Coppens v Water Wise Design Pty Ltd

[2013] QCATA 285

CITATION: Coppens v Water Wise Design Pty Ltd [2013] QCATA 285

PARTIES:	Josephine Rosalie Coppens (Applicant/Appellant)
v
Water Wise Design Pty Ltd (Respondent)

APPLICATION NUMBER: APL316-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 16 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – INTERLOCUTORY APPLICATION – NOTICE REQUIRING WITNESS TO PRODUCE – where applicant sought Tribunal issue notice requiring respondent produce copy of designs – where Tribunal dismissed application – where applicants seeks leave to appeal that decision – where respondent contends it does not have the designs the applicant seeks – where respondent contends application for leave to appeal is frivolous, vexatious or misconceived – whether grounds for leave to appeal – whether it is necessary to determine if application is frivolous, vexatious or misconceived

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 47, 97

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This matter goes back as far as 2005 when Ms Coppens engaged Water Wise Design Pty Ltd to design an on-site sewerage system for a house being built by her near Hervey Bay. She began proceedings in QCAT’s domestic building disputes jurisdiction in 2010.[1] The matter has, I understand, finally come to a hearing before a QCAT Member in Hervey Bay on 3 October 2013. The learned Member’s decision is reserved.

   [1]Under the Queensland Building Services Authority Act 1991.

2. Ms Coppens seeks, in any event, leave to appeal a decision of the Tribunal made on 17 July 2013 in the building case.[2] On 3 July 2013 Ms Coppens applied for a notice requiring Water Wise to produce a copy of the specifically designed waste water sewerage treatment facility.[3] The application was dismissed by a QCAT Senior Member at the hearing on 17 July.

   [2]BDL375-10.

   [3]QCAT Act s 97.

3. Because the Senior Member’s order was not the Tribunal’s final decision in the proceeding, Ms Coppens is required to seek leave to appeal before she can bring an appeal proper.[4] The Appeal Tribunal determined to hear the application for leave to appeal (and the appeal, if leave is granted) on the papers and both parties were invited to file submissions, and have done so.

   [4]QCAT Act s 142(3)(a)(ii).

4. Ms Coppens’ grounds of appeal are that the dismissal of her application has denied her the ‘right’ to prove ‘without a doubt’ that she never employed the respondent to design her on-site sewerage facility; that the facility installed in her property was not specifically designed by the respondent; and, on other grounds.

5. Ms Coppen’s application to the Tribunal seeking a notice that Water Wise produce a copy of the sewerage treatment facility design was made in the context of her having annexed, in her original application in BDL357-10, a number of documents which appear to comprise all of the design and certification works undertaken by the respondent in respect of the works on her property. That was the argument advanced for Water Wise at the hearing on 17 July and, apparently, accepted by the learned presiding Senior Member.

6. The respondent also contended then, and does so in its submissions to the Appeal Tribunal, that if Ms Coppens is seeking the design of what is called the PuraWaste treatment plant (which is said to be part of the on-site sewerage facility constructed on her premises) then, it says, that treatment plant was designed by another company (Cardno) and should be sought elsewhere.

7. The respondent’s position was, and remains, that it does not have the documents Ms Coppens seeks. Nothing in her submissions is persuasive that the learned Senior Member made any error in determining her application, in those circumstances. Nothing in the documents in the building case suggests the respondent has ever claimed to have designed the PuraWaste treatment plant. No error on the part of the learned Senior Member, warranting a grant of leave to appeal, is identified.   

8. Water Wise also contends, however, that there are other grounds for refusing Ms Coppens leave. It is alleged that her application for leave is, as the phrase is used in s 47 of the QCAT Act, ‘frivolous, vexatious or misconceived’.

9. In support of that submission Water Wise points out that her original building application was brought almost three years ago; that it initially required consideration of a jurisdictional issue raised by a local authority, which she had joined to the proceedings and which was subsequently struck out.  The matter then proceeded to a compulsory conference in the Tribunal but Ms Coppens sought a direction for the formal determination of a preliminary issue. 

10. A QCAT Adjudicator decided, in January 2012, that determination of the preliminary issue would not be fruitful or have any material bearing on the outcome of the proceedings. Ms Coppens then sought leave to appeal that decision, and that application was dismissed by Mr Jerrard QC, sitting in the QCAT Appeal Tribunal, in June 2012. 

11. Ms Coppens then lodged an application for leave to appeal that decision to the Court of Appeal which, ultimately, dismissed her application in a decision delivered 7 June 2013; the Court observed that, once the local authority had been removed as a party to Ms Coppens’ original proceedings, there was no significant point in having the question answered.

12. A directions hearing was scheduled in the principle matter for 17 July, and Ms Coppens then brought the application under discussion. Prior to the hearing Water Wise wrote to her advising her that it did not have the documents she was seeking, and that she should pursue them elsewhere. Nevertheless, she persisted with the application. The current appeal is, Water Wise contends, yet another attempt by Ms Coppens to disadvantage it by incurring costs, creating inconvenience, and wasting time in the proceedings.

13. Certainly, the proceedings have not been advanced in an effective and satisfactory way. That said, it is unnecessary to decide whether or not Ms Coppens application for leave to appeal should be dismissed under s 47 because, for the reasons given earlier, she has failed to establish any basis warranting a grant of leave.