Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission (No 2)

[2022] QCAT 189

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor (No 2) [2022] QCAT 189

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

MARK ELLIOT AGUIS

(second respondent)

APPLICATION NO/S:

GAR193-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The strike out application filed on 26 October 2021 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. Mr Aguis evidently has a strong desire to have this proceeding struck out.  Relevantly:

   (a)Mr Aguis filed a strike out application on 3 November 2020. 

   (b)Mr Aguis filed another strike out application on 23 February 2021.

   (c)Both strike out applications were dismissed on 11 May 2021.

2. Mr Aguis subsequently filed another strike out application on 26 October 2021, which is currently before me.

The current strike out application

1. Mr Aguis’ current complaint is that Gedoun Constructions Pty Ltd (‘Gedoun’) was late in filing its evidence.

2. Relevantly:

   (a)On 3 June 2021, the Tribunal directed Mr Aguis to file his evidence by 2 July 2021, and Gedoun to file its evidence by 30 July 2021.

   (b)On 7 July 2021, Mr Aguis requested a two week extension for the filing of his evidence.

   (c)On 8 July 2021, Gedoun consented to the extension, but requested an extension until late October 2021.  The extension was requested on the basis that Gedoun’s lawyer had previously advised of his unavailability in the second half of August and all of September.  Mr Aguis did not agree to this extension, and proposed that Gedoun file its evidence by 16 August 2021.

   (d)On 30 August 2021, Gedoun filed an application for miscellaneous matters seeking an extension until 13 September 2021.

   (e)On 23 September 2021, the Tribunal directed that Gedoun file its evidence by 22 October 2021.

   (f)On 26 October 2021, Gedoun filed its evidence.

The power to strike out

1. The power to strike out in these circumstances is contained in s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), which relevantly provides:

   48 Dismissing, striking out or deciding if party causing disadvantage

   (1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—

   (a) not complying with a tribunal order or direction without reasonable excuse; or

   (b) not complying with this Act, an enabling Act or the rules; or

   (c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or

   (d) causing an adjournment; or

   (e) attempting to deceive another party or the tribunal; or

   (f) vexatiously conducting the proceeding; or

   (g) failing to attend mediation or the hearing of the proceeding without reasonable excuse.

Consideration

1. As set out above, Mr Aguis’ current strike out application is premised on Gedoun being four days late in filing its evidence. 

2. The filing of strike out applications in these circumstances is to be strongly discouraged.  Striking out a proceeding is a step not lightly taken by the Tribunal.  The Tribunal expects compliance with its directions, but a failure to comply with a direction by a matter of a few days is not a proper basis for the striking out of proceedings.

3. With the greatest of respect to Mr Aguis, my review of the file suggests that the principal cause of delay in progressing this proceeding is the repeated filing of strike out applications by Mr Aguis, which have been found to be baseless.

Disposition

1. Accordingly, the strike out application filed on 26 October 2021 is dismissed.