Durham v Adjudicator Registrar - [2014] QCAT 666

CITATION:

Durham v Adjudicator Registrar [2014] QCAT 666

PARTIES:	Helen Durham (Applicant)
v
Adjudicator Registrar (Respondent)

APPLICATION NUMBER:

GAR340-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

11 December 2014

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Adjudicator Registrar must file two (2) copies in the Tribunal and serve one (1) copy on Helen Durham the following documents by 4:00pm on 16 January 2015:

a. Notes of the consultations undertaken by the registry subsequent to the release of the Wallace Report.

b. Any template or proforma correspondence provided to course participants in relation to training.

2. Helen Durham’s application for production of documents relating to legal advice obtained by the Adjudicator Registrar referred to in Annexure ‘A’, Part 1, paragraph 3 is refused.

3. Helen Durham’s application for the production of information referred to in Annexure ‘A’, Part 2 is refused.

CATCHWORDS:

Production of documents – relevance – waiver of privilege

Building and Construction Industry Payments Act 2004 (Qld) s 65, s 97
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 20, s 21, s 24, s 62

Balnaves v Smith & Anor [2008] QSC 215, cited
Osland v Secretary to the Department of Justice [2008] HCA 37, cited

APPEARANCES:

APPLICANT:

Helen Durham by telephone

RESPONDENT:

Adjudicator Registrar represented by Mr Peter Franco QC of counsel instructed by Holding Redlich

REASONS FOR DECISION

Ms Durham has filed an application to review a decision made by the Adjudicator Registrar to impose mandatory transitionary training conditions on her adjudication registration.[1]
[1]Application to review filed 23 October 2014 to review the decision made by the Adjudicator Registrar on 24 September 2014.
The Tribunal in exercising its review function must determine the reasonableness of the training conditions imposed that are for the purposes of s 65(1)(b) of the Building and Construction Industry Payments Act 2004 (Qld) (‘B&CIP Act’) considered to be ‘appropriate to give effect to [the] Act’.
The Tribunal in reviewing the decision must produce the correct and preferable decision and must hear and decide the review by way of a ‘fresh hearing on the merits’.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20.
The Adjudicator Registrar as the decision-maker has a duty to ‘help the Tribunal’ so that it can make its own decision on review.[3]
[3]QCAT Act s 21.
Material has been provided to the Tribunal as required under s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), including a written statement of reasons and documents that ‘may be relevant to the Tribunal’s review of the decision’.[4]
[4]Ibid.
Ms Durham has filed an application for the production of documents by the Adjudicator Registrar including notes of consultations, training materials, legal advice and information.[5]
[5]Application for Miscellaneous Matters filed 1 December 2014.
The Adjudicator Registrar has agreed to produce some of the documents.[6] The remaining documents and…

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.

Continue reading Durham v Adjudicator Registrar

Details

AGLC: Durham v Adjudicator Registrar [2014] QCAT 666
Case: [2014] QCAT 666
Decision Date: 19 December 2014

CaseChat Overview and Summary

Durham v Adjudicator Registrar involved Helen Durham, the plaintiff, and the Adjudicator Registrar, the defendant. The primary dispute in this case was related to the production of certain documents and information in connection with legal advice obtained by the Adjudicator Registrar. The case was heard in the Federal Court of Australia.

The court had to address several legal issues, including the relevance of the documents requested by the plaintiff and whether the privilege claimed by the defendant over certain documents was valid and applicable. Specifically, the court needed to determine if the notes of consultations and any template or proforma correspondence provided to course participants were relevant to the case and if the privilege over the legal advice obtained by the Adjudicator Registrar should be waived.

The court ruled that the notes of consultations and any template or proforma correspondence provided to course participants were relevant to the case and must be produced. However, the court found that the privilege over the legal advice obtained by the Adjudicator Registrar was valid, and therefore, the plaintiff's application for the production of such information was refused. Consequently, the Adjudicator Registrar was ordered to file two copies in the Tribunal and serve one copy on Helen Durham by 4:00pm on 16 January 2015. The court also dismissed the plaintiff's application for the production of information referred to in Annexure ‘A’, Part 2.

Orders

Orders of the court

1. The Adjudicator Registrar must file two (2) copies in the Tribunal and serve one (1) copy on Helen Durham the following documents by 4:00pm on 16 January 2015:

a. Notes of the consultations undertaken by the registry subsequent to the release of the Wallace Report.

b. Any template or proforma correspondence provided to course participants in relation to training.

2. Helen Durham’s application for production of documents relating to legal advice obtained by the Adjudicator Registrar referred to in Annexure ‘A’, Part 1, paragraph 3 is refused.

3. Helen Durham’s application for the production of information referred to in Annexure ‘A’, Part 2 is refused.

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.