Queensland Building Service Authority v Mark Cullinan Consulting Pty Ltd
[2013] QCATA 116
•1 May 2013
| CITATION: | Queensland Building Service Authority v Mark Cullinan Consulting Pty Ltd [2013] QCATA 116 |
| PARTIES: | Queensland Building Service Authority (Applicant/Appellant) |
| V | |
| Mark Cullinan Consulting Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL004 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 24 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 1 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The directions of 22 November 2012 are vacated. 4. The proceeding is listed for a directions hearing on 1 August 2013. |
| CATCHWORDS: | BUILDING – DISCIPLINARY PROCEEDINGS – where QBSA referred disciplinary proceedings to tribunal – where similar proceedings in the Magistrates Court PROCEDURE – where letter requesting adjournment – where no application for adjournment – where no submissions on request for adjournment – where no reasons for decision – where directions made – meaning of “decision” – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act2009 ss 20(2), 21(2), 142(3)(a)(ii), Schedule 3 Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr S Formby, in-house counsel for the Authority |
| RESPONDENT: | Mr A Abaza |
REASONS FOR DECISION
The Queensland Building Service Authority has decided that Mark Cullinan Consulting Pty Ltd is guilty of unsatisfactory conduct. Mark Cullinan has filed an application to review that decision.
The Authority discovered that the Brisbane City Council was prosecuting Mark Cullinan in the Holland Park Magistrates Court. The Authority says that the prosecution is on the same facts as the decision under review, so it asked the Tribunal to adjourn the review proceedings until after the Magistrates Court proceedings were completed. The Tribunal did not grant the adjournment.
The Authority wants to appeal that decision. Its submissions point to a number of reasons why an adjournment should be granted. By implication, I understand the Authority’s argument to be that the learned Senior Member failed to consider properly these matters when coming to his decision.
Mr Abaza, on behalf of Mark Cullinan says that a party cannot appeal a direction of the Tribunal because a direction is not a decision. The Authority correctly points out that the definition of “decision” includes a direction given by the Tribunal.[1] The learned Senior Member refused the adjournment and gave directions. That is a decision that falls within s142(3) of the Queensland Civil and Administrative Tribunal Act2009.
[1] QCAT Act Schedule 3.
Because this is not an appeal from a final decision of the Tribunal, leave is necessary.[2] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appeal tribunal, would be to the public advantage?[6]
[2] QCAT Act s142(3)(a)(ii).
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The learned Senior Member did not give reasons for his decision, and no party has asked from them. I note, too, that the Authority did not file an application for an adjournment, it simply wrote to the Tribunal, and the learned Senior Member did not call for submissions from either party. Because of this non-compliance with procedure, it is appropriate that I grant leave to appeal. With the benefit of submissions, I will consider the substantive issue of whether an adjournment should be granted.
Mr Abaza contests the adjournment on three grounds. Firstly, he says that the request is an abuse of process because the original decision was an abuse of process. He says that the Tribunal has power to make decisions even if criminal action is pending. Finally, he says that the Tribunal must not consider the review on different material that was not produced to Mark Cullinan.
Mr Abaza is mistaken in the view that the Tribunal’s review proceeding is “fixed” or limited by the decision maker’s initial decision. In deciding a review, the Tribunal must hear and decide the issue by way of a fresh hearing on the merits[7]. The Tribunal may receive fresh evidence about the issues, the decision maker may change its position and the Tribunal may make a different decision[8]. None of those factors makes the review an abuse of process. Of course, the Tribunal should not make a decision based on material that one party (or both parties) has not seen and on which there has been no opportunity to comment. The original proceedings are not yet at that point. The Authority is entitled to file an application for an adjournment, even if Mr Abaza thinks the original decision is flawed. There is no other evidence to suggest that the request for an adjournment was an abuse of process.
[7] QCAT Act s 20(2).
[8]See, for example, Iwasaki Sangyo Co (Aus) Pty Ltd v Department of Environment and Resource Management [2011] QCAT 710.
In his oral submissions, Mr Abaza urged me not to grant the adjournment because the Brisbane City Council had failed to provide copies of relevant documents in the Magistrates Court proceedings. I asked Mr Abaza whether these documents might be relevant to the Tribunal proceedings. Mr Abaza told me that his client did not want to wait for those documents and that his client understood that he might not be able to use those documents in the Tribunal if they turned out to be useful.
The Authority submitted that, because it knows these documents exist and they appear to be relevant to the Tribunal’s decision, it has an obligation to produce them. The Authority must provide copies of any document in its control that may be relevant to the Tribunal’s decision.[9] Of course, these documents are not yet in the Authority’s possession or control so it is not yet in breach of its obligation.
[9] QCAT Act s21(2)(b).
Despite Mr Abaza’s assurances, I am reluctant to force a step that would prevent Mark Cullinan from having the opportunity to reflect on the documents produced in the Magistrates Court proceedings and any finding the Magistrate may make. The likely production of new documents is a good reason to grant an adjournment.
The Authority submits that the findings of the Magistrate will inform the Tribunal’s decision and that it is not in any party’s interests to have two proceedings on the same facts running in two different courts. Mr Abaza tells me that the Magistrates Court proceedings are on a different point. Neither party has provided me with a copy of the Magistrates Court complaint but the submissions before me do suggest that the proceedings are interrelated.
Mr Abaza correctly points out that the Tribunal may continue a hearing where there are related criminal proceedings. He is also correct that an adjournment does not sit with the Tribunal’s mandate to hear matters quickly.
The need for speed must be balanced against the need to minimise the cost to the parties. On balance, the objects of the Act are best achieved by an adjournment until the Magistrates Court proceedings are complete. It may be that this proceeding is no longer necessary. It may be that the parties are able to agree facts in light of the Magistrate’s findings which will shorten this proceeding. It is not in the interests of justice to force parties to spend money arguing the same facts and issues twice in different forums.
The directions of 22 November 2012 are set aside and the proceeding is adjourned to a directions hearing on 1 August 2013.
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