MacDonald v Queensland Building Services Authority - [2013] QCAT 572

CITATION:

MacDonald v Queensland Building Services Authority [2013] QCAT 572

PARTIES:	Jonathon Stewart MacDonald (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR019-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

22 October 2013

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

22 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

(i) That a Warrant issue under s.215 of the Queensland Civil and Administration Act 2009, directing a police officer to bring Wesley John Perkins to Level 10, Bank of Queensland Building, 259 Queen Street, Brisbane at 9:30am on 30 January 2014 to give evidence in the proceeding before the Tribunal.

(ii) That the Warrant lie in the registry until 9:30am on 30 October 2013.

CATCHWORDS:

WARRANT-NOTICE TO ATTEND AND PRODUCE DOCUMENTS- where person failed to attend to give evidence on two occasions as required by the notice to attend issued by Tribunal- factors relevant to exercise of discretion to issue a warrant- whether necessary and appropriate

Queensland Civil and Administrative Tribunal Act 2009 ss 214, 215

Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr MacDonald represented himself.

RESPONDENT:

Mr B S Turnbull of HWL Ebsworth Lawyers represented the Queensland Building Services Authority

REASONS FOR DECISION

Mr Macdonald is a builder. He entered into a domestic building contract with Gail Poppenk and Wesley Perkins (the homeowners) for the construction of a house at their Helidon property. The building works did not proceed smoothly as between Mr Macdonald and the homeowners.

The homeowners made a claim through the Queensland Building Services Authority (QBSA) under the statutory insurance scheme. The QBSA made a decision that the homeowners lawfully terminated the contract upon the builder’s default. Mr Macdonald has sought review by the Tribunal of the QBSA’s decision.

Following a request from the QBSA, the Tribunal issued notices under s 97 of the QCAT Act requiring Ms Poppenk and Mr Perkins to attend the hearing on 24 July 2013 to give evidence and produce documents. They were further directed to attend at the hearing on 18 October 2013. Ms Poppenk attended, produced documents and gave evidence. Mr Perkins did not attend on either of these occasions. Ms Poppenk proffered a letter on letterhead from Withcott Medical Centre on Mr Perkins behalf when she attended on 18 October.

The letter, signed by a Dr Janus van Heerden, is dated 17 October 2013. Dr van Heerden’s qualifications are not stated. Although he or she prefaces his or her name with Dr, he or she does not then follow his or her name with the usual abbreviations indicating medical qualifications. It is addressed to Whom it may concern. It states that Mr Perkins has developed cardiac problems during the last 6 months. The symptoms, he or she says are aggravated by stress full (sic) events. It asks whether it is possible to excuse him (Mr Perkins) from court proceedings to…

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: [2013] QCAT 572
Decision Date

CaseChat Overview and Summary

In MacDonald v Queensland Building Services Authority, the applicant, Jonathon Stewart MacDonald, sought review of a decision by the Queensland Building Services Authority (QBSA) that homeowners lawfully terminated a domestic building contract upon the builder’s default. The dispute centred on whether the evidence of Wesley John Perkins, one of the homeowners, was critical to the resolution of the case. Perkins had failed to attend the Tribunal to give evidence on two occasions as required by a notice to attend. The Tribunal was required to determine whether it was necessary and appropriate to issue a warrant under section 215 of the Queensland Civil and Administrative Tribunal Act 2009 to compel Perkins' attendance.

The key legal issue was whether the Tribunal should exercise its discretion to issue a warrant to compel Perkins' attendance to give evidence. The QBSA argued that Perkins' evidence was potentially critical in the case and that it would be prejudiced if he did not attend. MacDonald did not oppose the application. The Tribunal considered whether the evidence Perkins might be expected to give was critical, or at least highly significant, in the determination of the case, and whether it was necessary and appropriate to issue the warrant having regard to the circumstances of the particular person. The Tribunal found that Perkins' evidence was potentially critical as it was relevant to whether the contract was lawfully terminated by the homeowners. The Tribunal gave little weight to a letter from Dr van Heerden purporting to set out expert evidence as it was in vague terms and inconsistent with earlier events.

The Tribunal concluded that the relevant factors weighed in favour of issuing the warrant. It issued a warrant under section 215 of the QCAT Act, directing a police officer to bring Perkins to the Tribunal to give evidence on specified dates. The warrant was to lie in the registry until the next hearing of the proceeding on 30 October 2013, and if Perkins did not voluntarily attend on that day to give evidence, the warrant would be sent to police to bring him before the Tribunal on 30 January 2014.

Orders