Body Corporate for The Reserve CTS 31561 v Commissioner of the Queensland Fire and Emergency Services [2017] QCAT 390

CITATION: Body Corporate for The Reserve CTS 31561 v Commissioner of the Queensland Fire and Emergency Services [2017] QCAT 390 PARTIES: Body Corporate for The Reserve CTS 31561 (Applicant) v Commissioner of the Queensland Fire and Emergency Services (Respondent) APPLICATION NUMBER: GAR145-16 MATTER TYPE: General administrative review matters HEARING DATE: 7 September 2017 HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 3 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The Miscellaneous Application is dismissed in relation to Notice EN109613 with no order as to costs. 2. Body Corporate for The Reserve CTS 31561 must advise the Tribunal and the Commissioner of the Queensland Fire and Emergency Services if it wishes to proceed with the review of the decision to issue Notice EN 110987, by 4:00pm on 24 November 2017 3. If Body Corporate for The Reserve CTS 31561 advises the Tribunal, and Commissioner of the Queensland Fire and Emergency Services, that it wishes to proceed with the review of the decision to issue Notice EN 110987, then: (a) Commissioner of the Queensland Fire and Emergency Services must file in the Tribunal two (2) copies and give to Body Corporate for The Reserve CTS 31561 one (1) copy of the following documents in -- 1 of 10 -- 2 relation to the decision to issue Notice EN 110987 dated 30 January 2017: (i) A written statement of reasons and relevant documents under section 21(2) of the QCAT Act; (ii) An indexed and page numbered bundle in date or other logical order of the documents and other material in its possession or under its control that may be relevant to the Tribunals’ review of the decision, by 4:00pm on 22 December 2017 (b) Body Corporate for The Reserve CTS 31561 must file in the Tribunal two (2) copies and give to the Commissioner of Queensland Fire and Emergency Services one (1) copy of any statements of evidence, by 4:00pm on 31 January 2018 (c) Commissioner of the Queensland Fire and Emergency Services must file in the Tribunal two (2) copies and give to Body Corporate for The Reserve CTS 31561 one (1) copy of any statements of evidence in reply, by 4:00pm 16 February 2018 (d) The proceeding is listed for a Directions Hearing on a date to be advised, not before 16 February 2018 CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – UNDERTAKING IN COURSE OF LEGAL PROCEEDINGS – where an undertaking was given by a decision- maker that a Notice is withdrawn – whether the issuing of a second notice in substance duplicated the first notice – where costs were sought in relation to the proceedings Day v Woolworths Ltd & Ors [2016] QCA 337 -- 2 of 10 -- 3 REPRESENTATIVES: APPLICANT: Represented by Mr James Lovel of Byrne and Lovel Pty Ltd t/a Byrne and Lovel Lawyers RESPONDENT: No Appearance REASONS FOR DECISION [1] The Queensland Fire and Emergency Services (‘QFES’) issued a Notice (‘the First Notice’) to the Body Corporate for the Reserve (‘the Body Corporate’) on 23 May 2016 in relation to fire protection matters. An application to review that decision was filed in the Tribunal on 2 June 2016. Directions were made by Consent as to the First Notice on 30 January 2017. [2] The QFES issued a Second Notice on 30 January 2017 as to fire protection matters. The Body Corporate filed a Miscellaneous Application on 9 February 2017 seeking that the Directions made by Consent be set aside in light of the issuing of the Second Notice. [3] The Miscellaneous Application was set for an oral hearing on 7 September 2017. No appearance was made by the QFES. The Hearing Support Officer rang the QFES who advised that they had not received a Notice of Hearing and that they thought the hearing was to be on the papers. [4] Those advices were at variance with submissions filed by the QFES filed on 15 June 2017 which submitted that it would prefer an oral hearing of the application,1 and which led to the Directions made on 3 August 2017 listing the matter for oral hearing on 7 September 2017. Those Directions, and a Notice of Hearing, were emailed to QFES by the Registry on 9 August 2017. [5] The Body Corporate was not opposed to the hearing proceeding in the absence of the QFES, and having regard to the Notice given to QFES, and both parties having filed written submissions, I considered that the hearing should proceed. [6] This is the decision as to the Miscellaneous Application. The Miscellaneous Application [7] The initiating Application to review a decision was filed on 6 June 2016, and sought a review of the decision of the Commissioner being Notice No. EN109613 dated 6 May 2016. Orders were sought as follows: 1 Submissions of the Respondent, filed 15 June 2017, [27]. -- 3 of 10 -- 4 (1) The Notice be set aside and the Tribunal decide not to issue an occupancy notice to the Applicant pursuant to section 24(10(b) of the QCAT Act. (2) Alternatively, the Notice be set aside and the matter returned for reconsideration by the Decision maker pursuant to section 24(1)(c) of the QCAT Act. [8] The parties filed an Application for decision/order by consent on 24 January 2017 seeking the following Orders: 1. Upon the respondent’s undertaking that Notice EN109613 is withdrawn the Application be dismissed. 2. The hearing listed for 7 March 2017 be vacated. [9] The Tribunal made the following Directions on 30 January 2017 accordingly: 1. Upon the Commissioner of the Queensland Fire and Emergency Services undertaking that Notice EN109613 is withdrawn, the application is dismissed. 2. The Hearing listed in Brisbane on 7 March 2017 is vacated. [10] The miscellaneous application filed on 9 February 2017 sought the following Directions: 1) That paragraph 1 of the Directions made 30 January 2017 be discharged. 2) That this proceeding be listed for a Directions Hearing 3) That the Respondent’s decision to issue Notice EN110987 dated 30 January 2017 be included for review in this proceeding and Notice EN110987 be stayed pending determination of this proceeding. 4) That the Respondent must file in the Tribunal two (2) copies and give to the Applicant one (1) copy of : (a) a written statement of reasons for issuing Notice EN110987; and (b) all material relevant to this proceeding. [11] The Tribunal gave a Direction on 14 March 2017 as follows: The application for miscellaneous matters made on 9 February 2017 is taken to be an application to review the decision to issue Notice EN110987. -- 4 of 10 -- 5 Submissions of the Body Corporate [12] The Body Corporate submits that the second notice in substance duplicated the allegation from the First Notice that the Body Corporate had failed to properly maintain fire doors.2 [13] It submits that the QFES did not provide an undertaking as provided for in the Directions of 30 January 2017, and that there is no merit in the contention that the proceeding is dismissed,3 and submits that:4 35. The respondent cannot be said to have withdrawn the First Notice where the respondent has contemporaneously issued the Second Notice on the same subject matter. To do so would be to permit form to prevail over substance while also sanctioning an abuse of the respondent’s power to the detriment of the applicant in this proceeding. [14] It submits that but for its mistaken belief that the QFES concerns about the fire doors had been resolved, it would not have consented to the Direction.5 [15] The Body Corporate submits that the Tribunal ought to set aside paragraph 1 of the Directions made on 30 January 2017, and seeks that both the First and Second Notice be reviewed in this proceeding. [16] The Body Corporate seeks either its legal costs thrown away in seeking review of the First Notice, if the proceeding is dismissed; or alternatively that the QFES should pay the Body Corporate’s costs of preparing its submissions fixed at $660.00 or assessed on a standard basis. Submissions of the QFES [17] The QFES submits that the Body Corporate has misapprehended both the undertaking given and the powers and responsibilities of the Commissioner.6 [18] The QFES says that the nature of the First Notice was as follows:7 5. The First Notice was issued on 5 May 2016. It required that rectification be completed by 30 June 2016. The failure described in the Notice was a failure to comply with the requirements of division 2 of part 9A of the Fire and Emergency Services Act 1990. Annexure A sets out specifically what those failures were. First the failures were penetrations through fire rated construction which were not consistent with the design and approval which had already been granted. Secondly, numerous fire doors located throughout the premises were not serviceable, specifically the fire doors identified by a contractor as requiring repairs and that fire doors could not be assessed for testing 2 Applicants submissions filed 27 April 2017, [18]. 3 Ibid, [33]. 4 Ibid, [35]. 5 Ibid, [41]. 6 Submissions of the Respondent, filed 15 June 2017, [1]. 7 Ibid, [5], [6]. -- 5 of 10 -- 6 and maintenance. Annexure B of the First Notice set out the actions which were required to be taken in order to comply with the First Notice. 6. Those requirements included engaging the services of an appropriately qualified and licenced person that would perform an audit of all penetrations through fire rated construction and all fire doors within the building to determine all faults with all penetrations through fire rated construction and fire doors within the building. That person was then to conduct and complete all remedial works. That person was then to provide certification that they had conducted the remedial works. [19] The QFES describes the Second Notice as follows:8 11. The second notice contains Annexure A which sets out the failure to comply with division 2 of part 9A of the Fire and Emergency Services Act 1990. Unlike the First Notice, the Second Notice deals only with the fire doors. Annexure B sets out what must be done in order to become compliant. What is required is only for the applicant to perform maintenance through a qualified person on the fire doors, have the fire doors inspected and tested at compliant intervals, and repair the fire doors or carry out corrective action within one month after the maintenance and installation of the fire doors is carried out. 12. The Second Notice was issued after the applicant provided to the respondent a plan for the rectification of fire doors (‘the plan’). The Plan, attached as exhibit 4 to these submissions, set out the due date for works to be done the stage of the works being done and the remedial work which was required. The 15-page spreadsheet which was provided with the plan was provided to the Queensland Fire and Emergency Service by the chairperson of the applicant on 24 January 2017. The plan was developed as a result of the applicant engaging an expert who inspected and developed the plan. [20] The QFES submits that the application is misconceived:9 In fact, the effect of the directions was to finalise the proceedings by the application being dismissed and the hearing date being vacated. It cannot be disputed that in fact the First Notice was withdrawn. Therefore, the respondent complied with its undertaking to withdraw the First Notice and the matter has been finalised. [21] The QFES submit that the effect of the Second Notice is to manage the plan which was provided by the Body Corporate. [22] The QFES submit that there is nothing that has been done by it that would sound in a costs order to the Body Corporate, as it has not misrepresented 8 Ibid, [11], [12]. 9 Ibid, [13]. -- 6 of 10 -- 7 anything, and the allegation that it is inconsistent with the spirit of the model litigant principles is wrong and unsupported.10 Discussion [23] The Body Corporate is indignant that the Second Notice was issued. It seems to have been of the belief that all matters were finalised by the Direction of 30 January 2017. [24] Is the Second Notice fundamentally different to the First Notice, or is it effectively the same notice brought again under a different guise? [25] The First Notice EN109613 required action to be taken by the employment of an appropriate person to conduct an audit, and remedy the ‘Penetrations through fire-rated construction’ and ensure the ‘fire doors’ meet the required standard, and then obtain written documentation confirming that the faults have been rectified and comply with the required standard. [26] The First Notice also required that evacuation signs and diagrams were displayed, and that records of maintenance of the ‘penetrations through fire- rated construction’ were made. [27] The Second Notice EN110987 relates only to fire doors, and requires that they be audited and maintained, and records be kept of repairs and maintenance. [28] There is a clear distinction between the extent and effect of the two notices. The First Notice requires remedial work to be performed. The Second Notice relates to ongoing maintenance and supervision. [29] The Direction made on 30 January 2017 was made by Consent, and adopted the wording that was proposed and agreed to by the parties. [30] It is common procedure for the Tribunal to adopt the wording of a proposed consent order, provided that the wording is clear, sensible and cogent, because to alter or interfere with consent wording raises the risk that the parties may later complain that the effect of a direction or order which was made was different to that to which they were consenting. [31] The consent direction used the phrase ‘Upon the Commissioner of the Queensland Fire and Emergency Services undertaking...’. That is a familiar phrase used in Courts and Tribunals. The accepted meaning is that the party is actually making the undertaking there and then – it is an undertaking made in the face of the Court or the Tribunal, and is an undertaking to the Court or Tribunal. [32] I cannot see any different usage in the wording of this Direction. 10 Ibid, [26]. -- 7 of 10 -- 8 [33] The effect of an undertaking was considered by the Queensland Court of Appeal in the recent decision of Day v Woolworths Ltd & Ors:11 [32] As it happened, the order made by Her Honour was a dismissal of this part of the first respondent’s application. However, the reasons (but not the order made) record that the applicant undertook to exclusively communicate with the legal representatives of the parties and continued that the applicant ‘seemed to understand the gravity of her undertaking to the court and accepted her personal responsibility to comply with it’. An undertaking to the court is usually recorded or noted in the order itself. … [34] In view of the District Court’s decision, the applicant remains bound by the undertaking either until she is released from it by an order of the court or it otherwise expires. [34] The Body Corporate submits that the QFES did not go on to make any undertaking. The QFES did not need to do anything further as it had made the undertaking in plain words by consenting to the Direction in those words. [35] Although the sealed document of 30 January 2017 is entitled a Direction, it is my view that it is actually an Order of the Tribunal. The document makes a final order dismissing the application to review the decision to issue Notice EN 109613. [36] The proceedings have been complicated by the continuance of the Miscellaneous Application as to the First Notice by the Body Corporate. The Tribunal has already made the direction of 14 March 2017 which allowed a review proceeding of the Second Notice to proceed in these proceedings. That procedure saves the cost of opening a new file. [37] This proceeding is now, by virtue of the direction of 14 March 2017, a Review of the decision to issue the Second Notice. [38] I do not consider that there is any ambiguity as to the status of the First Notice. The First Notice has been withdrawn by the QFES by its undertaking, and the application to review the First Notice has been dismissed. [39] Does any question of costs arise? Has the Body Corporate incurred further costs by the events in the proceedings? [40] The consent order made on 30 January 2017 made no reference to costs. The parties were evidently agreeable to each bearing their own costs. 11 [2016] QCA 337. -- 8 of 10 -- 9 [41] Any question of costs would therefore only arise for consideration after the making of the Directions of 30 January 2017. [42] I have found no merit in the Miscellaneous Application as to the status of the First Notice. The Body Corporate has brought the cost of pursuing that application in that respect upon itself, and there is no basis for the QFES to pay any costs to the Body Corporate in that regard. [43] The Body Corporate is now seeking to review the Second Notice. I cannot see that any additional cost has been caused to the Body Corporate by pursuing a Review of the Second Notice in these proceedings – rather, the costs of that review have been minimised by the Tribunal issuing the direction that the miscellaneous application is taken to be an application to review the Second Notice, which has become the decision under review, thereby avoiding the cost of opening a new file. [44] I therefore see no basis for the awarding of costs against the QFES either in respect of the First Notice or as to the filing of submissions as to the miscellaneous application. [45] The Miscellaneous Application is dismissed in relation to the First Notice with no order as to costs. [46] The Body Corporate now may proceed with the review of the decision to issue the Second Notice if it wishes. To that end, I make Directions for the Body Corporate to advise if it wishes to proceed with the review, and if so, for the filing of material by the Body Corporate, for the filing of material in reply, and then set the matter for a Directions Hearing. [47] I direct as follows: (1) Body Corporate for The Reserve CTS 31561 must advise the Tribunal and the Commissioner of the Queensland Fire and Emergency Services if it wishes to proceed with the review of the decision to issue Notice EN 110987, by: 24 November 2017 (2) If Body Corporate for The Reserve CTS 31561 advises the Tribunal, and Commissioner of the Queensland Fire and Emergency Services, that it wishes to proceed with the review of the decision to issue Notice EN 110987, then: (a) Commissioner of the Queensland Fire and Emergency Services must file in the Tribunal two (2) copies and give to Body Corporate for The Reserve CTS 31561 one (1) copy of the following documents in relation to the decision to issue Notice EN 110987 dated 30 January 2017: (i) A written statement of reasons and relevant documents under section 21(2) of the QCAT Act; and -- 9 of 10 -- 10 (ii) An indexed and page numbered bundle in date or other logical order of the documents and other material in its possession or under its control that may be relevant to the Tribunals’ review of the decision, by: 4:00pm on 22 December 2017 (b) Body Corporate for The Reserve CTS 31561 must file in the Tribunal two (2) copies and give to Commissioner of the Queensland Fire and Emergency Services one (1) copy of any statements of evidence, by: 4:00pm on 31 January 2018 (c) Commissioner of the Queensland Fire and Emergency Services must file in the Tribunal two (2) copies and give to Body Corporate for The Reserve CTS 31561 one (1) copy of any statements of evidence in reply, by: 4:00pm on 16 February 2018 (d) The proceeding is listed for a Directions Hearing on a date to be advised, not before 16 February 2018. -- 10 of 10 --