King Architectural Engineering Pty Ltd v Queensland Building Services Authority
[2013] QCAT 556
•16 October 2013
| CITATION: | King Architectural Engineering Pty Ltd v Queensland Building Services Authority [2013] QCAT 556 |
| PARTIES: | King Architectural Engineering Pty Ltd (Applicant) |
| V | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR190-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Roney, Member |
| DELIVERED ON: | 16 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application dismissed. 2. King Architectural Pty Ltd must file any costs application within 21 days of today. |
| CATCHWORDS: | REVIEW - APPLICATION TO REOPEN - whether reopening grounds exist – whether substantial injustice if the proceeding were not reopened – whether new evidence Queensland Civil and Administrative Tribunal Act 2009 ss139, 140 |
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
The respondent in the proceedings, the Authority, filed an application to reopen the evidence after the conclusion of the trial but before the decision had been given.
Some of the history of this matter is summarised in the Authority’s submissions received by the Tribunal on 25 July 2013 as follows:
5.The final hearing of the proceedings took place over 3 days, 19 and 20 November 2012 and 29 January 2013.
6. The contest about the scope of works at the hearing turned largely upon the evidence of expert engineers, Mr Eric Fox called on behalf of Mr King and Mr John Van Der Hoef called on behalf of the respondent.
7.Mr Van Der Hoef’s firm NJA Consulting Pty Ltd (NJA) is a member of the panel of engineers appointed by the Authority to provide consulting engineering services.
8.Counsel for the applicant, Mr King, cross examined Mr Van Der Hoef at the hearing with a view to demonstrating that by reason of Mr Van Der Hoef’s asserted “ongoing relationship” with the Authority, he lacked the degree of impartiality expected of an expert witness.
9.The Presiding Member made certain comments at the end of the third day of the hearing, after the evidence had been heard but prior to submissions being made, concerning Mr Van Der Hoef’s evidence. It is submitted that these comments indicate that the Member had, at the very least, formed a preliminary view that Mr Van Der Hoef lacked true impartiality so that the weight to be afforded to his evidence would be effected as a result.
10.The Member’s decision was reserved and the applicant and the respondent then delivered written submissions on 26 February 2013 and 12 April 2013 respectively. Mr Van Der Hoef was subject to trenchant criticism by the applicant’s counsel.
To that history, it should be added that the Authority sought, and was granted, an extension of time to file its written submissions, until 12 April 2013 by reason of then settlement discussions in place.
Next, by letter dated 23 April 2013 to the Registry the Authority asked for the Tribunal to defer delivery of its decision as settlement discussions seemingly had resumed. The letter stated:
We advise that the Authority has today engaged Neil Burnell of Intelara Pty Ltd (Intelara), an independent engineer who is not on the Authority’s panel of engineers, to inspect the property and prepare a report in respect of the subsidence defects at the property.
In this regard, we are informed by Intelara that it will require at least 4 weeks to inspect and prepare a report in respect of the property.
On the basis of the above, the parties have today engaged in further settlement negotiations and are in the process of arranging a settlement meeting in the week commencing 27 May 2013.
The Tribunal, acceded to that request, while irregular, on the basis that genuine settlement discussions were again in train.
The Authority filed the current application on 21 June 2013. A Directions Hearing in respect of it was convened on 26 June 2013 and orders made.
It is in context of that factual backdrop that the current application is to be considered.
Applicable law
Section 139 and 140 of the QCAT Act at part 7 division 7 deal with the circumstances in which the Tribunal may grant a reopening application.
In short a reopening ground must exist and that ground must be appropriately dealt with by way of the procedure of reopening.
A reopening ground exists in 2 scenarios: one where a party did not appear at the hearing and has a reasonable excuse for not attending. Clearly this is not appropriate in this instance. The second ground is where a party would suffer a substantial injustice if the proceeding were not reopened because significant and new evidence has become apparent and that evidence was not readily or reasonably available when the proceeding was first heard and determined.
Clearly the ground relied upon here is the second ground.
The evidence which the Authority relies upon to found this ground is found in the affidavit of Neil Burnell and the affidavit of Robert Monroe.
The evidence, in respect of Burnell, consists of further expert report obtained by the Authority in the form of a building report by Interlara Pty Ltd dated 14 June 2013 and geotechnical report of Douglas Partners dated 6 June 2013.
It was always the position that the Authority could have engaged these experts at any point to provide expert evidence; their evidence is not new in the sense intended by the legislation.
It is simply the case that the Authority as litigant, chose to rely upon the expert evidence of Mr Van Der Hoef, and no other at trial.
It now chooses, seemingly, to make a different decision about the conduct of its case and the evidence it wishes it had called and which it can rely upon. The legislation, in my view, is not designed to accommodate a litigant in adversarial litigation who wishes it had done things differently.
The affidavit of Mr Monroe goes to a different point, I understand it is intended to appeal to the interests of justice argument or the special interest category which indicates that a reopening may be granted if there are broader interests at stake.
In my view there is no wider interest that is discernable here. The Authority is a litigant like any other. Parties appearing against the Authority do not owe it, or others, any ethical or other obligation to give notice of a challenge to a witness on any basis, credit or otherwise.
If the Authority is taken by surprise by the attack upon its expert evidence, it ought not have been.
The challenge to its witness was in my view objectively obvious and one that had to be taken in the proper representation of the applicant.
As the Authority resists the suggestion that the independence of its expert is compromised, the appropriate course is for it to address this topic in its submissions, as it has.
In summary I form the view that the application to reopen to call further evidence is not properly brought by the Authority and I dismiss it.
To do otherwise would invite any party who at the end of submissions had thought that they had not got the point of their case over the line, to reopen their case.
To allow the reopening would result in effect in throwing away costs of the trial to date and embarking on a new trial. Such a course would not be in the interests of justice for either party.
For the reasons I have stated the application does not meet the legislative criteria for reopening and is in my view not to be allowed on a discretionary basis.
Should King Architectural Pty Ltd have any costs application it should file it within 21 days of today.
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