Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 460

CITATION: Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 460 PARTIES: James Thomas Barns and Lynette Joy Barns (Applicant) v Commissioner, Queensland Fire & Emergency Services (Respondent) APPLICATION NUMBER: GAR028-17 MATTER TYPE: General administrative review matters HEARING DATE: 19 December 2017 HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 19 December 2017 DELIVERED AT: Brisbane ORDERS MADE: The Application for Miscellaneous Matters filed by Mr and Mrs Barns on 31 October 2017 is dismissed. CATCHWORDS: EVIDENCE – ADDUCING EVIDENCE – DOCUMENTS – REQUESTS TO PRODUCE – production by third party – where alternative procedures available Disaster Management Act 2003 (Qld), s 121 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63 Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCAT 118 Smith v Queensland Building Services Authority [2011] QCAT 66 -- 1 of 7 -- 2 APPEARANCES: APPLICANT: Mr R J Anderson QC with Ms K Riedel of Counsel RESPONDENT: Mr M J Woodford of Counsel REASONS FOR DECISION [1] Mr and Mrs Barns applied for compensation for under the Disaster Management Act 2003 (Qld) (the DM Act). [2] Section 121(2) of the DM Act requires that applications for compensation be made to the Commissioner within 90 days of the loss or damage being suffered. However, s 121(5) permits the Commissioner to accept an application made more than 90 days after the less or damage is suffered if satisfied it would be reasonable in all the circumstances to do so. [3] Mr and Mrs Barns’ application was made outside the 90 day period, and the Commissioner was not satisfied that it was reasonable to accept the late application. Accordingly, she did not accept or consider the application or pay any compensation. [4] Mr and Mrs Barns have sought review of the Commissioners decision by the Tribunal. [5] On 31 October 2017, Mr and Mrs Barns lodged an interlocutory application for orders under s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) requiring seven persons and entities, who are not parties to the proceedings, to produce various documents. [6] At the time the interlocutory application was made, the substantive application was listed for hearing on 19 December 2017. That hearing date has since been vacated. To the extent that there was any urgency relating to the production of documents stemming from the impeding hearing date, that urgency has now dissipated. [7] Section 63 of the QCAT Act relevantly provides: (1) 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 to — (a) the tribunal; or (b) a party to the proceeding. (2) The person in relation to whom the order is made must comply with the order within the period stated in the order. -- 2 of 7 -- 3 (3) However, subsection (2) does not apply to a document or thing, or a part of a document or thing, for which there is a valid claim to privilege from disclosure. (4) In making an order on the application of a party, the tribunal must consider whether it is appropriate to make an order requiring the party to pay the costs of producing the document or thing to which the order relates. [8] The seven persons and entities to whom the proposed orders are directed are: a) the Department of Communities, Child Safety and Disability Services (Department of Communities); b) the Department of Education, Employment and Workplace Relations (Department of Education); c) the Lockyer Valley Regional Council; d) the Department of the Premier and Cabinet; e) the Queensland Reconstruction Authority; f) the Member for Lockyer, the Honourable Ian Rickuss; and g) the Queensland Police Service. [9] There is no evidence before me that right to information requests have ever been made to the Department of Education, the Department of the Premier and Cabinet and the Member for Lockyer. Nor is there any other evidence before me to suggest that those persons and entities have otherwise been approached in relation to the documents sought. [10] I note that right to information requests have previously been made to the Department of Communities, the Lockyer Valley Regional Council, the Queensland Reconstruction Authority and the Queensland Police Services. For completeness, an additional request was also made to the Department of Local Government, Community Recovery and Resilience, which does not appear in the above list. These requests were all made in early 2014. [11] There is no evidence before me that review rights were ever exercised in respect of the responses to the right to information requests made to the Department of Communities, the Lockyer Valley Regional Council, the Queensland Reconstruction Authority and the Queensland Police Services. Nor is there any other evidence before me to suggest that those entities have otherwise been approached in relation to the additional documents sought. [12] It is instructive to compare the documents previously sought in the right to information requests with the documents sought in the proposed orders. For example, in relation to the Department of Communities, a right to -- 3 of 7 -- 4 information request was made 10 January 2014 seeking documents described as follows: Any and all documents relating to the operation of a flood recovery centre at Murphy’s Creek in the State of Queensland between 1 January 2011 and 28 February 2011 including but not limited to an agreement made between James Thomas Barns and Lynette Joy Barns and the Department of Community Safety that: 1. James Thomas Barns and Lynette Joy Barns (The Barns) would make available to the Department of Community Safety (The Department) space and facilities within and around the Recovery Centre for use as a disaster recovery centre; 2. The Barns would use their staff to co-ordinate disaster management operations from the Recovery Centre; 3. The Barns would make available to displaced persons at the Recovery Centre food and beverages for the sustenance of such persons and also persons assisting in the disaster recovery operations; 4. The Department would pay the Barns for the use of the abovementioned facilities, including food and beverages. [13] The proposed orders under s 63 would require the Department of Communities to produce the following documents (footnotes omitted): 1. Documents recording, documenting or directly or indirectly relating to any conversation or communications between Matthew Kelly and Mr Barns, Mrs Barns, Sue Haughey or any representative of Mr and Mrs Barns or the Murphy’s Creek Tavern (The Tavern) which occurred between 10 January 2011 and 8 March 2011 about payment of costs associated with operating the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 2. Documents recording, documenting or directly or indirectly relating to any conversation or communications between Mike Mutze and Mr Barns, Mrs Barns, Sue Haughey or any representative or Mr and Mrs Barns or the Tavern which occurred between 10 January 2011 and 8 March 2011 about payment of costs associated with operating the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 3. Documents recording, documenting or directly or indirectly relating to any conversation or communications between Amanda Nixon and Mr Barns, Mrs Barns, Sue Haughey or any representative of Mr and Mrs Barns or the Tavern which occurred between 10 January 2011 and 8 March 2011 about payment of costs associated with operating the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 4. Documents recording, documenting or directly or indirectly relating to any conversation or communications between representatives of the office of the Hon Minister Tim Mulherin and Mr Barns, Mrs Barns, Sue Haughey or any representative of Mr and Mrs Barns or the Tavern -- 4 of 7 -- 5 which occurred between 10 January 2011 and 8 March 2011 about payment of costs associated with operating the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 5. Documents recording, documenting or directly or indirectly relating to any conversation or communications between representatives of the office of the Hon Minister Karen Struthers and Mr Barns, Mrs Barns Sue Haughey or any representative of Mr and Mrs Barns or the Tavern which occurred between 10 January 2011 and 8 March 2011 about payment of costs associated with operating the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 6. Documents recording, documenting or directly or indirectly relating to any conversation or communications between Nicola Jeffers and Mr Barns, Mrs Barns, Sue Haughey or any representative of Mr and Mrs Barns or the Tavern which occurred between 10 January 2011 and 4 February 2011 about payment of costs associated with operating the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 7. Documents recording, documenting or directly or indirectly relating to any conversation or communications, preparation, attendance and/or participation in a meeting between Brooke Winters, Matthew Kelly, Mr Barns and/or Mrs Barns and/or Sue Haughey and/or any representative of Mr and Mrs Barns or the Tavern on 9 March 2011. 8. Documents forming part of, or relating to (including in relation to the preparation of), the document entitled ‘Attachment 2 Topic: Negotiations with Proprietor of Murphy’s Creek Tavern re Community Recovery Associated Expenses 9/3/2011’. 9. Documents recording, documenting or directly or indirectly relating to the ‘agreement’ allegedly reached between Brooke Winters, Matthew Kelly and Mr Barns on 9 March 2011. 10. Documents recording, documenting or directly or indirectly relating to any conversation, communications or advice provided by the ‘Community Recovery Unit in Central Office’ to representatives of the Department of Communities about appropriations available under ‘NDRRA guidelines’. 11. Documents recording, documenting or directly or indirectly relating to any conversation or communications between Brooke Winters and representatives of Lockyer Valley Regional Council (LVRC) about the use of, and/or reimbursement for the use of, the Tavern as an Evacuation Centre, Recovery Centre or Forensic Compound. 12. Documents recording, documenting or directly or indirectly relating to any conversation or communications between Matthew Kelly about the progress of returfing and carpet cleaning at the Tavern. 13. Documents recording, documenting or directly or indirectly relating to any conversation between Kim Dyball and Brooke Winters about the Tavern and payment of costs associated with operating the Tavern as -- 5 of 7 -- 6 an Evacuation Centre, Recovery Centre or Forensic Compound which occurred on or after 1 June 2011. 14. Documents recording, documenting or directly or indirectly relating to any communications, preparation, attendance and/or participation in a meeting between Brooke Winters, Ian Flint, representatives of QPS, Mr Barns and/or Mrs Barns and/or Sue Haughey and/or any representative of Mr and Mrs Barns or the Tavern on 17 January 2012. 15. Documents recording, documenting or directly or indirectly relating to the preparation of the email and attachments sent by Caitlan Natalier to Chris Neville on 20 January 2012. 16. Documents recording, documenting or directly or indirectly relating to the ‘range of comparisons with fees paid in other areas of the State associated with recovery centre operations’ considered by the Department of Communities and the costs ‘examined’ by the Department of Communities with reference to those incurred in other Queensland recovery centres. 17. An unredacted copy of the email chain between Annabelle Johnstone and Brooke Winters dated 20 January 2012 and a copy of the attachments to that email chain. 18. Documents recording, documenting or directly or indirectly relating to the ‘Murphy’s Creek Tavern Issue’ referred to in the email from Annabelle Johnstone to Steve Waddell and Phil Carney dated 20 January 2012. 19. Documents relating to: a. The use of the Tavern as an Evacuation Centre, Recovery Centre and/or Forensic Compound by the Department of Communities, Child Safety and Disability Services, Lockyer Valley Regional Council and the Queensland Police Services between January 2011 and June 2011. b. The use of the Tavern’s staff to coordinate disaster management operations from the Evacuation Centre and/or Recovery Centre. c. The provision, by Mr and Mrs Barns (via the Tavern) of food and beverages to displaced persons and persons assisting in the disaster recovery operations. d. The claim for compensation, and any discussion or indication of, a claim for compensation by the Tavern, Mr Barns, Mrs Barns or any representative of them or the Tavern, arising from the use of the Tavern as an Evacuation Centre, Recovery Centre and/or Forensic Compound, the engagement of the Tavern’s staff and the provision of food and beverages. [14] It seems to me that, in large measure, the proposed orders are in the nature of “follow up” requests arising out of the contents of documents previously released under the right to information requests. -- 6 of 7 -- 7 [15] In Smith v Queensland Building Services Authority,1 Member Stilgoe stated: 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. [16] This approach was endorsed in Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors,2 where Member Paratz stated: As Jebral has not yet approached Mr Thomas, it is premature to determine whether he advises that he holds any documents that are relevant, and is unwilling to provide those to Jebral. It may be that Mr Thomas does not have any correspondence he had with the agents. It is not appropriate to make an order compelling Mr Thomas to provide documents, when the existence of those documents has not been established, and it has not determine whether Mr Thomas is willing to provide those documents without an order. [17] In my view, the principles espoused in those cases are sound ones. [18] It seems to me that the appropriate course of action in the present matter is for Mr and Mrs Barns to make further right to information requests to or otherwise approach the Department of Communities, the Lockyer Valley Regional Council, the Queensland Reconstruction Authority and the Queensland Police Services in relation to the additional documents sought from those entities. Similarly, they should make initial right to information requests to or otherwise approach the Department of Education, the Department of the Premier and Cabinet and the Member for Lockyer in relation to the documents sought from those persons and entities. [19] Such a course of action, and in particular the right to information applications, would have the benefit of establishing the existence or otherwise of the documents sought, and may well lead to the production of at least some of the documents. If Mr and Mrs Barns were unable to obtain particular documents whose existence is confirmed through these processes, it would be open to them to make a further interlocutory application for orders under s 63. I would expect any such further application for the production of documents to be considerably narrower in scope than the application presently before me. Such an application would fall to be considered on its own merits. [20] The application for production of documents is dismissed. 1 [2011] QCAT 66, [7]. 2 [2016] QCAT 118, [53] - [54]. -- 7 of 7 --