Thomas v Neilson

CITATION:

Thomas v Neilson [2011] QCAT 471

PARTIES:	Mr Kevin Thomas
v
Ms Pamela Neilson

APPLICATION NUMBER:

BDL373-10

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

11 October 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Ms Nielson shall file two copies in the Tribunal and give one copy to Mr Thomas of the following documents which will be provided in a page numbered bundle together with an index by 4pm on 4 November 2011:

a. In relation to Ms Nielson’s dealings with other tradesmen and suppliers engaged directly by Ms Nielson in respect of the Site all:

i. Quotes

ii. Invoices

iii. Receipts

iv. Plans

v. Approvals

vi. Certificates

vii. Contracts

viii. Emails

ix. Evidence of payment

x. Other correspondence between Ms Nielson and the tradesmen/suppliers

xi. Documents relating to other QCAT proceedings, including all evidence and correspondence between the parties to those proceedings and QCAT.

b. correspondence from the Foreign Review Board.

CATCHWORDS:

Production of documents – relevance

Queensland Civil and Administrative Tribunal Act 2009 ss 28, 62

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Background

Mr Thomas, a builder, has applied to the Tribunal for orders that Ms Nielson pay amounts claimed to be owing pursuant to a contract for building work at premises at 15 Anchorage Drive, Cleveland (the Site).

Ms Nielson has denied that any amount is owing on various bases and has counterclaimed for defective work.

The claim and counterclaim are to be heard by the Tribunal on 2 February 2012.

Mr Thomas has filed an Application for a Miscellaneous Matter on 18 August 2011 seeking an order that Ms Nielson produce certain documents (the Application).

On 22 August 2011 the Tribunal directed that Ms Nielson file in the Tribunal and give to Mr Thomas a copy of her submissions in response to the Application by 4pm 5 September 2011 and that the matter would be determined on the papers.

On 14 September 2011 the Tribunal ordered that as Ms Nielson had not complied with the 22 August direction that the Application be determined on the basis of the material filed to date.

Mr Thomas has referred to section 64 of the QCAT Act as providing the power to make the directions sought. This appears to be an error.

Section 62 provides the Tribunal with power to make directions and do whatever is necessary for the speedy and fair conduct of the proceeding.[1] It specifically provides that the Tribunal may give a direction requiring a party to the proceeding to produce a document or provide information to the Tribunal or another party.[2]
[1] Section 62(1) QCAT Act 2009.
[2] Section 62(3) QCAT Act 2009.

Section 28 of the QCAT Act requires that the Tribunal must act fairly, must act in accordance with the substantial merits of the case, must observe the rules of natural justice, must act with as little formality and technicality as proper consideration of the issues permit, and must ensure that all relevant material is disclosed as far as is practical.

[10] The rules of court in Queensland restrict the obligation of disclosure to documents having a direct relevance to an allegation in issue on the pleadings or a matter in issue in the proceedings.[3] This is consistent with the Tribunal’s duty to ensure, so far as practicable, that all relevant material is disclosed.

Discussion and Decision

[3]Uniform Civil Procedure Rules 1999, r 211(1)(b); Mercantile Mutual Custodians Pty Ltd v Village/Nine Networks Restaurants & Bars Pty Ltd [1999] QCA 276 at [7]-[8].

[11] The parties have filed and served statements of evidence.

[12] There is evidence before the Tribunal that Ms Nielson directly engaged a number of contractors to perform work at the Site at or about the time Mr Thomas was performing work at the Site.

[13] Mr Thomas contends that Ms Nielson:

a)is attempting to blame him for work performed by others at Ms Nielson’s direction.
b)was effectively an owner builder, had control of the Site and responsible for accepting prior work when directing that following work be performed.

[14] Ms Nielson appears to dispute these contentions.

[15] In relation to Ms Nielson’s dealings with other tradesmen and suppliers engaged directly by Ms Nielson in respect of the Site Mr Thomas seeks production of all:

a)Quotes
b)Invoices
c)Receipts
d)Plans
e)Approvals
f)Certificates
g)Contracts
h)Emails

Evidence of payment

j)Other correspondence between Ms Nielson and the tradesmen/suppliers
k)Documents relating to other QCAT proceedings, including all evidence and correspondence between the parties to those proceedings and QCAT.

[16] Mr Thomas contends that Ms Nielson gave various reasons for non payment of amounts claimed by him, including that money from overseas was being held up by the Foreign Review Board prior to claiming that his work was defective. Mr Thomas seeks production of correspondence from the Foreign Review Board.

[17] In the absence of any submissions by Ms Nielson opposing the orders sought and in reliance upon a brief review of the application, response and/or counterclaim and statements of evidence in this proceeding I am satisfied that Ms Nielson is likely to hold documents of the nature sought and the documents requested may be directly relevant to issues in dispute and potentially relevant to Ms Nielson’s credibility.

[18] I allow the Application.

Order

Ms Nielson shall file two copies in the Tribunal and give one copy to Mr Thomas of the following documents which will be provided in a page numbered bundle together with an index by:
4pm on 4 November 2011.

(a)In relation to Ms Nielson’s dealings with other tradesmen and suppliers engaged directly by Ms Nielson in respect of the Site all:

(i)Quotes
(ii)Invoices
(iii)Receipts
(iv)Plans
(v)Approvals
(vi)Certificates
(vii)Contracts
(viii)Emails
(ix)Evidence of payment
(x)Other correspondence between Ms Nielson and the tradesmen/suppliers
(xi)Documents relating to other QCAT proceedings, including all evidence and correspondence between the parties to those proceedings and QCAT.

(b)correspondence from the Foreign Review Board.

The proceedings between Thomas and Nielson were heard in the Queensland Civil and Administrative Tribunal. The central issue in this matter was the requirement for Nielson to produce various documents relating to her dealings with tradesmen and suppliers, as well as correspondence from the Foreign Review Board. Thomas sought these documents as part of the litigation process, claiming they were relevant to the matters in dispute.

The legal issue before the Tribunal was whether Nielson was obligated to produce the specified documents. Nielson contested the production of certain documents on the grounds of relevance and proportionality. The Tribunal assessed the relevance and proportionality of the documents in question, ultimately determining that Nielson was required to produce the documents as ordered. The Tribunal found that the documents were indeed relevant to the proceedings and that the burden of producing them was justified under the circumstances.

In its decision, the Tribunal ordered Nielson to provide two copies of the specified documents to the Tribunal and one copy to Thomas by a specified deadline. The documents included quotes, invoices, receipts, plans, approvals, certificates, contracts, emails, evidence of payment, other correspondence, and documents relating to other QCAT proceedings. The order also required Nielson to provide correspondence from the Foreign Review Board. This order was made to ensure transparency and fairness in the proceedings, allowing both parties to adequately prepare their cases.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established