Dunne v Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes [2016] QCAT 238

CITATION: Dunne v Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes [2016] QCAT 238 PARTIES: Bruce Dunne Heidi Dunne (Applicants) v Dwyer Corporation Pty Ltd t/as Dwyer Quality Homes (Respondent) APPLICATION NUMBER: BDL105-16 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 14 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for notice requiring witness to attend or produce document or thing filed 13 June 2016 is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – where proceeding listed for compulsory conference – where party to proceeding sought order requiring attendance of witness at compulsory conference – whether compulsory conference a hearing Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 67, 68, 70, 74, 97 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 14 June 2016 I refused an application by Mr and Mrs Dunne for a notice to issue requiring a witness to attend a compulsory conference. These are my reasons. [2] Dwyer Quality Homes built a home for Mr and Mrs Dunne. The Dunnes’ say that the building work is defective and specifically that a termite barrier was not properly installed as a result of which termites have entered their dwelling. [3] The Dunnes filed an application for a domestic building work in the tribunal. Standard directions issued on 11 May 2016 progressing the matter to a compulsory conference on 22 July 2016. On 13 June 2016 the Dunnes filed an application for a notice requiring Mr Blair Lowrie to attend the compulsory conference. The application does not make clear who Mr Lowrie is however it appears he may be an inspector or other officer with the Queensland Building and Construction Commission (QBCC). The application for a domestic building dispute filed by the Dunnes makes clear that the QBCC has had some involvement with the building works the subject of the dispute. [4] Chapter 2, Part 6, Division 2 of the QCAT Act is concerned with compulsory conferences. The tribunal may direct the parties to a proceeding to attend a compulsory conference.1 A party to a proceeding may be directed to attend the conference in person or to be represented by a person who has authority to settle the dispute.2 A compulsory conference must be held in private unless the person presiding over the conference directs otherwise.3 Evidence of anything said or done during a conference is not admissible at any stage in the proceeding.4 [5] Chapter 2, Part 6, Division 5 of the QCAT Act is concerned with hearings. ‘Hearing’ is not defined for the purposes of Division 5. For the purposes of Chapter 2, Part 7, Division 7 a hearing is defined as including a compulsory conference for a proceeding if the person presiding over the conference decides the proceeding under s 72(1)(b) of the QCAT Act. This definition has quite specific application, relating as it does to applications to reopen. The definition does not apply to Division 5. [6] The tribunal may, by written notice, require a person to attend at a stated hearing of a proceeding to give evidence5 on the application of a party.6 It is clear from Chapter 2, Part 6, Division 5 that a compulsory conference is not a hearing for the purposes of Division 5. A hearing must be held in public; a compulsory conference is conducted in private. Evidence is given at a hearing, and unless otherwise ordered by the tribunal, is on the public 1 QCAT Act, s 67(1). 2 Ibid, s 68(1). 3 Ibid, s 70(2). 4 Ibid, s 74(1). 5 Ibid, s 97(1)(b). 6 Ibid, s 97(2). -- 2 of 3 -- 3 record; no evidence is given at a compulsory conference what is said at the conference remains confidential. This (by no means exhaustive) comparison illustrates why I conclude that a compulsory conference is not a hearing for the purposes of Division 5. [7] There being no hearing of the proceeding on 22 July 2016, the application by the Dunnes for a notice requiring Mr Lowrie to attend the compulsory conference is refused. -- 3 of 3 --