Durham v Adjudication Registrar [2015] QCAT 302

CITATION: Durham v Adjudication Registrar [2015] QCAT 302 PARTIES: Helen Durham (Applicant) v Adjudication Registrar (Respondent) APPLICATION NUMBERS: GAR340-14; GAR378-14 MATTER TYPE: General administrative review matters HEARING DATE: 4 August 2015 HEARD AT: Brisbane DECISION OF: Member Allen DELIVERED ON: 6 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adjudication Registrar’s applications to dismiss review applications GAR340-14 and GAR378-14 are dismissed. CATCHWORDS: APPLICATION TO STRIKE OUT OR DISMISS – whether application lacking in substance – where conditions imposed under original decision later withdrawn by decision-maker Building and Construction Industry Contracts Act 2004 (Qld) ss 65, 67, 77 and 97 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 21, 24, 47, 100 and 102 TDG v Department of Communities (Child Safety Services) [2011] QCAT 46 Evans v Queensland Building Services Authority [2011] QCAT 543 NCC v Department of Communities (Child Safety Services) [2012] QCAT 338 Exglen Pty Ltd v Commissioner of State Revenue [2015] QCAT 117 TM and Mental Health Review Board [2015] WASAT 73 -- 1 of 6 -- 2 LS v Mental Health Review Board [2013] WASCA 128 APPEARANCES: APPLICANT: Ms Durham appeared for herself assisted by Mr Davenport RESPONDENT: Ms Moody of Counsel instructed by Ms Stroud in house lawyer the Adjudication Registrar. REASONS FOR DECISION Introduction [1] Ms Durham is an adjudicator appointed under the Building and Construction Industry Payments Act 2004 (Qld)1. The Adjudication Registrar may impose conditions on the registration of an adjudicator2. [2] Two conditions were imposed on Ms Durham’s registration in 2014. The first related to the completion of mandatory transitionary training which was confirmed by a decision of the Registrar on internal review on 24 September 2014. Ms Durham has applied to the Tribunal to review that decision3, in application GAR340-14. [3] The second condition related to a requirement for Ms Durham to appoint an agent. That condition was confirmed by a decision of the Registrar dated 4 December 2014. Ms Durham has applied to the Tribunal to review that decision, in application GAR378-14. The law [4] The Tribunal when reviewing a decision of the Registrar does so by way of a fresh hearing on the merits4 with the purpose of producing the correct and preferable decision5. The Tribunal must decide the review and perform its functions in accordance with the QCAT and the Act under which the decision was made6. The role of the Registrar is to assist the Tribunal to make the correct and preferable decision7. The Tribunal may in a proceeding for review of a reviewable decision confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration by the decision maker8. 1 Part 4 Division 3 of the Building and Construction Industry Payments Act 2004 (Qld). 2 BCIP Act s 65(1)(b). 3 BCIP Act s 97. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2). 5 QCAT Act s 20(1). 6 QCAT Act s 19. 7 QCAT Act s 21. 8 QCAT Act s 24(1). -- 2 of 6 -- 3 [5] The Registrar has made an application to have the two review applications dismissed or struck out9. The Tribunal may exercise this power if it considers the proceeding or part of a proceeding is: a) Frivolous, vexatious or misconceived; or b) Lacking in substance; or c) Otherwise an abuse of process. The Registrar’s submissions [6] The ground given for the application to strike out or dismiss was that the decisions the subject of the review applications have been withdrawn by the Registrar and are no longer in effect. It was submitted that there is no longer any reviewable decision in effect which could be the subject of a decision of the Tribunal and that there would be no utility in the Tribunal making a final decision and it would be a waste of the Tribunals and parties time and resources. As such, the review applications were said to be lacking in substance (or, alternatively, are an abuse of process or are frivolous, vexatious or misconceived). The application for strike out or dismissal referenced s 65 and s 120 of the BCIP Act. The later section enables the Registrar to impose a condition for mandatory transition training prescribed by regulation. It is noted that s 120 was assented to on the date on which the Registrar’s decision in relation to the training condition was made on 24 September 2014. [7] While it was indicated that the decision in regard to the training condition had been withdrawn the actual decision of the Registrar was that “the condition imposed on Ms Durham’s registration with respect to mandatory transition training is hereby withdrawn and accordingly your registration as an adjudicator is no longer subject to that condition”10. This decision was sent to Ms Durham on or about 2 June 2015. A decision of the Registrar in similar terms was sent to Ms Durham in regard to the agent condition also on or about 2 June 201511. [8] The Registrar submitted that there is no utility in continuing the proceeding where, prior to a final hearing, the reviewable decision the subject of the review was withdrawn citing several cases in support of that proposition. In the first case, Evans v Queensland Building Services Authority [2011] QCAT 543, the application to review was made after a direction to rectify was issued by the Authority and is therefore not apposite to the current circumstances. [9] The second decision was that in NCC v Department of Communities, Child Safety and Disability Services [2012] QCAT 338, in that case the applicant sought to review decisions made by the Department in regard to placement of and contact with her children. The Department advised that new decisions had been made in regard to those matters and there was no response from the applicant to Tribunal requests as to whether she wished 9 QCAT Act s 47. 10 Exhibit 5 to Affidavit of Michael Hope Chesterman sworn 15 June 2015. 11 Exhibit 11 to the affidavit of Michael Hope Chesterman sworn 15 June 2015. -- 3 of 6 -- 4 to proceed with the review. The Tribunal stated that as “the decisions under review have been superseded by more recent decisions there would be little utility in QCAT reviewing those earlier decisions” The application was dismissed under s 47 of the QCAT Act. [10] The third decision was TDG v Department of Communities (Child Safety Services) [2011] QCAT 46 in that case the applicant was reviewing a decision of the Department to remove two children from her. One child was returned to her prior to her making her application and the other a month later. Again, the applicant was asked whether she would withdraw her application and she declined, as she wanted to obtain an amendment of the Departments records, disclosure of evidence held by the Department and compensation. The Tribunal noted that the original decision no longer has any effect and that the relief sought by TDG is not part of the outcomes the Tribunal can provide and that she was under a misapprehension as to the functions of the Tribunal. The Tribunal dismissed the application under s 47 stating it would be an abuse of process to continue with a review of a decision that has no current effect. [11] The decision of Pick v Moreton Bay regional Council [2012] QCAT 408 was also cited. In that case, a dog destruction order was made and the dog in question became deceased during the course of the application. The Tribunal dismissed the application, as it would have no practical utility. [12] Submissions in respect of several cases12 involving patients subject to the Mental Health Act 1996 (WA) were made the hearing. In those cases, patients were seeking review of decisions in regard to involuntary treatment orders and subsequent to the making of those decisions further decisions had been made changing their classification within the system. These applications were both dismissed having regard to the changed circumstances of the applicant following the new decisions. Ms Durham’s submissions [13] Ms Durham relevantly opposed the application to dismiss or strike out on the ground that that the Registrar’s withdrawal of the original decisions does not have the effect submitted. That is the original decisions exist unless and until they are set aside and can therefore still be set aside by the Tribunal. The withdrawal of the conditions takes effect when the information notice or the decision is received by the adjudicator or such later day as is stated in the notice. This is confirmed in the affidavit of Mr Chesterman sworn 27 July 2015 at para 3 where he states, “that by letter to the applicant dated 2 June 2015, I unreservedly withdrew that condition” (the agent condition) and later at para 9 where he states, “notwithstanding the withdrawal I maintain the agent condition was valid”. He makes similar statements in regard to the training condition later in his affidavit. 12 TM and Mental Health Review Board [2015] WASAT 73 and LS v Mental Health Review Board [2013] WASCA 128. -- 4 of 6 -- 5 [14] Mr Chesterman further states13 that he is prepared to provide an undertaking that I will not take any action against the applicant with respect to her non-compliance with respectively each of the conditions. [15] The purpose of the undertaking reflects Ms Durham’s concern that she has been in breach of the conditions14 from the time the original decisions were made to the time of their withdrawal. Contravening a condition is grounds for suspension or cancellation of an adjudicator’s registration15. The withdrawal of the conditions does not change the fact that Ms Durham has been in breach and she wishes to have an opportunity to have the decisions reviewed and hopefully set aside so that then she will never have been in breach. [16] Through various decisions of the Tribunal, the Registrar has been estopped from taking any action in regard to these breaches. The Registrar was required to give an earlier undertaking that he would not take any action by order of the Tribunal dated 7 November 2014. The decisions of the Registrar were later stayed by order of the Tribunal dated 19 February 2015. That stay decision will cease to apply once the matter before the Tribunal has been determined including by way of dismissal under s 47 of the QCAT Act. [17] Ms Durham cited authorities which held that there should be a high threshold reached before a matter is dismissed under a power in the terms of s 47 of the QCAT Act. The position is summarised in the decision of ASM Howard in Exglen Pty Ltd v Commissioner of State Revenue16. Where she states at para 12 that “On a strike out application, the evidence must be weighed to reach a conclusion about whether a claimant has an arguable case. It should be used sparingly to prevent abuse when a claim is groundless or futile, but if there is a real question of law or fact, summary dismissal is not appropriate”. Discussion [18] In this case the Registrar is not submitting that Ms Durham’s applications for review lacked merit at the time they were made but that later decisions of the Registrar mean that there is no utility in continuing the proceeding because the conditions the subject of the decision have been withdrawn. This goes to whether relief is futile. In the cases cited by the Registrar, the changed circumstances meant that the applicants had already obtained the relief sought by having children returned, or new placement or contact decisions and that as such any order of the Tribunal would not put them in a better position than they were already in. [19] In this case, the original decisions imposing conditions on Ms Durham’s registration have not been withdrawn and as such, Ms Durham was until the conditions were withdrawn in breach of the Act and will continue to have been so up until that time. She wishes to have the opportunity of setting 13 Affidavit of Michael Hope Chesterman sworn 27 July 2015 at para 8 (Agent Condition) para 23 (training condition). 14 BCIP Act s 67. 15 BCIP Act s 77. 16 [2015] QCAT 117. -- 5 of 6 -- 6 aside the original decisions so that she will not have been in breach at any stage. The withdrawal of the conditions has not done this. [20] The Tribunal considers that there is still utility in proceeding with the application to determine whether the conditions should have been imposed on Ms Durham’s registration. It is not sufficient for the Registrar to offer to give an undertaking not to take action for breach of the conditions, which he still considers valid. If the Tribunal sets aside the decisions of the Registrar then Ms Durham will not have been in breach of the Act and it is her right to have that question determined. [21] The adjudication Registrars applications to dismiss review applications GAR340-14 and GAR378-14 are dismissed. Costs [22] The Tribunal notes that each party to a proceeding are to bear their own costs17 unless the interests of justice require otherwise18. The Registrar indicated that he would not be seeking costs. The Tribunal notes that Ms Durham appeared for herself at the hearing. There will be no order as to costs. 17 QCAT Act s 100. 18 QCAT Act s 102. -- 6 of 6 --