Martin v Metricon Homes Qld
[2011] QCAT 249
•8 June 2011
| CITATION: | Martin v Metricon Homes Qld [2011] QCAT 249 |
| PARTIES: | Mr Ryan A Martin |
| v | |
| Metricon Homes Qld |
| APPLICATION NUMBER: | BDL276-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 8 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for a notice requiring witness to attend and for the production of documents is refused. |
| CATCHWORDS: | Application for persons to attend and to produce documents – decision on the papers – reasons for decision |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Nil |
| RESPONDENT: | Nil |
REASONS FOR DECISION
This matter has been set down for hearing for 17 June 2011.
In March this year the Applicant forwarded correspondence to the Tribunal seeking the following:
· Request (under section 63 of the QCAT Act) for information required from the Respondent to be supplied to the Applicant.
· Request under section 97 of the QCAT Act for the attendance of persons at the hearing.
I refused that application and the Applicant has requested reasons for that decision.
Background
In his substantial application the Applicant seeks an order from the Tribunal requiring rectification or alleged defective work carried out by the Respondent in the construction of the Applicant’s house.
The Applicant identifies 7 alleged items requiring rectification and sets out the reasons why he maintains the works are defective.
Both the Applicant and Respondent have provided expert evidence in relation to the alleged defective work and the experts have prepared a joint report.
The issue for determination by the Tribunal is whether the identified works are defective as alleged and if so what consequential orders should be made.
The application by the Applicant for production of documents and persons to attend the hearing was not in the form required by the rules however pursuant to section 61 of the QCAT Act I waive the procedural requirement and will treat the application as an application pursuant to section 97 of the QCAT Act requiring witness to attend or produce a document.
The Applicant referred in his application to section 63 of the QCAT Act which provides a procedure for obtaining a document from third parties (namely a person not party to the application).
[10] That is not the relevant section here as he is seeking production of documents from the Respondent.
[11] At a directions hearing on 20 April the Applicant handed up a list of the people he required to attend to give evidence and also the documents he required to be produced.
[12] The Respondent’s representative disagreed that the evidence was relevant and on that basis declined to provide the documents requested and objected to the attendance of the persons at the hearing other than those witnesses who had given statements.
[13] I made an order at that Directions Hearing that the Applicant file further information in relation to his application for witnesses to attend and for documents to be produced identifying the issues in dispute, about which these witnesses could give evidence and about which the requested documents were relevant.
[14] The Applicant filed further material following the Directions Hearing giving further detail as to why he considered the persons and the documents relevant to the proceedings.
[15] The Respondent had responded with written submissions to the first application objecting to the production and the attendance of the witnesses on the basis that neither were relevant to the issues in dispute.
[16] Pursuant to section 97 of the QCAT Act the Tribunal may on written notice require a person to:
a) Attend a hearing of a proceeding to give evidence; or
b) Produce a stated document or other things to the Tribunal.
[17] The Respondent in their submissions in response refer to the Tribunal decision of Kehl v the Board of Professional Engineers Queensland [2010] QCAT 468 and submitted that in accordance with the principles outlined in that decision an application pursuant to section 97 of the QCAT Act:
a) must be issued in respect of a clearly identified individual; and
b) should only be granted in respected individuals whose testimony can or might assist the Tribunal in determination of the matter.
[18] I accept these as appropriate considerations in determining whether to compel a witness to attend or a person to produce documents.
Attendance of persons
[19] The Applicant has requested that the Tribunal direct a number of persons to attend the hearing. The Respondent does not object to those persons attending who have given statements but does object to the remainder as follows:
a) Robert Stuart (brick layer)
[20] The Applicant says that the brick layer can give evidence about how he was instructed to lay the bricks.
[21] I accept the Respondent’s submission that such evidence would not be relevant to the issue of whether or not the brickwork is defective work and if so what order should be made about rectification.
b) Joe Frankland (Construction Manager)
[22] The Applicant says Mr Frankland would be able to give evidence about what instruction he gave to tradesmen to carry out works. Again instructions given to tradesmen are not relevant to whether or not the works are objectively defective.
c) George Kline (license holder of Metricon)
[23] The Applicant concedes that Mr Kline had no input into the particular construction but thinks it is appropriate that the license holder attend and answer any questions relating to the works undertaken.
[24] The Respondent submits that Mr Kline has no specific knowledge of the works carried out.
[25] I do not consider that this person can give any evidence relevant to the issues in dispute.
d) Peter Wall (Site Foreman)
[26] The Applicant says Mr Wall was responsible for the day to day running of the job.
[27] Again I do not consider any evidence that Mr Wall could give would be relevant to whether or not the works are defective.
Production of documents
[28] The Applicant seeks production of the following documents and information which the Respondent opposes on the basis of relevance.
a) Full costing and amount of invoices for the construction of the house
[29] The Applicant says this evidence was relevant to the issue of the costs of rectification of any alleged defective work.
[30] I reject that argument and accept the Respondent’s submission that “the amount which, by contract, the Applicant agreed to pay for the construction of the house and the amount which it actually cost the Applicant to build it, have no bearing on the amount which it may cost a third party to rectify any alleged defecates”.
b) A list of all houses Metricon Homes have constructed that needed infills placed between the head of the window and the bottom of the window lintel
[31] The Applicant wants to find out Metricon’s standard practices when the gauging of the brick work does not meet.
[32] I do not consider that that evidence would be relevant.
c)Total amount of installations that Peter Boyd Enterprises has completed for Metricon Homes Qld
[33] The Applicant is not seeking a production of a particular document or documents but rather information from the Respondent.
[34] He apparently wants to test the independence of Mr Boyd who has provided a report for the Respondent.
[35] If the Respondent intends to rely on the evidence of Mr Boyd then the Respondent will have to ensure that he is present at the hearing for cross examination.
[36] The Applicant will have the opportunity at that time to ask questions of Mr Boyd with respect to his independence.
d) Email correspondence
[37] The Applicant seeks the production of all email correspondence between himself and the Respondent’s construction manager.
[38] The Applicant says he thinks the correspondence will “show problems that were brought up, the time frames and what items were submitted as a variation only after I notified Metricon that the construction did not meet the plan design”.
[39] I accept the Respondent’s submissions that the Applicant has not identified any issue in dispute to which this evidence may relate.
[40] Also the request is too wide. If the Applicant is aware of a particular email or emails that are relevant to issues in dispute he should identify them.
e) DVD containing camera footage recorded on site
[41] This relates to the allegation that the storm water drainage is not installed in accordance with Australian standards.
[42] The Respondent says the footage shows a pipe which has in fact been rectified.
[43] The Applicant says that the Respondent’s expert Mr Nicholas uses the footage as a reference in determining the effectiveness of the system.
[44] I would question the relevance of this DVD if the work that has in fact been rectified. In any event Mr Nicholas should be available for cross examination at the hearing.
Findings
[45] Whilst I understand the Applicant’s view that some of these people may be able to give evidence of the work they did or what communications took place on site and that this may be of interest to the Applicant.
[46] The Tribunal is to determine whether or not the work was defective and if so the appropriate orders with respect to rectification.
[47] There is a joint export report that deals with these issues.
[48] Whilst the Tribunal has an obligation under section 28(3)(e) of the QCAT Act “to ensure, so far as practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant factors”, the Tribunal also has an obligation under section 4 to ensure “proceedings are conducted in an informal way that minimises cost to the parties, and is as quick as is consistent with achieving justice”.
[49] In this instance I do not consider that the evidence sought to be produced by the Applicant through the attendance of the witnesses or the production of documents requested is relevant, nor is it necessary for the Tribunal to be able to decide the proceeding with all relevant facts. If allowed it would in fact lengthen the hearing unnecessarily.
[50] For those reasons the Application was dismissed.
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