Holley t/as Applied Building Approvals v Queensland Building Services Authority

[2013] QCAT 282

CITATION: Holley t/as Applied Building Approvals v Queensland Building Services Authority [2013] QCAT 282

PARTIES:	Mr Gary John Holley t/as Applied Building Approvals (Applicant)
V
Queensland Building Services Authority (Respondents)

APPLICATION NUMBER: GAR308-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 12 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: Application filed 9 April 2013 is dismissed.

CATCHWORDS:

Production of documents – where production of documents by a party sought under s 63 of the QCAT Act – where the section is confined to non parties.

Queensland Civil and Administrative Tribunal Act s 63

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. On 31 August 2012 the applicant filed an application to review a decision of the respondent that he had engaged in professional misconduct as a certifier.  In a statement filed in support of the application, Mr Holley says that two certificates in Form 16 bearing his stamped signature were provided to the homeowner, Natasha Hayes, without his authority. He says that an employee, Sarah Kerry, applied his stamped signature to those documents, without his authority, and gave them to the homeowner. 

2. The respondent has filed an application seeking orders that Mr Holley produce certain documents which include documents relating to the engagement and discipline or dismissal of Sarah Kerry, office manuals and training documents supplied to her; office manuals training documents instructional material in respect of the use of the rubber stamp and any documents pertained to the creation of the Form 16 dated 29 June 2010 and Form 16 dated 3 March 2011.  The respondent also asked for an order that the applicant provide Sarah Kerry’s last known address and her telephone number or numbers.

3. The Authority has made this application under section 63 of the Queensland Civil and Administrative Tribunal Act 2009. Section 63(1) provides that the tribunal may make an order requiring a person, who is not a party to the proceeding but who has, or is likely to have, in their possession or controlled documents relevant to the proceeding to produce the document. Although the application is made under section 63, the application is made against a party to the proceeding rather than a party who is not a party to the proceeding. Similarly there is no power in section 63 to require Mr Holley to disclose the personal details of Ms Kerry.

4. It follows that the Tribunal has no power under section 63 to order that an applicant to a proceeding produce the documents sought. Perhaps, there is good reason for this because if the applicant is reliant on documents in support of its case that the Tribunal should set aside the respondents decision, it is incumbent upon that party to produce any documents that are relevant to the issues for determination in the proceeding. Similarly, if it is the applicant’s case that the signature on the documents was made without his authority by Ms Kerry, one would reasonably assume that Ms Kerry would be a relevant witness, would provide a statement or be required to attend the hearing to corroborate the evidence of Mr Holley.

5. There is a specific obligation on parties under section 48 of the QCAT Act not to act in a way which unnecessarily disadvantages another party. If Mr Holley is aware of the information sought by the Authority, then that information should be disclosed because obviously, it is relevant to the matters under consideration in the review application and those matters raised specifically in paragraph 3, and in particular paragraphs 3(m) and 3(n) of his statement signed 11 December 2012.

6. As the Tribunal has now power to make the order sought under section 63 the application is dismissed.