Smith v Queensland Building Services Authority

[2011] QCAT 66

CITATION:		Smith v Queensland Building Services Authority [2011] QCAT 66
PARTIES:	Mr Daniel John Smith
v
Queensland Building Services Authority

APPLICATION NUMBER:   OCR251-10  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 24 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

The application is adjourned to 24 March 2011 for further consideration on the papers. If the applicant files no further material by 24 March 2011, the application is dismissed.

CATCHWORDS :  Notice to produce – where Authority refused application for permitted individual – where application that accountants produce documents – where scope of documents sought very wide – where nexus between accountants and applicant not established – where relevance of documents not established – where issue of cost of producing documents not addressed

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Sawford Lawyers
RESPONDENT:	Mr B Cole, in house legal counsel

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Smith has applied for a review of the Authority’s decision to refuse to categorise him as a permitted individual.  He was a director of DJ Smith Constructions Pty Ltd, now in liquidation.

2. Mr Smith has applied for a notice to be issued on Synergy Accountants, requiring the firm to produce:

a)“all books, records, financial documents, profit and loss statements and any other documents in relation to DJ Smith Constructions Pty Ltd (in liquidation)”; and

b)“all books and records, financial documents, profit and loss statements and any other documents in relation to Daniel John Smith.”

1. Section 63(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides:

   The tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or other thing relevant to the proceeding to produce the document or thing.

2. The tribunal has no information before it that even suggests, let alone confirms, that Synergy Accountants hold the material requested.

3. The tribunal has no information about the relationship between Synergy Accountants, Mr Smith and DJ Smith Constructions.  It does not know whether Synergy Accountants are the liquidators of the company or the former accountants for the company and/or Mr Smith.

4. The tribunal has no information about how such a broad suite of documents is relevant to Mr Smith’s application. Section 56AD(8A) of the Queensland Building Services Authority Act 1991 sets out the matters that the Authority must consider when determining an application for a permitted individual. Mr Smith has not yet directed the tribunal’s attention to any of these matters nor has he told the tribunal how all of these documents are going to be relevant to the proceedings. Section 63(1) does not, on any reading, authorise a fishing expedition.

5. Section 63(4) of the QCAT Act states that, in making an order for production of documents, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the documents. It seems to me that the tribunal cannot comply with its obligation under s 63(4) unless and until Mr Smith has communicated with Synergy Accountants, ascertained whether the documents are readily available and, if so, what costs are involved in their retrieval. I do not think that a party should have resort to an application for a notice under s 63(1) unless and until it has exhausted all other means of obtaining the documents.

6. The application is premature.  I adjourn it for a period of 28 days to enable Mr Smith to consider his options.  If no further material is filed by 24 March 2011, the application will be dismissed.