Carter v Queensland Building and Construction Commission & ors [2022] QCAT 431

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carter v Queensland Building and Construction Commission & ors [2022] QCAT 431 PARTIES: LOUISE CARTER (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION MAXCON CONSTRUCTIONS PTY LTD THE BODY CORPORATE FOR THE JOHNSON CTS 49098 BODY CORPORATE FOR THE JOHNSON APARTMENTS CTS 49099 (respondent) APPLICATION NO/S: GAR259-19 MATTER TYPE: General administrative review matters DELIVERED ON: 22 December 2022 HEARING DATE: 14 November 2022 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: 1. The application for a Notice to Produce filed by Queensland Building and Construction Commission on 22 July 22 is allowed in the following terms: (a) Maxon Constructions Pty Ltd produce any documents in its possession to the Tribunal and each of the parties in GAR259-19 which relate to the following matters, after the date of 14 June 2018: (i) Any defective, non-compliant or unsatisfactory component of the rainwater drainage system (including both the system installed to level 16 and the siphonic system (Rainwater Drainage System) at 477 Boundary Street, Spring Hill in the State of Queensland (Property); (ii) Any water ingress caused by, or potentially caused by the Rainwater Drainage System at the Property; -- 1 of 8 -- 2 (iii) Any documents, including expert opinion, regarding the performance of the Rainwater Drainage System at the Property; (iv) The physical state of the Rainwater Drainage System at the Property (as altered by any works referred to below); (v) Any work undertaken to the Rainwater Drainage System at the Property, directly or indirectly, by Maxcon; and (vi) Any documents, including expert opinion, regarding future work to be undertaken or recommended to be undertaken, to the Rainwater Drainage System at the Property, by: 4:00pm on 4 January 2023. 2. The application for witness hearing notice filed by the Queensland Building and Construction Commission on 22 July 2022 (Anthony Elzain) is allowed in the following terms: (a) Anthony Elzain, of 48 Doncaster Road, Balwyn North in the State of Victoria, attend the hearing listed on 30, 31 January and 1, 2 February 2023 to give evidence. 3. The application for witness hearing notice and notice to produce filed by the Queensland Building and Construction Commission on 22 July 2022 (Aris Silvio Margaritis) is allowed in the following terms: (a) Aris Silvio Margaritis, of 20 Laurina Way Peregian Springs in the State of Queensland attend the hearing listed on 30, 31 January and 1, 2 February 2023 and produce any documents in his possession, including notes, diaries, photographs and correspondence, which relate to the following matters, after the date of 14 June 2018: (i) Any defective, non-compliant or unsatisfactory components of the rainwater drainage system (including both the system installed to level 16 and the siphonic system) (Rainwater Drainage System) at 477 Boundary -- 2 of 8 -- 3 Street, Spring Hill in the State of Queensland (Property); (ii) Any water ingress caused by, or potentially caused by the Rainwater Drainage System at the Property; (iii) Any documents, including expert opinion, regarding the performance of the Rainwater Drainage system at the Property; (iv) The physical state of the Rainwater Drainage System at the Property, directly or indirectly, by Maxcon; (v) Any documents, including expert opinion, regarding future works to be undertaken, or recommended to be undertaken, to the Rainwater Drainage System at the Property, by: 4:00pm on 4 January 2023 CATCHWORDS: PRACTICE AND PROCEDURE – where a party to the proceeding made applications for notices to produce and notices to attend the hearing – where the party sought orders requiring a former employee of the second respondent who resides in Queensland to attend the hearing to give evidence and produce documents – where the party also sought an order requiring a director of the second respondent who resides interstate attend the hearing to give evidence - whether the Tribunal should order the registrar to issue a notices to attend and/or a notice to produce to the former employee of the second respondent - whether the Tribunal should order the registrar to issue a notice to attend to the director of the second respondent – whether leave of a judge or magistrate required to serve the Notice to Attend interstate Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63, s 97, s 122 Service and Execution of Process Act 1992 (Cth), s 3, s 28, s 29, s 57 Hartley v Bennette [2014] QCAT 91 Li v Medical Board of Australia (No 1) [2013] QCAT 595 Owens v Menzies [2012] QCA 170 Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3 APPEARANCES & This matter was heard and determined on the papers -- 3 of 8 -- 4 REPRESENTATION: pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The Queensland Building and Construction Commission filed 3 applications seeking orders that: (a) Maxcon Constructions Pty Ltd produce certain documents to the Tribunal and the other parties (Maxcon application); (b) Aris Silvio Margaritis who resides in Queensland attend the hearing and produce certain documents (Margaritis application); and (c) Anthony Elzain who resides in Victoria attend the hearing (Elzain application). [2] On 14 November 2022 I made an order that a Notice to Produce be issued to Maxcon Constructions Pty Ltd (Maxcon) requiring it to produce certain documents to the Tribunal and to each of the other parties by 4 January 2023; a Witness Hearing Notice and Notice to Produce be issued to Aris Margaritis, requiring him to attend the hearing and to produce certain documents by 4 January 2023; and a Witness Hearing Notice be issued to Anthony Elzain to attend the hearing to give evidence. [3] On 28 November 2022 I received a Request for Reasons from the legal representative of Maxcon. The order for Maxcon, which is a party to the proceedings, to produce documents was made pursuant to s 62(3) of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). Section 122(4) of the QCAT Act provides that the Tribunal is not required to comply with a request for reasons for a decision made under certain provisions, including s 62(3). For reasons of efficiency, and given the hearing of this matter has been set down to commence on 30 January 2023, I do not propose to provide reasons in respect of the orders made in respect of the Maxcon application. I will proceed to provide reasons for the orders made in respect of the Margaritis application and the Elzain application. Background [4] Lousia Carter, the applicant, is the owner of a unit at a property in Spring Hill (dwelling). The property was formerly the Main Roads Department Building and in 2014 was added to the Queensland Heritage Register. The property was sold to a developer, Asian Pacific Group, now known as Deague Group, and re-purposed into a combined hotel and residential apartment complex. [5] Maxcon was the building contractor responsible for the works. The works were completed on or around 9 September 2016, when the Form 11 certificate of classification was issued in respect of the property. [6] On 21 February 2018 the applicant made a complaint to the Commission regarding the works at the dwelling. In summary the complaints relate to issues that allegedly arose as a result of the construction of a new apartment above the applicant’s dwelling. The applicant lists water ingress and associated damage allegedly caused by that water ingress as complaint items. -- 4 of 8 -- 5 [7] On 10 May 2018 the Commission made a decision to give a direction to rectify to Maxcon pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) in respect of some complaint items but not others. [8] On 2 July 2019 Louisa Carter applied to the Tribunal for review of that decision. Overview of relevant statutory framework: Notices to Attend and/or Produce Documents [9] The Margaritis application and the Elzain application were made by the Commission pursuant to s 97 of the QCAT Act, using a Form 38 (the approved form for such an application). [10] Section 97 provides: 97 REQUIRING WITNESS TO ATTEND OR PRODUCE DOCUMENT OR THING (1) The tribunal or the principal registrar may, by written notice, require a person to— (a) attend at a stated hearing of a proceeding to give evidence; or (b) produce a stated document or other thing to the tribunal. Note— See section 214 for consequences of failing to comply with a notice under this subsection. (2) The tribunal may give a notice under subsection (1) on the application of a party to a proceeding or on its own initiative. (3) The principal registrar may give a notice under subsection (1) on the application of a party to a proceeding. (4) A person who is given a notice under subsection (1) is entitled to be paid the fees and allowances prescribed under a regulation or, if no fees and allowances are prescribed, the fees and allowances decided by the tribunal. (5) Fees and allowances payable to a person under subsection (4) must be paid— (a) if the person was given the notice on the application of a party to the proceeding—by the party; or (b) otherwise—by all of the parties in the proportions decided by the tribunal. (6) The fees and allowances must be paid at the time prescribed under a regulation. [11] The Elzain application raises issues relating to the service of a notice to attend interstate. [12] The service of subpoenas by courts and tribunals interstate is dealt with in the Service and Execution of Process Act 1992 (Cth) (SEPA). [13] Section 3 of SEPA defines ‘subpoena’ as follows: "subpoena", except in Part 4, means a process that requires a person to do one or both of the following: -- 5 of 8 -- 6 (a) to give oral evidence before a court, authority or person; (b) to produce a document or thing to a court, authority or person; but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents. [14] In Li v Medical Board of Australia (No 1)1 Judge Horneman-Wren SC held that an order requiring a person to produce documents to the Tribunal pursuant to s 63 of the QCAT Act satisfied the definition of ‘subpoena’ in s 3 of the SEPA. [15] The issue arises as to whether the provisions relating to the service of subpoenas applying to courts (Part 3) or to tribunals (Part 4) in the SEPA apply in respect of the Elzain application. [16] The Tribunal has considered the issue and held, for the purposes of the Service and Execution of Process Act that QCAT is a court of the state, and accordingly, that the provisions in that Act relating to courts apply: Li v Medical Board of Australia (No 1);2 Hartley v Bennette;3 Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie.4 [17] In Li, Judge Horneman-Wren SC, Deputy President of QCAT held that QCAT was a “court” and not a “tribunal” for the purposes of the Service and Execution of Process Act. This is consistent with the decision of the Queensland Court of Appeal in Owen v Menzies5 which held that QCAT is a “court of a state” for the purposes of the Constitution and with the decision of the Tribunal in Capital Options (Aust) Pty Ltd v Batchelor,6 which held that QCAT is a court within the meaning of the National Credit Code. It is also consistent with s 164(1) of the QCAT Act which provides that the tribunal is a court of record. [18] In Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & ors7 the Appeal Tribunal held, in relation to initiating proceedings: Under the Service and Execution of Process Act 1992 (Cth) (SEPA) such process could be served interstate without restriction since the tribunal was a court of a State. … In turn there is nothing requiring the subject matter of a dispute before the tribunal to be connected with Queensland. In Hartley, I contrasted the position under SEPA of tribunals which are not courts of a State. There are comprehensive provisions under section 48 of SEPA restricting service of an initiating process in a tribunal which is not a court of a State – requiring of particular relevance here, a contractual obligation which should be preformed in the State. Section 48 does not apply to QCAT. It only applies to a tribunal 1 [2013] QCAT 595. 2 [2013] QCAT 595 at [12]. 3 [2014] QCAT 91 at [21] to [26]. 4 [2022] QCATA 3 at [29], [32]. 5 [2012] QCA 170 at [17] per de Jersey CJ and at [52] per McMurdo P. 6 [2013] QCAT 493. 7 [2022] QCATA 3. -- 6 of 8 -- 7 which is not a court of a State. There is no restriction in SEPA for service of QCAT initiating process.8 [19] The Elzain application concerns the service of a subpoena, as opposed to initiating process. However, the same reasoning applies to the interpretation of the SEPA provisions relating to service of subpoenas. [20] ‘Court’ is defined in s 3 of SEPA to mean a court of a state. [21] “Tribunal” is defined in s 3 so as not to include a court. [22] Part 3 – Service of subpoenas, Division 1 applies to a subpoena issued by a court, that is addressed to a person who is not in prison.9 [23] Section 29 of Division 1 provides: (1) A subpoena issued in a State by a court or an authority may be served in another State. (2) Service must be effected in the same way as service of a subpoena in the place of issue. (3) Service is effective only if the subpoena contains an address for service of the person (if any) at whose request the subpoena was issued. [24] It follows that there is no need, in my view, for QCAT as a court of a state to give leave for service to be effected outside the State, as required by s 57.10 Section 57, contained in Part 4, in my view, applies to subpoenas issued by a tribunal that is not a court of the state. [25] I am satisfied that the Notice to Attend directed to Mr Elzain complies with the SEPA. I deal with the substantive aspects of the application below. Margaritis application [26] In respect of the orders sought in respect of Mr Margaritis I am satisfied that the documents sought to be produced are relevant to the issues required to be considered under s 72 of the QBCC Act. Further, Maxcon has not complied with directions of the Tribunal relating to the filing of statements of evidence which means the documents have not otherwise been made available to the parties or the Tribunal. [27] Mr Margaritis is also potentially an important witness at the hearing. He was an employee of Maxcon and was significantly involved with the property. The Commission also submitted that it understood Mr Margaritis attended the property frequently in the years after the completion of the works. Further, the Commission contends, that as Mr Margaritis is no longer employed by Maxcon, he may have documents in his possession that Maxcon does not. [28] I am satisfied that, given Mr Margaritis’ role in Maxcon and the extent of his involvement with the property, that his evidence would be directly relevant to the issues in the review proceedings. Further, due to a lack of engagement by Maxcon in the proceedings, the evidence is not before the Tribunal. 8 Ibid at [29], [32]. 9 SEPA, s 28. 10 SEPA, s 57. -- 7 of 8 -- 8 Elzain application [29] Mr Elzain is the director of Maxcon and was the nominee of Maxcon when it held a licence in Queensland and performed the works. Mr Elzain was a licensee until 24 August 2021 under the QBCC Act. [30] I am satisfied that, as Mr Elzain is the sole director of Maxcon and was the nominee when the relevant work was performed, that his evidence is directly relevant to the review proceedings. Again, like the evidence of Mr Margaritis, the evidence he is able to give is not currently before the Tribunal despite many opportunities for the evidence to have been provided. [31] I am satisfied that it is in the interests of justice, given the Tribunal’s function to make the correct and preferable decision, that Mr Margaritis and Mr Elzain attend the hearing to give evidence. [32] For the reasons above, the Notices should be issued. -- 8 of 8 --