Urguhart v Partington (No 2)
[2012] QCAT 371
| CITATION: | Urguhart v Partington and Anor (No 2) [2012] QCAT 371 |
| PARTIES: | John Urguhart t/as Hart Renovations |
| v | |
| Philip Partington Evelyn Partington |
| APPLICATION NUMBER: | BDL072-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 14 August 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for an adjournment is refused. 2. Both parties have leave to be legally represented at the hearing. 3. Until the conclusion of the hearing or further order, the contents of a folder of documents in this proceeding entitled “National Mortgage Market Corporation” not be disclosed to anyone except the Member presiding at the hearing. |
| CATCHWORDS: | BUILDING DISPUTE – ADJOURNMENT – where dispute listed for hearing over 8 months ago – where respondent no longer legally represented – where joint expert report not received – whether grounds for adjournment LEGAL REPRESENTATION – whether complex question of law and fact NON-PUBLICATION – where financial documents obtained from notice to produce – whether grounds for non-publication order Queensland Civil and Administrative Tribunal Act 2009, ss 29, 43, 66 |
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.
REASONS FOR DECISION
On 21 November 2011, this dispute was listed for a five-day hearing commencing 27 August 2012. The only matter outstanding is the delivery of the experts’ joint report.
Mr and Mrs Partington have filed an application to adjourn the hearing and for suppression of certain documents. Mr Urguhart has filed an application to be legally represented.
The application for an adjournment
Mr and Mrs Partington want the hearing adjourned because they have not received a copy of the joint expert report.
The purpose of a joint expert conclave is to produce a joint report that lists and summarises any areas of agreement and any areas of disagreement and the reasons for that disagreement. A joint expert report may shorten a hearing but the absence of such a report will not lengthen a hearing. Mr and Mrs Partington will not have to produce any new, or extra, evidence because they have not received the joint report. There will probably be some areas of disagreement between the experts so they will still have to attend to give evidence. The absence of a joint expert report, while regrettable, does not place Mr and Mrs Partington in any worse position than they were in before the experts’ conclave.
Mr and Mrs Partington say that there are a significant number of points in the joint experts’ report and that it contains pivotal information about defects and costs that they must review before they can prepare for hearing.
Mr and Mrs Partington should not have any knowledge of the contents of the joint experts’ report until it has been released by the tribunal. If the experts have complied with their obligation to the tribunal, the “pivotal information” will be based upon the information the parties have already provided. I do not see how Mr and Mrs Partington can say that they may be taken by surprise by the experts’ conclusions.
Mr and Mrs Partington say they cannot finalise their hearing plan until the receipt of the joint experts report. That is not entirely accurate. They can plan for the worst – assume that everything will be in issue – and hope for the best – that some matters may be conceded or agreed by the experts.
Finally, Mr and Mrs Partington say that they do not have enough time to plan for the hearing. This dispute was listed for hearing in November 2011. Mr and Mrs Partington have had over eight months to prepare for hearing. I understand that they are no longer supported by legal advice. I understand that it is human nature to leave unpleasant tasks to the last possible moment but neither of these factors justify an adjournment of the hearing.
Application for legal representation
Mr Urguhart has applied for leave to be legally represented. Mr and Mrs Partington object, principally on the grounds that they can no longer afford to be similarly represented.
[10]The tribunal can allow legal representation if the interests of justice require it[1]. One of the circumstances supporting the grant of leave is if the proceeding is likely to involve complex questions of fact or law[2]. The tribunal granted leave for both parties to be legally represented on 20 July 2011. Subsequent orders of the tribunal appeared to restrict that leave to appearance at compulsory conferences or directions hearings.
[11]The factors argued in support of the grant of leave in 2011 remain in issue, save that Mr and Mrs Partington no longer press for any relief for duress. Mr Urguhart objects to large parts of Mr and Mrs Partington’s evidence. There appears to be a potential claim for rectification of the contract. The factual matrix appears to be complex and complicated by the parties’ mutual aversion to signed variations. There are 48 pages of alleged defects. I am satisfied that these are complex issues of law and fact and that the tribunal will be assisted by legal representation.
[12]It is unfortunate that Mr and Mrs Partington may not be similarly represented. The tribunal is mindful of its obligation to ensure natural justice is afforded to all parties to the hearing and of its obligations[3] to ensure that Mr and Mrs Partington understand the nature of the case they are required to meet.
[1] Section 43(1) Queensland Civil and Administrative Tribunal Act 2009.
[2] Section 43(3)(b).
[3] Section 29.
Application for “suppression”
[13]The tribunal may restrict publication of documents in limited circumstances[4].
[4] Section 66(2).
[14]The tribunal has a folder of documents in this proceeding entitled “National Mortgage Market Corporation”. The documents were provided to the tribunal in response to a notice to produce.
[15]Mr and Mrs Partington have two complaints about these documents. The first is that the information provided has no bearing on the dispute. That is not a legitimate ground for an order that access to the documents be restricted.
[16]Their second complaint is that there is personal and sensitive material on the file. Mr and Mrs Partington have not identified the specific documents, nor the specific basis of their complaint. I do not know whether they are saying that the disclosure of these documents would interfere with the proper administration of justice or endanger their physical or mental health or offend public decency, would be contrary to public interest or simply not in the interests of justice. In addition, I have not had the benefit of submissions from Mr Urguhart about this application.
[17]However, there are documents on the file relating to the loan application that, while technically meeting the notice to produce, probably should not be part of a public file as they could be put to misuse by others. I will direct that, until the conclusion of the hearing or further order, the contents of that folder not be disclosed to anyone except the Member presiding at the hearing. That Member will be in a better position to determine whether a non-publication order should continue.
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