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:

1. 

(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

1. 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.

1. 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.

1. 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.

1. 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 prevent exacerbation of cardiac symptoms and possible further hospital admissions.

1. On 16 October 2013, the QBSA’s representative had a telephone conversation with Mr Damien Black, a lawyer acting for Ms Poppenk and Mr Perkins. Following that conversation, the QBSA’s legal representatives wrote to the attention of Mr Black, confirming Mr Black’s advice that Ms Poppenk had lost her license and requested that she and Mr Perkins give evidence by telephone. The correspondence (a copy of which was provided to the Tribunal) pointed out that only the Tribunal could decide whether to allow telephone attendance, but foreshadowed difficulties with this course from QBSA’s perspective. The issue of possible telephone attendance by Mr Perkins was not subsequently raised on his behalf by Ms Poppenk at the hearing on 18 October 2013.

1. The QBSA made an oral application for a warrant to issue to bring Mr Perkins before the Tribunal to give evidence. Mr Macdonald does not oppose the application.

1. Under section 215 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the Tribunal may issue a warrant directed to a police officer to bring a person before the Tribunal to give evidence at a stated time and place. For the section to apply a section 97 notice must have been given requiring a person to attend. The person must not have attended.

1. Section 214 is entitled Offences by witnesses. It provides, among other offences, that a person must not fail, without reasonable excuse to attend as required under a section 97 notice or continue to attend as required by the Tribunal until excused from further attendance. It prescribes a maximum penalty of 100 penalty units.

1. The QBSA submits that Mr Perkins evidence is potentially critical in the case and that it would be prejudiced in presenting its case if Mr Perkins does not attend to give evidence. In essence, Mr Macdonald’s evidence is that he suspended the building works by giving a written notice to Mr Perkins. The contract entitled the builder to suspend the building works in specified circumstances by giving written notice. Unless Mr Perkins gives evidence the QBSA has no opportunity to contradict Mr Macdonald’s evidence. This is directly relevant to the central issue of whether the contract was lawfully terminated by the homeowners.

1. The QBSA submits that the letter from Dr van Heerden is irrelevant to the question of whether a warrant ought be issued. This submission is made on the basis that s 215, unlike s 214 relating to offences, does not refer to reasonable excuse. It argues that a defacto constraint should not be read into s 215.

Should a warrant be issued?

1. A section 97 notice to attend is analogous to a subpoena to give evidence. When a subpoena has been properly served, a person is required to obey it unless it has been set aside. [1] There has been no application by Mr Perkins to have the notice to attend set aside. In the ordinary course, he is therefore required to obey it. This is a useful starting point.

[1]        Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 573-4.

1. Section 215 does not direct the Tribunal to consider any specified criteria in deciding whether to exercise its discretion to issue a warrant. However, it is a discretion which is afforded: s 215 does not require the Tribunal to issue a warrant in the case of non-attendance. Whenever the Tribunal exercises a discretionary power, it is obliged to exercise its discretion judicially, considering whether it is necessary or appropriate to do so in the circumstances. [2] The Tribunal is required to consider relevant factors. 

[2]Moreton Island Development Group v Smith Development Pty Ltd [2012] QCATA 15, especially at [34].

1. The relevant factors include the nature and scope of the dispute and the nature of the evidence the person is likely to give. If the evidence the person might be expected to give is critical, or at least highly significant, in the determination of the case this might be expected to weigh in favour of issue of the warrant. In this case, I must make findings about who terminated the contract in order to make the correct and preferable decision on the review. Whether there was a suspension of the works by the builder is a critical issue. Therefore, the evidence of Mr Perkins is potentially critical. I am satisfied that this factor weighs heavily in favour of issuing the warrant.

1. The Tribunal is also entitled to consider whether it is necessary and appropriate to issue the warrant in the circumstances of the particular person subject to the s 97 notice to attend. It is therefore entitled to consider, if evidence is available which may tend to suggest that it may not be appropriate for a warrant to issue, whether it is necessary and appropriate for a warrant to issue having regard to those circumstances, and weigh it with the other relevant factors in reaching its conclusion. I do not import the words reasonable excuse from s 214, because s 214 is not relevant to the determination of whether to issue a warrant. Section 214 is relevant only to considering whether to impose a penalty for failure to attend.

1. In this case, Dr van Heerden’s report or letter is in vague terms. His or her qualifications are unknown, yet the letter purports to set out expert evidence. That aside, reference in general terms to ‘Cardiac problems’ or symptoms does not indicate diagnosis of a medical condition. The letter does not report any particular diagnosed medical condition. It does not suggest that Mr Perkins condition is likely to be aggravated by attendance at the Tribunal to give evidence, unless it is assumed that Tribunal proceedings are per se stressful events. Again in vague terms, it asks whether it is possible for him to be excused from court (rather than Tribunal) proceedings. It does not state that in the doctor’s professional opinion attendance is potentially seriously deleterious to Mr Perkin’s health. 

1. Further, and inconsistently with there being a serious medical reason why Mr Perkins can not attend, issues about Mr Perkins health were not raised at all, let alone suggested to be of concern, in the conversation between his lawyers and the QBSA’s representative on 16 October 2013. Instead, given that the letter from Dr van Heerden is dated 17 October, 2013, it is reasonable to infer that when the bid to have Mr Perkins attend by telephone was not agreed by the QBSA (which it could not in any event do), only then Mr Perkins took steps to obtain the letter from Dr van Heerden.

1. Given the shortcomings identified in the letter and the sequence of events, I give the report from Dr van Heerden little weight.

1. I am satisfied that the factors considered weigh in favour of issuing a warrant. The proceeding is now listed for further hearing on 30 October 2013 and 30 January 2014. I have directed Mr Perkins attend at the hearing on 30 October 2013. I will issue the warrant, but order that it lie in the registry until the next hearing of the proceeding on 30 October 2013. If Mr Perkins does not voluntarily attend on that day to give evidence, the warrant will be sent to police to bring him before the Tribunal at 259 Queen Street, Brisbane at 9.30am on the 30 January 2014.