Durham v Adjudicator Registrar [2014] QCAT 666

CITATION: Durham v Adjudicator Registrar [2014] QCAT 666 PARTIES: Helen Durham (Applicant) v Adjudicator Registrar (Respondent) APPLICATION NUMBER: GAR340-13 MATTER TYPE: General administrative review matters HEARING DATE: 11 December 2014 HEARD AT: Brisbane DECISION OF: Member Browne DELIVERED ON: 19 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adjudicator Registrar must file two (2) copies in the Tribunal and serve one (1) copy on Helen Durham the following documents by 4:00pm on 16 January 2015: a. Notes of the consultations undertaken by the registry subsequent to the release of the Wallace Report. b. Any template or proforma correspondence provided to course participants in relation to training. 2. Helen Durham’s application for production of documents relating to legal advice obtained by the Adjudicator Registrar referred to in Annexure ‘A’, Part 1, paragraph 3 is refused. 3. Helen Durham’s application for the production of information referred to in Annexure ‘A’, Part 2 is refused. CATCHWORDS: Production of documents – relevance – waiver of privilege Building and Construction Industry Payments -- 1 of 5 -- 2 Act 2004 (Qld) s 65, s 97 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 20, s 21, s 24, s 62 Balnaves v Smith & Anor [2008] QSC 215, cited Osland v Secretary to the Department of Justice [2008] HCA 37, cited APPEARANCES: APPLICANT: Helen Durham by telephone RESPONDENT: Adjudicator Registrar represented by Mr Peter Franco QC of counsel instructed by Holding Redlich REASONS FOR DECISION [1] Ms Durham has filed an application to review a decision made by the Adjudicator Registrar to impose mandatory transitionary training conditions on her adjudication registration.1 [2] The Tribunal in exercising its review function must determine the reasonableness of the training conditions imposed that are for the purposes of s 65(1)(b) of the Building and Construction Industry Payments Act 2004 (Qld) (‘B&CIP Act’) considered to be ‘appropriate to give effect to [the] Act’. [3] The Tribunal in reviewing the decision must produce the correct and preferable decision and must hear and decide the review by way of a ‘fresh hearing on the merits’.2 [4] The Adjudicator Registrar as the decision-maker has a duty to ‘help the Tribunal’ so that it can make its own decision on review.3 [5] Material has been provided to the Tribunal as required under s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), including a written statement of reasons and documents that ‘may be relevant to the Tribunal’s review of the decision’.4 [6] Ms Durham has filed an application for the production of documents by the Adjudicator Registrar including notes of consultations, training materials, legal advice and information.5 1 Application to review filed 23 October 2014 to review the decision made by the Adjudicator Registrar on 24 September 2014. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20. 3 QCAT Act s 21. 4 Ibid. 5 Application for Miscellaneous Matters filed 1 December 2014. -- 2 of 5 -- 3 [7] The Adjudicator Registrar has agreed to produce some of the documents.6 The remaining documents and information in dispute relates to legal advice referenced in a training presentation slide and information about the training including the ‘marking schema’ for course participation. The Tribunal’s power to give a direction [8] The Tribunal has the power to give a direction under s 62(3) of the QCAT Act requiring a party to the proceeding to produce a document or information if such direction is necessary for the ‘speedy and fair conduct of the proceeding’.7 [9] The Tribunal also has the power under s 21(3) to require the Adjudicator Registrar to provide additional documents or ‘things’ in the decision- maker’s ‘possession or control’ that ‘may be relevant to the Tribunal’s review of the reviewable decision’.8 [10] Ms Durham requires the production of legal advice obtained by the Adjudicator Registrar that was disclosed in a training presentation slide as follows: Adjudicator Training  Transitionary training essential and mandatory as per condition of registration, which external legal advice has confirmed as lawful. Section 116 of amended Act removes any doubt regarding entitlement of Registrar to require this training.  CPD program, which external legal advice has confirmed as lawful.  Regulations will be amended to provide suitable training provider for certificate course into 2015.9 [11] The content of the legal advice referenced in the slide is not clear. Furthermore, there is no reference in the slide to the ‘reasonableness’ of the training for the purposes of s 65 of the B&CIP Act. The slide does however refer to the ‘CPD program’ and states that external advice ‘has confirmed [it] as lawful’. [12] The issue of reasonableness of the training conditions imposed and whether the conditions were made in accordance with the power given under the B&CIP Act is a matter for the Tribunal on review to consider. I am not satisfied that the production of the legal advice referenced in the slide is relevant to the issues to be determined on review and will reduce the hearing time of the application by otherwise narrowing the issues to be considered or by assisting the Tribunal in arriving at the correct and preferable decision. 6 Direction made by consent for the production of documents including notes of consultations undertaken by registry staff and correspondence provided to training participants. 7 QCAT Act s 62(1). 8 QCAT Act s 21(3). 9 Affidavit of Ellen Mary Corrigan filed 11 December 2014, Attachment marked ‘EMC1’ page 13. -- 3 of 5 -- 4 [13] The Adjudicator Registrar has produced a complete copy of the training material together with other documents relevant to the review application. It will not be open to Ms Durham in the review hearing, unless the Tribunal orders otherwise, to cross-examine the Adjudicator Registrar about ‘why it made the decision’.10 As provided in the QCAT Practice Direction No 3 of 2013, the decision-maker’s role in the proceedings is not adversarial and the decision maker must ‘use their best endeavours to assist the Tribunal’. [14] I do not accept Ms Durham’s submission that the Adjudicator Registrar has otherwise waived any client legal privilege that may attach to the legal advice referenced in the slide. [15] In Balnaves v Smith & Anor11 Justice Douglas of the Supreme Court considered the High Court decision in Osland v Secretary to the Department of Justice12 in determining the issue of waiver of privilege. In Balnaves v Smith & Anor13 Justice Douglas said the following about Osland’s case: The High Court’s conclusion that the Attorney-General’s press release was not inconsistent with the maintenance of the confidentiality which the privilege is intended to protect depended on the circumstances in which the statement was made. There the Court concluded that the Attorney-General was seeking to give the fullest information as to the process that had been followed which at the same time following the long standing practice of not giving the reasons for the decision. The Court concluded that this did not involve inconsistency and involved no unfairness to the appellant on the basis that, if she had a legal right to reasons for the Governor’s decision, then she still had that right and if she had no such right the press release did not deprive her of anything to which she was entitled.14 [16] In this case, the advice was referenced in a presentation slide at training. There was no reference to the content of the advice or the reasons for the advice to indicate that such advice is inconsistent with the decision made to impose training conditions. The considerations of ‘inconsistency’ were applied by Justice Douglas in the Supreme Court decision of Balnaves v Smith & Anor.15 Similarly, in this case there is no inconsistency between ‘conduct’ of the Adjudicator Registrar in the disclosure and ‘maintenance of the confidentiality, effecting a waiver of privilege’.16 In this case the reference to advice in the slide is given in the context of the training as being ‘essential and mandatory’. This is clearly consistent with the decision made by the Adjudicator Registrar being the subject of review to impose mandatory training conditions under s 65 of the B&CIP Act. 10 QCAT Practice Direction No 3 of 2013. 11 [2008] QSC 215. 12 [2008] HCA 37. 13 [2008] QSC 215. 14 Ibid [16]. 15 [2008] QSC 215. 16 Ibid [17]. -- 4 of 5 -- 5 [17] I have also considered Ms Durham’s application for the production of information relating to participation across all courses including the ‘marking schema’ for course participation. [18] The Adjudicator Registrar has provided a complete copy of the training material distributed to training participants. There is also information contained in the statement of reasons and in the affidavit material prepared and filed on behalf of the Adjudicator Registrar about training expectations including training assessment. [19] I have carefully considered the submissions made by Ms Durham at the oral hearing and in writing.17 I am not satisfied that Ms Durham has raised any new issues in relation to the relevancy of the information about the training sought to be produced and that the disclosure of such information would otherwise assist the Tribunal in meeting its objectives to deal with matters in a way that is ‘accessible, fair, just, economical, informal, and quick’.18 [20] The appropriate order is that the application for the production of documents relating to legal advice and information about the training including participation across all courses and the ‘marking schema’ for participation, is refused.19 17 Outline of Applicant’s Submissions filed 15 December 2015. 18 QCAT Act s 3. 19 As referenced in Annexure ‘A’, Part 1, paragraph 3 and Annexure ‘A’, Part 2 of the Application for Miscellaneous Matters filed 1 December 2014. -- 5 of 5 --