consequence of being disclosed by PJ Burns Builder Pty Ltd in the Magistrates Court proceeding. Further, that the reports are subject to a ‘Harman undertaking’ and cannot be used in the review proceedings without the leave of the Magistrates Court, being the court to whom the undertaking applies.

Consideration

  1. [21]
    The Harman undertaking[1] is an implied undertaking to the court by the applicants and their legal representatives that persons who access or obtain possession of documents as a result of compulsion arising from the legal process cannot use those documents for a collateral purpose without obtaining relief from the undertaking from the court.
  2. [22]
    The nature of the undertaking was described by the High Court in Hearne v Street[2] as a substantive legal obligation which bound parties and their legal representatives. The primary person bound by the relevant obligation was said to be the litigant who receives documents or information from the other side pursuant to litigious processes.
  3. [23]
    The undertaking is subject to the qualification that once the relevant documents have been tendered or read into evidence it becomes part of the public domain, unless the court restrains publication.[3]
  4. [24]
    The extent of the undertaking was described in Hearne by Hayne, Heydon and Crennan JJ as follows:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise [Bourns Inc v Raychem Corp [1999] 1 All ER 908 at 916 [19]; affd [1999] 3 All ER 154 at 169-170], to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery [Riddick v Thames Board Mills Ltd [1977] QB 881; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33; [1995] HCA 19], answers to interrogatories [Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510-511; Ainsworth v Hanrahan (1991) 25 NSWLR 155], documents produced on subpoena [Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322], documents produced for the purposes of taxation of costs [Bourns Inc v Raychem Corp [1999] 3 All ER 154 at 169-170], documents produced pursuant to a direction from an arbitrator [Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33, 39, 46-47 and 48], documents seized pursuant to an Anton Piller order [Cobra Golf Inc v Rata [1996] FSR 819], witness statements served pursuant to a judicial direction [Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223; State Bank of South Australia v Smoothdale (No 2) Ltd [1995] SASC 5070; (1995) 64 SASR 224 at 229] and affidavits [Medway v Doublelock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261; Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156]. …

It is common to speak of the relevant obligation as flowing from an "implied undertaking" [Medway v Doublelock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261; Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156].[4]

  1. [25]
    However, the undertaking is not unyielding or unqualified. In Esso Australia Resources Ltd v Plowman,[5] Mason CJ (with whom Dawson and McHugh JJ agreed) said:

It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.[6] (my italics)

  1. [26]
    Patrick v Capital Finance Pty Ltd (No 4)[7] is a decision which demonstrates the qualified nature of the implied undertaking. There, it was held by the Federal Court that, in relation to a letter subject to the implied undertaking, if it could be shown that the letter related to a question in the proceeding before it and that it ought to be discovered, release of the undertaking would not be required to be first obtained from the County Court before the Federal Court made an order for further discovery in that proceeding.[8]
  2. [27]
    The documents mentioned above, being the building inspection report by Howzat Inspections Pty Ltd dated 29 June 2019; and the building inspection report by Domestic Overhaul Qld Pty Ltd (t/as Insight Building Inspections) dated 28 August 2019 were disclosed by PJ Burns Builder Pty Ltd to the applicants in the Magistrates Court proceedings. Those proceedings, and these proceedings, arise from the same facts. The reports were obtained by PJ Burns Builder Pty Ltd as expert reports on the work done. PJ Burns Pty Ltd chose to obtain them, and to rely upon them in the earlier proceedings. The underlying rationale of the implied undertaking does not comfortably respond to documents of that nature: these are not simply produced by reason of the compulsory process of the court. More delay and expense will be caused to the parties if it is necessary to obtain leave of the Magistrates Court for no real purpose.
  3. [28]
    I am satisfied that I have the power to order the production of the documents, if in the exercise of my discretion I should decide to do so. I have determined to exercise my discretion in favour of the production of the two reports, for the reasons above.
  4. [29]
    The third document sought is a report and advice of Smartbuilt Brisbane Pty Ltd to PJ Burns Builder Pty Ltd. There is some doubt whether the document exists. I am satisfied that the report, should it exist, is relevant to the matters presently in dispute. Because of the doubt which exists as to the existence of the document, I will order as follows in relation to it:
    1. (a)
      That the respondent produce the Smartbuilt advice and/or building report of or about November 2019, concerning the premises the subject of these proceedings, by 4:00pm on 24 April 2023;
    2. (b)
      In the event that no such document exists, that the respondent file and serve an affidavit, by a director, deposing to the fact that no such document exists by 4:00pm on 24 April 2023.
  5. [30]
    Accordingly, I make the following orders:
    1. The applications for notices to produce the building inspection report by Howzat Inspections Pty Ltd dated 20 June 2019 and the building inspection report by Domestic Overhaul Qld Pty Ltd (t/as Insight Building Inspections) dated 28 August 2019 filed on 26 May 2022 are allowed.
    2. That the respondent produce the documents by 4:00pm on 24 April 2023.
    3. In respect of a document described as the Smartbuilt advice and/or building report of in or about November 2019, concerning the premises the subject of these proceedings:
  1. (c)
    That the respondent produce the Smartbuilt advice and/or building report of in or about November 2019, concerning the premises the subject of these proceedings, by 4:00pm on 24 April 2023.
  2. (d)
    In the event that no such document exists, that the respondent file and serve an affidavit, by a director, deposing to the fact that no such document exists, by 4:00pm on 24 April 2023.

Footnotes

[1]  Takes its name from Harman v Secretary of State for Home Department [1983] 1 AC 280.

[2]  [2008] 235 CLR 125; see also Harman v Secretary of State for Home Department [1983] 1 AC 280.

[3] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32.

[4] Hearne v Street [2008] 235 CLR 125 at [96] to [97].

[5]  (1995) 183 CLR 10.

[6]  Ibid at 33.

[7]  [2003] FCA 436.

[8]  Ibid at [19].

Close

Editorial Notes

  • Published Case Name:

    McDonald & Ors v Queensland Building and Construction Commission & Ors

  • Shortened Case Name:

    McDonald v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 123

  • Court:

    QCAT

  • Judge(s):

    Traves

  • Date:

    06 Apr 2023

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
Ainsworth v Hanrahan (1991) 25 NSWLR 155
1 citation
Jump To
Cite 1 - (1991) 25 NSWLR 155
Bourns Inc v Raychem Corp (No.3) [1999] 3 All ER 154
2 citations
Jump To
Cite 1 - [1999] 3 All ER 154
Cite 2 - [1999] 3 All ER 154
Bourns Inc v Raychem Corporation [No 3] [1999] 1 All ER 908
1 citation
Jump To
Cite 1 - [1999] 1 All ER 908
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 509
Cite 2 - [1989] 2 Qd R 509
Cobra Golf Inc v Rata [1996] FSR 819
1 citation
Jump To
Cite 1 - [1996] FSR 819
Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322
1 citation
Jump To
Cite 1 - (1990) 25 FCR 322
Esso Australia Resources Ltd v Plowman [1995] HCA 19
1 citation
Jump To
Cite 1 - [1995] HCA 19
Esso Australia Resources v Plowman (1995) 183 CLR 10
6 citations
Jump To
Cite 1 - (1995) 183 CLR 10
Cite 2 - (1995) 183 CLR 10
Cite 3 - (1995) 183 CLR 10
Cite 4 - (1995) 183 CLR 10
Cite 5 - (1995) 183 CLR 10
Cite 6 - (1995) 183 CLR 10
Harman v Secretary of State for the Home Department (1983) 1 AC 280
3 citations
Jump To
Cite 1 - (1983) 1 AC 280
Cite 2 - (1983) 1 AC 280
Cite 3 - (1983) 1 AC 280
Hearne v Street (2008) 235 CLR 125
3 citations
Jump To
Cite 1 - (2008) 235 CLR 125
Cite 2 - (2008) 235 CLR 125
Cite 3 - (2008) 235 CLR 125
Medway v Doublelock Ltd [1978] 1 All E.R. 1261
2 citations
Jump To
Cite 1 - [1978] 1 All E.R. 1261
Cite 2 - [1978] 1 All E.R. 1261
Medway v Doublelock Ltd [1978] 1 WLR 710
2 citations
Jump To
Cite 1 - [1978] 1 WLR 710
Cite 2 - [1978] 1 WLR 710
Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
4 citations
Jump To
Cite 1 - [2003] FCA 436
Cite 2 - [2003] FCA 436
Cite 3 - [2003] FCA 436
Cite 4 - [2003] FCA 436
Re Addstone Pty Ltd (in liquidation); ex parte Macks (1998) 30 ACSR 156
2 citations
Jump To
Cite 1 - (1998) 30 ACSR 156
Cite 2 - (1998) 30 ACSR 156
Riddick v Thames Board Mills Ltd [1977] QB 881
1 citation
Jump To
Cite 1 - [1977] QB 881
Springfield Nominees Pty Ltd v Bridgeland Securities (1992) 38 FCR 217
1 citation
Jump To
Cite 1 - (1992) 38 FCR 217
State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224
1 citation
Jump To
Cite 1 - (1995) 64 SASR 224
State Bank of South Australia v Smoothdale (No 2) Ltd [1995] SASC 5070
1 citation
Jump To
Cite 1 - [1995] SASC 5070

Cases Citing

Case NameFull CitationFrequency
QRZ v Nursing and Midwifery Board of Australia [2024] QCAT 2042 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.