Murphy v Queensland Building and Construction Commission - [2018] QCAT 11

CITATION:	Murphy & Ors v Queensland Building and Construction Commission [2018] QCAT 11
PARTIES:	John Geoffrey Murphy JM Kelly Builders Pty Ltd Kawana Joinery Co Pty Ltd Burns and Twigg Pty Ltd Bpm Cowlick Pty Ltd (Applicants)
v
Queensland Building and Construction Commission (Respondent)
APPLICATION NUMBERS:	OCR099-16; OCR100-16; OCR101-16; OCR102-16; OCR103-16; OCR104-16; OCR105-16; OCR106-16; OCR107-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Deane
DELIVERED ON:	17 January 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Queensland Building and Construction Commission must file in the Tribunal two (2) copies and provide one (1) copy to the Applicants of a document identifying the relevant page numbers in the further supplementary bundle of documents clarifying the identified diary entries in its letter of 18 December 2017 by 4:00 pm on 25 January 2018. 2. The Application for miscellaneous matters filed 8 December 2017 is otherwise dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – review proceedings – application for directions – whether the respondent is required to specify parts of the applicant’s own diary notes sought to be relied upon by the respondent, the significance of each part identified and identify what part of the original decision-maker’s Reasons the part of the diary note is said to relate to and how – whether required to afford natural justice – whether required under model litigant principles – whether required to identify relevance and significance as a pre-hearing step as distinct from during the hearing Queensland Building and Construction Commission Act (Qld) 1991, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28, s 62 Burke v LFOT Pty Ltd (2002) 209 CLR 282 Kehl v Board of Engineers [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Premier Building & Consulting Pty Ltd v Spotless Group Ltd (no 12) [2007] VSC 377 Queensland Building and Construction Commission v Mudri [2015] QCATA 78 Tepko Pty Ltd v Water Board (2001) 206 CLR 1
APPEARANCES:
APPLICANTS:	John Geoffrey Murphy JM Kelly Builders Pty Ltd Kawana Joinery Co Pty Ltd Burns and Twigg Pty Ltd Bpm Cowlick Pty Ltd
RESPONDENT:	Queensland Building and Construction Commission

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

REPRESENTATIVES:
APPLICANTS:	represented by Tom Sullivan QC and Edward Goodwin of Counsel instructed by Cooper Grace Ward
RESPONDENT:	represented by Richard Schulte of Counsel

REASONS FOR DECISION

Mr Murphy is seeking review of a decision of the Queensland Building and Construction Commission (QBCC) that he is an excluded individual for the purposes of the Queensland Building and Construction Commission Act (Qld) 1991 (QBCC Act). Essentially, the QBCC found that Mr Murphy was an influential person for a construction company[1] that went into liquidation, either at that time[2] or within one year immediately before it did so.
[1]JM Kelly…

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: [2018] QCAT 11
Decision Date: 17 January 2018

CaseChat Overview and Summary

In the matter of Murphy v Queensland Building and Construction Commission, the applicant sought directions from the court regarding the respondent's use of the applicant's diary notes. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary concern was whether the respondent was required to specify parts of the applicant's own diary notes sought to be relied upon by the respondent, the significance of each part identified and identify what part of the original decision-maker’s Reasons the part of the diary note is said to relate to and how. The applicant argued that this requirement was necessary to afford natural justice, adhere to model litigant principles, and identify relevance and significance as a pre-hearing step.

The court considered whether the respondent was obligated to identify and explain the relevance of the diary entries in question before the hearing. The applicant contended that such specificity was essential for fairness and procedural justice, while the respondent maintained that the request was premature and not necessary under the circumstances. The court examined the principles of natural justice and model litigant principles to determine whether these required the respondent to detail the diary entries in the manner sought by the applicant. Ultimately, the court found that while the respondent was not obligated to provide such detailed identification before the hearing, they were required to file a document clarifying the identified diary entries by a specified deadline.

The Queensland Civil and Administrative Tribunal ordered that the Queensland Building and Construction Commission must provide the applicant with a document identifying the relevant page numbers in the further supplementary bundle of documents clarifying the identified diary entries by a certain date. This order aimed to balance the need for procedural fairness with the practicalities of pre-hearing preparation. The tribunal dismissed the rest of the application for miscellaneous matters as it found no basis for the additional relief sought by the applicant.

Orders

Orders of the court

1. The Queensland Building and Construction Commission must file in the Tribunal two (2) copies and provide one (1) copy to the Applicants of a document identifying the relevant page numbers in the further supplementary bundle of documents clarifying the identified diary entries in its letter of 18 December 2017 by 4:00 pm on 25 January 2018.

2. The Application for miscellaneous matters filed 8 December 2017 is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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