Di Mascio v Queensland Building Services Authority

[2009] QCAT 45

Queensland Civil and Administrative Tribunal Act 2009

Citation:	Di Mascio v Queensland Building Services Authority [2009] QCAT 45
Parties:	Daniel Di Mascio -v- Queensland Building Services Authority

Application No:        QR238-09

Matter Type:            Occupational Regulation Matters

Delivered on:           11^th December 2009

Delivered at:            Brisbane

Hearing date:           On the papers

Decision of:             Dr Bridget Cullen Mandikos

Catchwords: Leave granted from procedural requirements to use QCAT forms, section 61(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009; leave to be represented, s43 of the Queensland Civil and Administrative Tribunal Act 2009.

Number of
Paragraphs:             13

ORDERS MADE:   

1. Leave is granted, dispensing with the requirement that the parties utilise the appropriate form seeking consent orders with regard to an extension of time for compliance with directions.

1. Leave granted to the Respondent leave permitting the filing of its statement of reasons and documents on 3^rd December 2009, to be deemed timely and in compliance with the previous direction to comply with this requirement by 4.00 pm on 30^th November 2009.

1. The applicant will file in the registry two copies and deliver to the respondent one copy of:

(a)a document clearly identifying the items of the decision which the applicant seeks to have reviewed and the basis upon which the review is sought;

(b)the applicant’s statement of evidence which should be page numbered with an index of attached documents;

(c)a statement from each witness including any expert witness to give evidence for the applicant at the hearing; and

(d)all relevant documents, which must be identified, explained, and attached to the appropriate witness’s statement; by:

4:00PM ON 22 JANUARY 2010

1. The respondent will file in the registry two copies and deliver to the applicant one copy of:

1. a statement from each witness including any expert witness to give evidence for it at the hearing which should be page numbered with an index of attached documents; and
2. all relevant documents, which must be identified, explained, and attached to the appropriate witness’s statement; by:

4:00PM ON 18 FEBRUARY 2010

Note:

Sending of statements by facsimile and/or email will NOT satisfy the direction to file statements.

1. Paragraphs 4 and 5 of the 28^th October 2009 Order of the then Commercial and Consumer Tribunal are vacated, and the parties directed that evidence taken at the hearing of this matter will be taken in accordance with the provisions contained in the Queensland Civil and Administrative Tribunal Act 2009, in particular, s 95.

1. Attendance Notices

   In the event that either party requires a witness to be ordered to attend or produce documents, the parties are directed to use the Queensland Civil and Administrative Tribunal’s Form 38 – Application for notice requiring witness to attend or produce document or thing

2. Paragraph 6 of the 28^th October 2009 Order of the Commercial and Consumer Tribunal is vacated.

1. The parties are directed that the Application is listed for a further directions hearing at 10.30 am on Monday, 22^nd February 2010, at which time the parties will provide to the Tribunal their list of witnesses for the hearing, and an estimate of hearing time.

1. Any application by the Applicant or Respondent seeking leave to be represented pursuant to the provisions of s43 of the Queensland Civil and Administrative Tribunal Act 2009 is to made according to the following timetable:

a)written submissions will be filed and exchanged by 5^th February 2010;

b)any submissions in reply will be filed and exchanged by 12^th February 2010; and

c)determination of the application will take place at the Directions Hearing at 10.30 am on Monday, 22^nd February 2010.

Reasons for Decision

1. On 25^th September 2009, the Applicant, Daniel Di Mascio, filed an application for review with the then Commercial and Consumer Tribunal of a decision by the Queensland Building Services Authority (“QBSA”), dated 26^th August 2009, refusing the Applicant’s application to be categorised as a permitted individual for a relevant event within the meaning of s 56AD of the Queensland Building Services Authority Act 1991.  The affidavit of service was filed with the then Commercial and Consumer Tribunal on 2^nd October 2009. 

1. On 28^th October 2009, the parties were directed by the then Commercial and Consumer Tribunal to comply with various timeframes for the lodging of relevant materials. 

1. The Commercial and Consumer Tribunal has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal: section 256 Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).

1. On 2^nd December 2009, the parties filed a jointly signed “Form 6 – Consent Notice” with QCAT, using the form provided by the then Commercial and Consumer Tribunal, seeking orders permitting an extension of time for compliance with the directions contained in the 28^th October 2009 Order. 

1. Section 61(1)(c) of the QCAT Act provides that QCAT may, by order, waive non-compliance with procedural requirements under the QCAT Act.

1. In consideration of the fact that the parties have used the previously applicable Commercial and Consumer Tribunal form shortly after the commencement of QCAT, I order that leave be granted, dispensing with the requirement that the parties utilise the appropriate form for consent orders (in this case, QCAT “Application for decision/order by consent”).

1. The 28^th October 2009 Order required the Respondent to file in the registry two copies (and provide a copy of same to the Applicant) of its statement of reasons for decision, together with documents, by 4.00pm on 30^th November 2009.  These documents were filed in the QCAT registry on 3^rd December 2009.

1. I grant the Respondent leave to permit the timely filing of the Respondent’s documents on this occasion, in consideration of the parties’ efforts to obtain an extension of time by consent shortly after the commencement of QCAT. 

1. The remainder of the extensions of time for filing sought by the parties are granted, and reflected in my Order above.

1. I vacate paragraphs 4 and 5 of the 28^th October 2009 Order of the then Commercial and Consumer Tribunal, and now direct the parties that evidence taken at the hearing of this matter will be taken in accordance with the provisions contained in the QCAT Act, and draw particular attention to s 95:

95 Evidence

(1) The tribunal must allow a party to a proceeding a reasonable opportunity to--

(a) call or give evidence; and
(b) examine, cross-examine and re-examine witnesses; and
(c) make submissions to the tribunal.

(2) Despite subsection (1)--

(a) the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal; and
(b) the tribunal may refuse to allow a party to a proceeding to cross-examine a witness about a matter if the tribunal considers--
(i) there is sufficient evidence about the matter before the tribunal; and
(ii) the evidence has been sufficiently tested by cross-examination; and
(c) for an expedited hearing under section 94, cross-examination or re-examination of witnesses is at the discretion of the tribunal, subject to the rules.

(3) Also, the tribunal may place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses.
(4) Evidence in a hearing--

(a) may be given orally or in writing; and
(b) if the tribunal requires, must be given on oath or by affidavit.

(5) A member or adjudicator may administer or cause to be administered an oath for the purpose of taking evidence at a hearing.
(6) A child can not be compelled to take an oath.

1. Attendance Notices

   In the event that either party requires a witness to be ordered to attend or produce documents, the parties are directed to use QCAT Form 38 – Application for notice requiring witness to attend or produce document or thing (available on the QCAT website) for this purpose. QCAT may charge a fee for this service.

1. I vacate paragraph 6 of the 28^th October 2009 Order of the then Commercial and Consumer Tribunal, and direct that the Application is listed for a further directions hearing at 10.30 am on Monday, 22^nd February 2010, at which time the parties will provide to the Tribunal their list of witnesses for the hearing, and an estimate of hearing time.

1. To the extent that the now vacated paragraph 6 of the 28^th October 2009 Order suggested that the parties would be entitled to legal representation, I direct the parties’ attention to s43 of the QCAT Act. Any application by the Applicant or Respondent seeking leave to be represented is to made on the papers according to the following timetable:

a)written submissions will be filed and exchanged by 5^th February 2010;

b)any submissions in reply will be filed and exchanged by 12^th February 2010; and

c)determination of the application will take place at the Directions Hearing at 10.30 am on Monday, 22^nd February 2009.