Duffy v Body Corporate for Park Square [2025] QCATA 22

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Duffy v Body Corporate for Park Square [2025] QCATA 22 PARTIES: MARIA ROSA ARCURI DE DUFFY (appellant) v THE BODY CORPORATE FOR PARK SQUARE (respondent) APPLICATION NO/S: APL029-23 MATTER TYPE: Appeals DELIVERED ON: 27 February 2025 HEARING DATE: 20 January 2025 HEARD AT: Brisbane DECISION OF: Member Roney KC ORDERS: The appeal is dismissed. I grant liberty to apply in respect of the costs of the appeal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law in ordering an application be dismissed as vexatious, misconceived and without substance APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – BODY CORPORATE AND COMMUNITY MANAGEMENT – Adjudicator’s investigation – extent of obligation to investigate matter – whether failed properly to investigate or make enquiries of a party Body Corporate Community Management Act 1997 (Qld), s 269, s 270(1)(c), s 276, s 289, s 290 Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 (Qld) -- 1 of 16 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 Enfield City Corporation v Development Assessment commission (2000) 199 CLR 135 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Hablethwaite v Andrijevic [2005] QCA 336 Kioa v West (1985) 159 CLR 550 Kranjcic & Anor v Payyappilly [2014] QCATA 324 Park Square [2023] QBCCMCmr 7 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background [1] The appellant is the owner of Lot 16 in a development called Park Square, which was established in September 2002. It comprises 16 lots in seven 2-storey buildings, in a building format plan of subdivision. [2] The appellant brought an application before the Office of the Commissioner for Body Corporate and Community Management alleging that the respondent body corporate had acted improperly in a multiplicity of ways including in ways that went to the validity of the 2021 AGM, responsibility for maintenance (fence and gate repairs, pest control, utility infrastructure), sinking fund contributions, expenditure on legal fees, the adequacy of the scheme’s insurance and alleged breaches of parking by-laws. [3] Section 270(1)(c) of the Body Corporate Community Management Act 1997 (Qld) (‘the BCCM Act’) provides an Adjudicator with the power to dismiss an application if satisfied that the application is frivolous, vexatious, misconceived or without substance. Where such an application is dismissed on that basis, an Adjudicator can award costs incurred by a respondent in defending the application up to $2,000. [4] The Adjudicator ruled that her application be dismissed on the basis that it was vexatious, misconceived and without substance. He ordered that within 14 days, the applicant was to pay the Body Corporate for Park Square $2,000 in costs. The appellant appealed that decision to this Tribunal. [5] Before the Office of the Commissioner the appellant sought 12 orders all of which were refused: (a) That the body corporate declares invalid the 2021 AGM agenda prepared by the secretary for being a fraud. -- 2 of 16 -- 3 (b) That the body corporate refund the unused sinking fund and not raise sinking fund levies for that present financial year according to Covid emergency amended legislation. (c) That the body corporate not charge penalties for late levy payments and not proceed with debt recovery according to Covid emergency amended legislation. (d) That the body corporate recovers the money spent with its lawyers and an entity Rubicon to carry out acts against that legislation as a debt. (e) That the body corporate force the committee members to present invoices for each work carried out in their units in the last three years. (f) That the body corporate removes four members from the committee for breaching the code of conduct and being involved in serious matters as missing, stolen or fraudulently disposing of money. (g) That the body corporate requests one owner to control his tenants and issue a contravention notice for breach of parking by-law since January 2020. (h) That the body corporate reimburses her the amount of $697.29 for air conditioning repairs due to damage on the side wall caused by black ants and roach infestation. (i) That the body corporate reimburse her the amounts of $66 and $390.50 for fence and gate repairs. (j) That the body corporate request the committee members to renew the strata insurance that includes flood cover at their own cost and at their own expenses. (k) That the body corporate publish in a publication the 2022 Rubicon service contract signed by the committee. (l) That the body corporate reimburses her for the expenses associated with that Adjudication. [6] The Adjudicator described her allegations broadly as that she has been ‘robbed’ of six levy payments, declared ‘unfinancial’ and unable to vote at general meetings and that the financial statements had been ‘adulterated’. She complained about the body corporate manger and the committee, citing events as far back as 2013. She claimed she was ‘in a Mafia environment’. [7] The Adjudicator found as follows; This application has been brought by an owner-occupier whose communications with the body corporate have previously been described by an Adjudicator of this Office as discourteous, demanding, abusive, threatening, belligerent, argumentative, voluminous and frequent. The applicant has previously been ordered to cease this style of communication and to only communicate with the body corporate under stringent requirements. The applicant has failed to comply with that order. The applicant’s submissions in support of this dispute resolution application are a continuation of the consistent and regular abuse that the respondent, the committee and body corporate manager are exposed to. -- 3 of 16 -- 4 The applicant makes no coherent arguments and seeks orders that are unsupported by the submissions. The respondent is again forced to respond to unfounded claims and lengthy submissions spanning over 20 pages, which follow no logical train of thought and include matters previously raised by her in dispute resolution application reference 0011-2019 which was wholly dismissed as being vexatious, misconceived and without substance. This application is no different. It is vexatious, misconceived and without substance and ought to be dismissed with a costs order in the maximum amount made against the applicant. Throughout her submissions, the applicant makes serious and unfounded allegations against the committee and the respondent’s body corporate manager, including that the committee and the body corporate manager: a) are involved in fraudulent behaviours and activity; b) have breached the code of conduct; c) have ‘robbed’ the applicant; d) are criminals; e) are ‘thugs’; f) have falsified documents and lied to the Court; g) are dangerous; and h) are engaging in ‘Mafia’ behaviours. These are serious allegations that have been made by the applicant without evidence. The respondent rejects these allegations and objects to the applicant being permitted to bring an application that is discourteous, disparaging and offensive. [8] The Adjudicator later described the history between her and this Body Corporate and earlier applications she had brought. The Adjudicator found as follows; This is the 5th adjudication application lodged by the applicant, excluding 3 that were rejected. In 2016 an Adjudicator dismissed an application disputing two motions, concluding she had provided no evidence or argument to substantiate her claims. The applicant was alerted to the lack of evidence in a subsequent application for interim orders when it was dismissed. When the applicant proceeded with her application for final orders in that matter, despite providing no further evidence, the application was dismissed and the applicant was required to pay $2,000 in costs. The Adjudicator commented that the applicant’s “…continuation of an application without substance, relying solely on her own theories and suspicions, was bound to fail.” As with her previous applications, the applicant has again failed to provide a discernible legal issue for several of the matters raised. Her arguments were so poorly presented and articulated that they were very difficult to understand. The applicant’s failure to communicate appropriately with the body corporate and in accordance with an order from this Office1, means she has failed to make 1 Park Square [2019] QBCCMCmr 242. -- 4 of 16 -- 5 reasonable attempts to resolve her concerns with the body corporate, as the legislation required. This is an abuse of process. The applicant has been warned that she exposed herself to similar costs orders in future if she persisted in lodging adjudication applications where she has not made appropriate attempts to resolve the dispute directly, has failed to articulate a genuine legal issue, or has failed to substantiate her claims. And yet, as the Adjudicator noted in application 0011-2019, here we are again. The applicant has again failed to communicate appropriately with the body corporate in accordance with its communication protocols and has failed to make reasonable attempts to resolve her concerns with the body corporate. For the reasons submitted by the body corporate, outlined above, I am not satisfied the applicant has demonstrated that the body corporate has failed to meet its statutory obligations on any of the issues she has raised or that any orders are warranted against the body corporate. I consider the application is so lacking in merit and compliance with due process that it should be dismissed as vexatious, misconceived and without substance. Given the circumstances, I have determined that it is appropriate to order the applicant to pay the body corporate the amount of $2,000 in partial compensation for the costs it has incurred in responding to this application. (Footnotes omitted) [9] The decision of the Adjudicator was given under s 276 of the BCCM Act. Section 276 provides as follows: 276 Orders of adjudicators (1) An Adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about— (a) a claimed or anticipated contravention of this Act or the community management statement; or (b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or (c) a claimed or anticipated contractual matter about— (i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or (ii) the authorisation of a person as a letting agent for a community titles scheme. (2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order. (3) Without limiting subsections (1) and (2), the Adjudicator may make an order mentioned in schedule 5. (4) An order appointing an administrator— (a) may be the only order the Adjudicator makes for an application; or -- 5 of 16 -- 6 (b) may be made to assist the enforcement of another order made for the application. (5) If the Adjudicator makes a consent order, the order— (a) may include only matters that may be dealt with under this Act; and (b) must not include matters that are inconsistent with this Act or another Act. [10] The appeal to this Tribunal is governed by s 289 of the BCCM Act, which provides: 289 Right to appeal to appeal tribunal (1) This section applies if— (a) an application is made under this chapter; and (b) an Adjudicator makes an order for the application (other than a consent order); and (c) a person (the aggrieved person) is aggrieved by the order; and (d) the aggrieved person is— (i) for an order that is a decision mentioned in section 288A, definition order—an applicant; or (ii) for another order— (A) an applicant; or (B) a respondent to the application; or (C) the body corporate for the community titles scheme; or (D) a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or (E) an affected person for an application mentioned in section 243A; or (F) a person not otherwise mentioned in this subparagraph against whom the order is made. (2) The aggrieved person may appeal to the appeal tribunal, but only on a question of law. [11] Section 290 of the BCCM Act provides: 290 Appeal (1) An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against. (2) If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following— (a) the application for which the Adjudicator's order was made; -- 6 of 16 -- 7 (b) the Adjudicator's order; (c) the Adjudicator's reasons; (d) other materials in the Adjudicator's possession relevant to the order. (3) When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal. (4) The commissioner must forward to the Adjudicator all material the Adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal. [12] Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides: 146 Deciding appeal on question of law only In deciding an appeal against a decision on a question of law only, the appeal tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration— (i) with or without the hearing of additional evidence as directed by the appeal tribunal; and (ii) with the other directions the appeal tribunal considers appropriate; or (d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c) [13] Hence, pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter. [14] The appellant has appealed the decision of Adjudicator Schmidt on various bases which I set out verbatim because they are open to interpretation as to what in fact each ground is, and moreover patently fail to identify the error of law contended for or even reference errors of law; (a) Irrational decision, not based on logical reasons (by stating l sent an illegible Form1 without any proof based on hearsay). (b) The Adjudicator acted against Covid amended legislation that was put in place to help owners and not to destroy them as it happened with a young family was the. second victim. With his or her decision more pain and suffering was inflicted to me. (c) The Adjudicator gave the green light to the committee (one on site and 3 investors 2 outside QLD) Rubicon and Grace Lawyers to continue-the abuse. (lack of maintenance stealing of correspondence my missing levy payments and /or double charge with penalty, harassment, adulteration of the statement of account certified by the same auditor year after year. -- 7 of 16 -- 8 (d) Silva's tenant breaching the parking bylaw since 3 years and even intimidating me over two years ago (never walkedt the complex again to avoid this tenant), (e) Works carried out in the units in secrecy (the last one was approved by Rubicon with only: 30 words, no details, no quotes. Yet we have to pay). (f) The ridiculous reply from Grace Lawyers full of lies. I contradicted Carlson in my submissions and in fresh proof sent to the Department of Justice. (Sic) [15] Doing the best that I can with what is in the Appeal application it seems that she is relying on the following grounds in support of the appeal: (a) The decision was somehow an "Irrational decision, not based on logical reasons ... " (Which I shall treat as Ground 1); (b) "The Adjudicator acted contrary to or against Covid legislation" (Which I shall treat as Ground 2); (c) "The Adjudicator gave the green light to the committee, Rubicon and Grace Lawyers to continue the abuse" (Which I shall treat as Ground 3). [16] The appellant set out varied and probably additional grounds in her submissions in support filed 5 April 2023, which contend that; (a) The Adjudicator "did not request further information from (her) ... " (Which I shall treat as Ground 4); (b) The Adjudicator "did not inspect the body corp records ... " (Which I shall treat as Ground 5); (c) The Adjudicator "stated that (she) forwarded an illegible or adulterated Form 1 without looking for tangible evidence ... " (Which I shall treat as Ground 6, related or perhaps the same as ground 1); (d) The decision “was based on hearsay" (Which I shall treat as Ground 7); (e) The Adjudicator "… did not act in a fair way" (Which I shall treat as Ground 8); (f) The Adjudicator "did not observe natural justice ... " (Which I shall treat as Ground 9); (g) The Adjudicator "cooperated with fraud, stealing, harassment, persecution and lack of maintenance" (Which I shall treat as Ground 10). [17] In my view grounds 4, 5, 7, 8, 9 and 10 are grounds which were not included in the grounds for Appeal in the Application and the appellant has not made an application to amend the Application to include them. According to accepted principle2 submissions in support of an appeal are not a proper substitute or supplementary notice of appeal. The ambit of an appeal is defined by the notice as served, and subsequent submissions should be an exposition of the grounds, not a proliferation of them. I shall take, and I need only consider so much of, the parties’ submissions as are pertinent to the 2 Kranjcic & Anor v Payyappilly [2014] QCATA 324 at [7]. -- 8 of 16 -- 9 grounds originally filed and served, and therefore, they are not strictly matters I need to decide. I will nevertheless deal with them to give finality to the matter given its history. [18] I pause to mention that in the appellant's primary submissions filed in the Tribunal on 5 April 2023 as well as her later submissions, her points or arguments are referenced to the orders sought in her original adjudication application, with voluminous unfocussed submissions addressing each order sought as if this was a hearing de novo rather than an appeal on questions of law. [19] Notwithstanding the focus on the grounds of appeal and the need to demonstrate an error of law identified in the respondent’s submissions of 25 October 2023, the appellant's response dated 1 November 2023 failed to grasp what the task at hand was and condescended to making further personal attacks on the other persons and parties and the representatives of the Body Corporate, including but not limited to criticism of their motives, their asserted desire to make money, or the imposition of oppressive by- laws, or acting in ways that involved manipulation and the destruction of a family. Frankly, it is an impossible task to actually extract a submission from that reply which has any relevance to the issues to be decided in this appeal. [20] The earlier referenced purported extension of the grounds of appeal was exacerbated by yet further material sent to the Tribunal by the applicant on 6 November 2024 when she wrote to the Tribunal, pointing out that she had more recently been exposed to further conduct which she described as despicable actions and crimes and referenced that she had been sued in the Magistrates court without permission of the body corporate. She claimed to be waiting for the new State government to take office and had written to the new Attorney-General requesting the arrest and prosecution of the solicitors acting for the Body Corporate as well as arresting the committee. She also sought to complain about the staff at the Magistrate's court for accepting the claim of the Body Corporate. She insisted there should be some kind of investigation into, amongst others, the Adjudicator in this matter. The letter refers to acts which she calls levy stealing and the charging of penalties. None of this appears to relate to the grounds of her appeal. [21] Essentially the body of voluminous material she has filed purporting to be submissions is transparently an attempt to relitigate the factual and related legal issues that she originally brought before the Adjudicator. Where the appeal is one on a question of law, it is not the task of this tribunal to embark upon a full review of the issues before an Adjudicator as well as those she says have arisen since the decision. Grounds 1 and 6 of the appeal – did the Adjudicator err in law in deciding matters not based on logical reasoning [22] Ground 1 of the appeal, as I ascertain it, is that the Adjudicator erred in making a decision not based on logical reasoning. [23] Section 270(1) of the BCCM Act provides that “(1) The Adjudicator may make an order dismissing the application if… (c) it appears to the Adjudicator that the application is frivolous, vexatious, misconceived or without substance”. Section 270(3) of the BCCM Act provides that “if the Adjudicator makes an order under subsection (1)(c), the Adjudicator (a) may order costs against the applicant to compensate all or any of the following for loss resulting from the application”. This language is therefore concerned with a decision-maker's opinion or "state of satisfaction" as to whether a relevant fact or -- 9 of 16 -- 10 matter exists.3 It is accepted that "Irrationality" or "Illogicality" sufficient to give rise to jurisdictional error in that context must be such that the decision to which the decision- maker came, in relation to the “state of satisfaction", is one at which no rational or logical decision maker could arrive, on the same evidence. It need not be established that some specific facts have been objectively proven prior to the decision-maker validly exercising the power.4 [24] The appellant does not in any way attempt to articulate what irrational reasoning is being referred to and fails to articulate how it is said that it was lacking in reason. In my view there is no demonstrated error of law under this head. [25] The appellant had sought an order that the respondent request the owner of lot 6 to ‘control his tenants and issue a contravention notice for breach of the parking by-law since January 2020’. In that context the finding was made that she had has not issued a valid Form 1 to the respondent setting out this alleged breach. Without participating in that process, she was precluded from seeking an order from the Adjudicator. [26] The Adjudicator held; 64. In any event, the Form 1 does not include any evidence of the alleged breach and does not include information which is sufficient for the respondent to establish a reasonable belief that the occupiers of lot 6 have contravened a by-law. 65. The respondent has received one, illegible Form 1 from the applicant. A copy of the Form 1 was attached as Annexure G to the submission. Of course, the respondent cannot respond to a Form 1 that is illegible as again the committee cannot hold a reasonable belief that the occupiers of lot 6 have contravened a by-law. [27] Therefore, the issue about illegibility does not involve a want of reasoning but is some attempt to challenge a finding of fact. In any event nothing turns upon it in this Appeal because even if the Form 1 was legible, it does not mean that the committee ought to have held a reasonable belief that the occupiers of lot 6 had contravened a by-law nor that the committee’s response was improper or unlawful. Ground 2 – Did the Adjudicator err in law by acting against Covid amendments to the BCCM Act [28] It is common ground that amendments were made to the BCCM Act by the Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 (‘Covid Amendment Act’). [29] In the adjudication application, the appellant had sought, among other orders, an order that the body corporate refund the unused sinking fund moneys and not raise sinking fund levies for that financial year according to what she said was the effect of the Covid Amendment Act. She also asked for orders that the body corporate not charge penalties for late levy payments and not proceed with debt recovery according to what she said was the effect of the Covid Amendment Act. 3 Australian Postal Corporation v D'Rozario (2014) 222 FCR 303, at 331. 4 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [130] Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, [32]-[34]. -- 10 of 16 -- 11 [30] The Adjudicator held in relation to the sinking fund order, that the Applicant did not identify the basis upon which she sought that outcome and while the respondent assumed the Applicant was relying on section 323D inserted into the Act in 2020 by the of Amendment Act, there was no resolution passed under section 323D of the BCCMA. As for consideration the statement of account included within the 2020 AGM agenda as Annexure D in relation to the debt recovery order the Applicant misunderstood the effect of the Amendment Act (particularly section 323G). It was held that the purpose of section 323G was to remove the requirement to commence proceedings to recover the amount. However, a body corporate still retained the discretion to start proceedings. The Adjudicator held that the Applicant was not charged penalty interest, so that there was no contravention of section 323F of the Amendment Act and further, that the proper forum for seeking the latter order was the Brisbane Magistrates Court, specifically proceeding M1115/21. [31] The appellant makes submissions here to the effect that the Adjudicator decided that the Amendment Act was not in place to help owners. No such decision was made. The Amendment Act did not prohibit bodies corporate from proceeding with debt recovery. She references a letter of demand from the respondent's Body Corporate Manager which mentions penalty interest but does not otherwise show that penalty interest was required to be paid nor any other contravention of the Amendment Act. [32] In my view there is no demonstrated error of law under this head. Grounds 3 and 10 – Did the Adjudicator gave the green light to the committee, Rubicon, and Grace Lawyers to continue their abuses "cooperate with fraud, stealing, harassment, persecution and lack of maintenance" and was that an error of law [33] The assertion that the Adjudicator gave the green light to the committee, Rubicon, and Grace Lawyers to continue their abuses and cooperated with fraud, stealing, harassment, persecution, and lack of maintenance does not enjoy the support of a submission from the appellant as to what findings are being referenced and why, if made, such conduct constitutes the making of an error of law. [34] The so-called abuses are identified as being the “lack of maintenance”, “stealing of correspondence” and “missing levy payments and/or double charge with penalty, harassment, adulteration of the statement of account certified by the same auditor year after year”. There is nothing to suggest that the Adjudicator cooperated with fraud, stealing, harassment, persecution, and lack of maintenance, nor was there any finding that there had been fraud, stealing, harassment, persecution, and lack of maintenance to which any “green light” might have been given. [35] The appellant does not even condescend to identifying where in the reasons such findings were made. It is not evident from a full reading on the reasons that any such findings were discussed or findings made, but if there were, the conclusion that may be inferred from the findings was that the conduct did not occur in the way she contended for and that the respondent’s conduct, whatever it was, was not unlawful. [36] These grounds are not responded to by the respondent in its submissions because, it says, they are not sufficiently particularised to enable an error of law to be made out nor a proper response to be made. -- 11 of 16 -- 12 [37] One can suppose that if the Adjudicator concluded that the respondent’s “conduct” in the past was not unlawful, then conceptually, although not necessarily, that finding may have led to the Body Corporate committee, Rubicon, and Grace Lawyers to continue to engage in such conduct, however no finding was made that they were entitled to do so. [38] The Adjudicator reviewed all the relevant material and submissions put forward by the parties. There is nothing to suggest he acted in a perverse fashion and “cooperated with fraud” or any of the other alleged misconduct. In my view there is no demonstrated error of law under this head. Grounds 4 and 5 – did the Adjudicator “not request further information from (the appellant)” and not inspect the body corporate records and was that an error of law [39] The appellant has not made focussed argument or submissions on these points in a way which makes clear what further information should have been sought or what body corporate records inspected nor why if it had been sought and inspected the outcome would have been different. Nor is it explained why these alleged failures were errors of law. [40] The investigative powers of adjudicators are outlined in sections 269 and 271 of the BCCM Act. In Hablethwaite v Andrijevic [2005] QCA 336 the Court of Appeal held that an Adjudicator is not obliged to seek clarification or further information from a party once that party has responded to an invitation to make submissions to the Adjudicator and it is entirely reasonable for an Adjudicator to limit investigations to inviting interested parties to make written submissions. Nor in my view is it the function of an Adjudicator to interrogate the records or the parties outside of the material provided to the Adjudicator to ascertain whether what parties say is the case, is truly the case. A detailed consideration of an Adjudicator’s obligation to investigate was conducted in Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 at 36 where Member Barlow SC as he then was held; [36] The body corporate notes that the Adjudicator had a statutory duty to investigate the application pursuant to ss 269 and 271 of the Act. It contended that he was required to take a proactive approach to the dispute and the factual basis for it and that, if he had a concern about some matter, he should have undertaken further investigation in order to properly determine it. The body corporate contends that, as it had told the Adjudicator that it had “irrefutable evidence” from police officers that the respondents had made structural alterations to their lot, the Adjudicator should have asked what that evidence was, or at least given the body corporate an opportunity to provide the evidence it claimed to have, rather than dismissing the application for lack of evidence. [37] The body corporate relies upon three cases for its proposition that the Adjudicator failed to carry out his statutory function of investigating the application before him. [38] In Hablethwaite v Andrijevic, Jerrard JA agreed with the District Court judge that an Adjudicator is not obliged to seek clarification or further information from a party once that party has responded, apparently sensibly, to an invitation to make submissions to the Adjudicator, and it is entirely reasonable for an Adjudicator to limit investigations to inviting interested parties to make written submissions (at [17]). His Honour considered that -- 12 of 16 -- 13 the Adjudicator had satisfied the duty to investigate the application by relying on the written submissions made to the Commissioner. [39] In the same case, Keane JA noted that there was no suggestion by the applicants that they had sought to make submissions to the Adjudicator but were denied the opportunity to do so. The applicants had been invited to make a written submission that would be considered by the Adjudicator and it was reasonable for the Adjudicator to expect that they would take that opportunity to put forward submissions. In choosing to make no submission beyond that which they made, the applicants themselves determined the extent to which they sought to be heard by the Adjudicator. His Honour noted that it is a rule of natural justice that a person should be afforded the opportunity to be heard before a decision is made against him or her, but such an opportunity was obviously afforded to the applicants in that case when they were invited to make submissions. The Adjudicator was not required to do anything more. [40] In Grut-Mackay v Sherwood Lodge, McGill SC, DCJ said (at [21]) that, where there is some lack of clarity, and perhaps some questions left unanswered, by an expert report tendered in evidence, then rather than simply rejecting the application on the basis that the evidence in support of it was inadequate, the Adjudicator should have drawn the deficiencies to the attention of the applicant so as to give the applicant the opportunity of putting further material before the Adjudicator. His Honour noted that the procedure of adjudication was an inquisitorial one rather than an adversarial one and the Adjudicator’s obligation was to investigate. He said that that involves a proactive approach to the dispute and the factual basis for it, rather than merely a reactive response, and therefore the Adjudicator terminated the investigation prematurely in that case. [41] Grut-Mackay was discussed by Mr Dorney QC (as his Honour then was) in Cox v Body Corporate for Grand Pacific Resort. Mr Dorney said it was not his understanding of Grut-Mackay that the principle to be extracted was that, in every case where the Adjudicator has some doubt about the material, the Adjudicator is obliged to investigate further or otherwise there may be an error of law. The principle is much narrower. If the evidence being examined contains some relevant evidence, it is an error for the Adjudicator to treat that evidence as not providing any evidence without also investigating the matter further before rejecting that evidence. It is one thing to reject, improperly, some relevant evidence as being inadequate when there is some evidence showing a basis for adequacy and when the use of investigative powers under a general obligation to investigate might resolve the matter. It is completely different to say that there is some principle that where further investigations could have been made, but were not, there is necessarily an error of law in the approach of the Adjudicator to the resolution of a question of fact. It is more a question of whether there is, or is not, an absence of logically probative evidence (perhaps because of a choice by the Adjudicator to refrain from further investigation). His Honour also noted cases in which it was held that failure to answer a letter (or, I interpolate, a submission) may amount to an admission if there are circumstances which render it more probable that a person who denied the assertion made against him in the letter (or submission) would answer those assertions than that he would not. Mr Dorney noted that what those cases establish is that, circumstances of a civil proceeding, which may well extend to an administrative inquiry, the decision maker can rely upon what might -- 13 of 16 -- 14 be reasonably expected of persons by way of response to assertions made, particularly were directed against them personally. [42] I agree with Mr Dorney’s summary of the relevant principles. In this case, they raise two questions: first, whether there was some logically probative evidence before the Adjudicator which, if inadequate, should have led him to investigate further; and second, whether the Adjudicator was entitled to expect that, if the body corporate had evidence, it would produce it in the face of assertions that it had no probative evidence. [41] I agree with that summary of principle. Not only is the question not whether the Adjudicator has some doubt about the material, and whether the Adjudicator is obliged to investigate further or otherwise there may be an error of law, but there is no suggestion here that that Adjudicator had some doubt about the material, or should have had such a doubt as might have justified clarification. Various body corporate records were annexed to the respondent's Response submissions, and they included the appellant's levy statement, an auditor's report, a statement of account, various EGM minutes, the Form 1 notice referenced earlier, a Pest Control Invoice and a Grace Lawyers invoice. The appellant has not identified what evidence before the learned Adjudicator required that the Adjudicator inspect any body corporate records. [42] But even if clarification was called for in some way, there was no error of law in the Adjudicator not having requested some sort of further information from the appellant and not having inspected the body corporate records nor otherwise before the Adjudicator. [43] Once again, there is no demonstrated error of law on the part of the Adjudicator in relation to this issue and this ground must fail. Ground 7 – The decision “was based on hearsay” [44] The appellant contends that "Schmidt’s (presumably meaning the adjudicator’s) decision was based on hearsay (lies from Silva -Sydney/Sri Lanka and Grace Lawyers)". This seems to be a contention that the Adjudicator relied upon hearsay and or knowingly false evidence tendered by Mr Silva and the respondent. The appellant does not bother to address what evidence she is referring to. [45] First no error of law is made out in this articulated ground because pursuant to section 269(3)(c) of the BCCM Act, in investigating an application, the Adjudicator is not bound by the rules of evidence, so hearsay, or specifically what would be inadmissible hearsay in a court where the rules of evidence applied is able to be relied upon. Nor does the applicant bother to identify what the evidence she complains about was, and how it was hearsay. [46] The reasons at [7]-[12] set out some of the evidence given by and apparently accepted from the owner of Lot 6, Mr Silva. It does not have the character of inadmissible hearsay evidence at all. The Adjudicator held that [7] The owner of Lot 6, Mr Silva, notes that there are many references to him in the documents provided by the applicant. He says these are mostly unsubstantiated and vexatious allegations and aspersions bordering on derogatory on his character and conduct. He particularly notes unprofessional, disrespectful, malicious and derogatory comments referring to Mr Silva’s ethnicity and country of origin. -- 14 of 16 -- 15 [47] The reference to that evidence by the Adjudicator suggests that there was no contradictory evidence and that therefore it was open to be accepted. [48] The reasons refer to the fact that the appellant accused Mr Silva and Grace Lawyers of providing false and misleading information to this Office and demands that penalties be imposed. The Adjudicator held in relation to that; [16] The applicant’s contrary assertions do not establish that anything stated in either Mr Silva’s or Grace Lawyers’ submissions was knowingly false and misleading in a material particular (or at all). No evidence has been presented to substantiate the applicant’s claims. [49] Once again, there is no demonstrated error of law on the part of the Adjudicator in relation to this issue and this ground must fail. Grounds 8 and 9 – The Adjudicator did not act in a fair way and did not observe natural justice [50] The history of the adjudication was as follows; (a) the appellant's amended adjudication application was filed on 21 February 2022; (b) the respondent filed its responsive submissions on 28 April 2022; (c) another lot owner, Manjula Silva, filed his submissions on 21 March 2022; (d) the appellant inspected the submissions made by lot owner Manjula Silva and Grace Lawyers and provided 84 pages of material in response in 17 separate emails from 16 May 2022 to 7 June 2022; (e) the effect of the reply submissions is summarised at paragraphs 13 to 17 of the decision; (f) the decision was published on 11 January 2023. [51] The appellant did not submit that the Adjudicator should request some sort of further information from the appellant and inspect the body corporate records while the adjudication was being conducted although there is no reason why she could not have done so. There is no explanation for her having failed to do so. [52] The Adjudicator found to the effect that she had not usefully availed herself of the opportunity to respond to the issues put against her, holding; Ms Duffy’s ‘reply’ to the submissions does little more than repeat statements made in her application, other than to advise that since the end of March 2022 she has provided more information to the police and an investigation is allegedly taking place. Ms Duffy also provides her perspective on a settlement conference held on 15 March 2022 pursuant to the Magistrates Court proceedings instigated by the body corporate against her in an attempt to recover unpaid contributions and recovery costs. Ms Duffy does not specifically address the legal issues raised in the submissions by Grace Lawyers on behalf of the body corporate. She does, however, accuse Mr Silva and Grace Lawyers of providing false and misleading information to this Office and demands that penalties be imposed. -- 15 of 16 -- 16 [53] The High Court has recognised that the concepts of fairness and natural justice are inextricably linked. In Kioa v West,5 Mason J said at 584-585 that the requirements for procedural fairness must be adjusted to the statutory framework governing the Tribunal in question: What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject- matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be considered as legitimate considerations ... [54] Despite this ground of appeal being pleaded the appellant does not argue that there was anything procedurally unfair in the course of the proceedings and one suspects that it is the outcome, not the process that is the source of her real complaint under this head. [55] Once again, there is no demonstrated error of law on the part of the Adjudicator in relation to this issue and this ground must fail. [56] It follows, that in my view, none of the grounds of appeal are made out. Accordingly, the appeals are dismissed. The respondent wishes to be heard on the issue of costs so I will grant liberty to apply in respect of costs. [57] The orders I make are that the appeal is dismissed and I grant liberty to apply in respect of the costs of the appeal. 5 (1985) 159 CLR 550. -- 16 of 16 --