Ramke Constructions Pty Ltd v Queensland Building Services Authority (No 1)
[2013] QCAT 574
•13 September 2013
| CITATION: | Ramke Constructions Pty Ltd v Queensland Building Services Authority (No 1) [2013] QCAT 574 |
| PARTIES: | Ramke Constructions Pty Ltd (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR126-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Acting Senior Member |
| DELIVERED ON: | 13 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Ramke Constructions Pty Ltd’s application for adjournment is refused. 2. The Tribunal Hearing listed for 16 September 2013 is confirmed, and shall commence at 10:00am. 3. Leave is refused for the representative of Ramke Constructions Pty Ltd to attend the hearing on 16 September 2013 by telephone. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW - DIRECTION TO RECTIFY BUILDING WORK - where on business day before final hearing the director and representative of the applicant advised the Tribunal of his intention to attend the hearing by telephone Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 |
APPEARANCES and REPRESENTATION (if any):
The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 13 September 2013, I made a decision refusing leave for the representative of Ramke Constructions to attend the hearing of the proceeding on 16 September 2013 by telephone. Reasons for the decision have been requested by Ramke Constructions. It is useful to set out some background and to include reasons for my decision earlier that day to refuse Ramke Constructions application for adjournment of the hearing.
This proceeding involves Ramke Constructions application for review of a decision made by the Queensland Building Services Authority to issue Ramke Constructions with a direction to rectify specified building work done by it. Ramke Constructions filed the application in April 2012. At a directions hearing on 2 May 2013, the application was set down for final hearing on 16 September 2013.
On 22 August 2013, directions were made for QBSA to file any further witness statements and its further building report by 30 August 2013 and for Ramke Constructions to file and serve any further witness statements by 10 September 2013.
Request for adjournment of the hearing made on 13 September
On 13 September 2013 at 9.28am, Mr Simon Ramke, managing director of Ramke Constructions, e-mailed the tribunal registry effectively requesting a 3 week adjournment of the hearing, because he had received documents from the Queensland Building Services Authority (QBSA) on 11 September 2013. He asserted that he therefore did not have adequate time to respond to the statement or to arrange for an independent building inspector to conduct ‘an unbiased report of the project’.
On 11 September 2013, QBSA had provided to the Tribunal a facsimile copy of correspondence forwarded that day to Ramke Constructions to Mr Ramke’s attention. The correspondence refers to Mr Ramke’s e-mail of the previous day (which was not copied to the tribunal registry by either party). The QBSA correspondence enclosed a copy of a statement of Arnold Fisher previously filed in the Tribunal on 30 August 2013, as well as copies of correspondence from QBSA addressed to QCAT and to Ramke Constructions (at the address in Brisbane which is its nominated address in its review application), both dated 30 August 2013.
The letters respectively enclosed Mr Fisher’s statement for filing and serving purposes. The correspondence to Ramke Constructions was addressed to the address nominated by it in its application. The letter of 11 September 2013 confirmed that the letter of 30 August 2013 and enclosure were posted on 30 August to the nominated address.
The witness statement of Mr Fisher filed on 30 August 2013 attached a copy of Mr Fisher’s report dated 17 August 2013 which was prepared following a re-inspection at the premises in respect of which the direction to rectify had been issued. In particular, he opines that 5 of the 52 items which were the subject of the direction to rectify had been rectified. The report indicates that, in his opinion, rectification had not otherwise been completed.
Mr Fisher had also previously inspected the premises and following his earlier inspection produced a report dated 17 February 2012. That report details 68 items the subject of complaint to the QBSA and Mr Fisher’s opinions in respect of them. The direction to rectify was issued based on his opinions. A copy of the initial inspection report was filed in the tribunal by the QBSA with its documents provided in compliance with section 21(2) of the QCAT Act on about 1 August 2012. It was also later filed as an attachment to a witness statement of Mr Fisher filed on 11 March 2013.
Therefore, Ramke Constructions was aware from at the very latest 11 March 2013 that QBSA intended to rely upon that initial building inspection report at hearing. Indeed, it knew the report formed the basis for the issuing of the direction to rectify and was likely to be relied upon from about 1 August 2012. Ramke Constructions could have arranged for an independent building inspection at any time thereafter, and certainly if it intended to do so in the proceedings, by at latest after 11 March 2013. It was directed by the Tribunal on 4 separate occasions to file any witness statements/material it intended to rely upon.
Although the QBSA filed the further building report on 30 August 2013, that report went only to the narrower issue of whether any rectification had been completed, not the broader issue about whether a direction to rectify should issue. Ramke Constructions had not at any earlier time after proceedings commenced obtained a report to address the broader issues about whether there were defective or incomplete building works. Also despite being aware of the further building report since 22 August 2013, it has apparently taken no steps in the intervening period to arrange to obtain a report about any of the issues.
A copy of the further building report was sent to Ramke Constructions on 30 August 2013. It may be that the reason Ramke Constructions did not receive the further building report until 11 September relates to its failure to collect, and or review, its mail in a timely manner. Mail should have been collected promptly after 30 August, in light of the Tribunal’s directions.
Further, and in any event, given the history of the failure of Ramke Constructions to file any building report, an adjournment should not be allowed. Parties have an obligation to take care in their dealings with Tribunal matters and act in their own best interests or accept the consequences of their actions.[1] Given the failure of Ramke Constructions to take any steps to obtain an independent report at any time, there is no basis to now allow additional time, (or to have any confidence that it would do so, at this late stage if an adjournment of 3 weeks was allowed) for a report to be obtained. The application for adjournment should be refused and the hearing on 16 September confirmed.
[1]See for example, Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318.
I issued orders on 13 September 2013 to the effect that the application[2] by Ramke Constructions for adjournment of the hearing was refused and that the hearing was to proceed on 16 September. The file reveals that this direction was e-mailed to both parties at 11.39am on 13 September.
[2]I treated the e-mail as an application although it is not in the proper form.
Request for telephone attendance at hearing
Then at 12.34pm, Mr Ramke again e-mailed the tribunal registry stating: ‘I am not sure what this means however I won’t be attending due to not receiving documentation until 11 September 2013. I will attend by telephone…’. As discussed earlier, Ramke Constructions nominated address in its application is a Brisbane address.
The Notice of Hearing dated 1 August 2013 given to the parties by the Tribunal makes clear, the usual expectation is that parties, their witnesses and their representatives will attend tribunal hearings in person. It advises parties that if any application for remote attendance is made, it must be lodged with the Tribunal at least five working days before the hearing.
Personal attendance of witnesses may assist the tribunal to better assess their credibility. It also allows the tribunal to best monitor that a party understands what is asked of them and their understanding of the proceedings.[3] Mr Ramke is the sole witness for Ramke Constructions: he filed a statement in December 2012. He is a director of Ramke Constructions and has also acted as its representative.
[3]Having regard to the obligations imposed under section 29 of the QCAT Act.
An application for telephone attendance as such was not made. Rather Mr Ramke waited until the business day before the hearing to firstly, allege that he received documents on 11 September and consequently sought an adjournment, and (after he was unsuccessful in that), to secondly, state that he would not personally attend the hearing but would participate by telephone.
I am satisfied that it is more appropriate for Mr Ramke to attend in person. I reach this conclusion having regard to the benefits of personal attendance in the hearing outlined above; the fact that Mr Ramke has been aware of the hearing date since early May 2013; Mr Ramke’s failure to apply to attend by telephone in a timely way and in accordance with the Notice of Hearing; and his failure to provide any reason why telephone attendance was sought; and the nominated address for Ramke Constructions is a Brisbane address.
For completeness, I make the observation that following the issuing of my direction which is the subject of the reasons for decision, Mr Ramke in requesting reasons for decision stated that he is in Melbourne. It was of course open to him to change the nominated address for Ramke Constructions and to advance this as a reason for his request to attend by telephone. However, even if he had made me aware that he was in Melbourne I would have been disinclined to allow telephone attendance at the late stage that it was requested, given that he had known since May that the hearing was scheduled for 16 September; the lateness of the request; and the benefits of personal attendance.
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