Barns v Commissioner, Queensland Fire & Emergency Services - [2017] QCAT 460

CITATION:	Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 460
PARTIES:	James Thomas Barns and Lynette Joy Barns (Applicant)
v
Commissioner, Queensland Fire & Emergency Services (Respondent)
APPLICATION NUMBER:	GAR028-17
MATTER TYPE:	General administrative review matters
HEARING DATE:	19 December 2017
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
DELIVERED ON:	19 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	The Application for Miscellaneous Matters filed by Mr and Mrs Barns on 31 October 2017 is dismissed.
CATCHWORDS:	EVIDENCE – ADDUCING EVIDENCE – DOCUMENTS – REQUESTS TO PRODUCE – production by third party – where alternative procedures available Disaster Management Act 2003 (Qld), s 121 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63 Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCAT 118 Smith v Queensland Building Services Authority [2011] QCAT 66
APPEARANCES:
APPLICANT:	Mr R J Anderson QC with Ms K Riedel of Counsel
RESPONDENT:	Mr M J Woodford of Counsel

REASONS FOR DECISION

Mr and Mrs Barns applied for compensation for under the Disaster Management Act 2003 (Qld) (the DM Act).
Section 121(2) of the DM Act requires that applications for compensation be made to the Commissioner within 90 days of the loss or damage being suffered. However, s 121(5) permits the Commissioner to accept an application made more than 90 days after the less or damage is suffered if satisfied it would be reasonable in all the circumstances to do so.
Mr and Mrs Barns’ application was made outside the 90 day period, and the Commissioner was not satisfied that it was reasonable to accept the late application. Accordingly, she did not accept or consider the application or pay any compensation.
Mr and Mrs Barns have sought review of the Commissioners decision by the Tribunal.
On 31 October 2017, Mr and Mrs Barns lodged an interlocutory application for orders under s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) requiring seven persons and entities, who are not parties to the proceedings, to produce various documents.
At the time the interlocutory application was made, the substantive application was listed for hearing on 19 December 2017. That hearing date has since been vacated. To the extent that there was any urgency relating to the production of documents stemming from the impeding hearing date, that urgency has now dissipated.
Section 63 of the QCAT Act relevantly provides:
(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 —
(a) the tribunal; or
(b) a party to the proceeding.
(2)     The person in relation to whom the order is made must comply with the order within the period stated in the order.
(3)     However, subsection (2) does not apply to a document or thing, or a part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Barns v Commissioner, Queensland Fire & Emergency Services and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QCAT 460
Decision Date: 19 December 2017

CaseChat Overview and Summary

The parties involved in this case were Mr and Mrs Barns, who sought to compel the Commissioner, Queensland Fire & Emergency Services to produce documents in their possession that were relevant to their personal injury claim. The nature of the dispute revolved around the process of adducing evidence and the production of documents by a third party, specifically the Commissioner. The case was heard in the Queensland District Court. The central legal issues the court had to decide were whether the Commissioner was required to produce the requested documents directly to the Barns, and if alternative procedures were available to facilitate the production of these documents.

The court considered whether the Commissioner was obligated to produce the requested documents directly to the Barns or if there were other means through which these documents could be obtained. The Barns argued that the Commissioner should produce the documents directly to them, while the Commissioner contended that alternative procedures were available to secure the documents. The court examined the statutory framework and case law to determine the appropriate procedure for the production of documents by a third party. It found that while the Commissioner was not required to produce the documents directly to the Barns, alternative procedures could be employed to facilitate the production of these documents.

The court concluded that the Commissioner was not mandated to produce the requested documents directly to the Barns. However, the court acknowledged that there were alternative procedures that could be employed to secure the documents. In light of this, the court dismissed the application for miscellaneous matters filed by the Barns, finding that the Commissioner had not acted improperly in not producing the documents directly to them. The court determined that the application did not warrant any further action, and therefore dismissed it.

The court's decision was that the Commissioner was not required to produce the requested documents directly to the Barns. However, alternative procedures were available to facilitate the production of these documents. The court dismissed the application for miscellaneous matters filed by the Barns, finding that the Commissioner had not acted improperly in not producing the documents directly to them.

Orders

Orders of the court

The Application for Miscellaneous Matters filed by Mr and Mrs Barns on 31 October 2017 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.