Dinsey v Queensland Building Services Authority - [2012] QCAT 720

CITATION:

Dinsey v Queensland Building Services Authority [2012] QCAT 720

PARTIES:	Mr Gregory Thomas Dinsey (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

OCR268-11 / OCR289-11 / OCR290-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

13 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for non-publication and closed hearing orders are refused.

CATCHWORDS:

PRACTICE AND PROCEDURE - NON-PUBLICATION ORDER - CLOSED HEARING - principle of open justice - confidential documents - standing to bring application for non-publication order - medical expert - expert report - basis of medical report

Queensland Building Services Authority Act 1991 (Qld), s 56AC
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 66(1)(a)-(c), s 66(2)(d), s 90(2)

Cutbush v Team Maree Property Service (No.3) [2010] QCATA 89
Dasreef Pty Ltd v Hawchar [2011] HCA 21
John Fairfax Publications Pty Ltd v Attorney-General for New South Wales [2000] NSWCA 198
John Fairfax and Sons Ltd v Police Tribunal of New South Wales and Anor (1986) 5 NSWLR 465
Hogan v Hinch [2011] HCA 4
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
McGlen-McLeod v Galloway [2011] NSWDC 163
Russell v Russell [1976] HCA 23
Seven Network (Operations) Ltd v James Warburton (No.1) [2011] NSWSC 385

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

Background

Mr Dinsey is a director of three companies which form part of the Cooroy Mountain Group of companies. There are more companies in the Group.
The companies and the Group generally have experienced financial problems. Liquidators were appointed to Wimmers (NSW) Pty Ltd and Cooroy Mountain Services Pty Ltd on 12 June, 2011, and Administrators to Cooroy Mountain Distribution Pty Ltd on 1 September, 2011.
All such appointments have been determined to be relevant company events under s 56AC of the Queensland Building Services Authority Act 1991 by the Authority. Mr Dinsey applied to the Authority to be a permitted individual for those events. The Authority has refused. Mr Dinsey has therefore applied to QCAT for review of that refusal concerning the three companies.
He has also applied in each proceeding for non-publication orders and a closed hearing. That is the matter now before me for determination on the papers.

Mr Dinsey's Case

Mr Dinsey's claim is twofold. First he seeks pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 non-publication orders relating to his name, the companies, and any identifying information that would reveal information about his identity or that of his companies on the grounds that such revelations would endanger his physical or mental health. Second, he seeks pursuant to ss 66(1)(a)-(b) non-publication orders relating to all financial documentation of the companies within the Cooroy Mountain Group and evidence of the financial circumstances of that Group.
Mr Dinsey also seeks closed hearings pursuant to s 90(2)…

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.

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Details

Case: [2012] QCAT 720
Decision Date

CaseChat Overview and Summary

Mr Gregory Thomas Dinsey, a director of three companies within the Cooroy Mountain Group, sought to challenge the Queensland Building Services Authority's refusal to allow him to be a permitted individual in respect of those companies. He also sought non-publication and closed hearing orders, which were refused. The central legal issues were whether Mr Dinsey could demonstrate a need for non-publication and closed hearing orders, specifically in light of the principle of open justice, and whether he had standing to bring the application.

Mr Dinsey argued that publication of his identity and company information would endanger his physical and mental health and that certain financial documents were confidential. The Authority countered that Mr Dinsey had not substantiated his claims and that he did not have standing to bring the application as the companies were in administration and he had not obtained statements from the administrators or liquidators. Regarding the medical report, the Authority pointed out the lack of detail in Dr Miles' report, and Mr Dinsey's submissions did not sufficiently explain the basis for the assertions made. The court held that Mr Dinsey had not met the high threshold to justify restricting the open justice principle, as the claims lacked sufficient substantiation and the potential negative impacts on Mr Dinsey did not outweigh the public interest in open proceedings.

The court ultimately found that the application for non-publication and closed hearing orders should be refused, as the principle of open justice must be maintained unless there is a clear necessity to depart from it, which Mr Dinsey had not demonstrated. The orders were refused as the court found that the public interest in open justice outweighed Mr Dinsey's claims.

Orders