Ainsworth v Body Corporate for Viridian Noosa Residences [2014] QCATA 175

CITATION: Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034 [2014] QCATA 175 PARTIES: Kjerulf Ainsworth (Applicant/Appellant) v Body Corporate for Viridian Noosa Residences CTS 34034 (Respondent) APPLICATION NUMBER: APL365-13 MATTER TYPE: Appeals HEARING DATE: 14 May 2014 HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 11 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is dismissed. CATCHWORDS: BODY CORPORATE AND COMMUNITY MANAGEMENT – APPEAL AND FRESH EVIDENCE – where appeal on a question of law only – where unit owner requested Body Corporate records – where Body Corporate Manger failed to comply with request within time – where conduct referred to adjudication – where allegation that emails sent to the Body Corporate Manager were forwarded to a third party – where evidence produced of emails being forwarded found to be unsubstantiated – where applicant sought leave to file further evidence of actual emails with a “forwarded” notation – where application refused – where allegation the Adjudicator failed to investigate – whether proper ground established for further investigation – whether failure to investigate based on an error of law – where alleged failure to find the respondent was in breach of s 205 of the BCCM Act – where finding of fact made that prescribed fee not paid. -- 1 of 14 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146 and 146 Body Corporate and Community Management Act 1997 (Qld) Carmel By the Sea [2012] QBCCM Cmr 297. Clarke v Japan Machines [1984] 1 Qd R 404. Underwood v Department of Communities (2013) 1 Qd R at 252; Rana v Repatriation Commission [2011] FCAFC 124; Phillips v Commissioner for Superannuation [2005] FCAFC 2; Waterford v The Commonwealth (1987) 163 CLR 54 Flegg v Crime and Misconduct Commission [2013] 376; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 130; Grut-Mackay v Cherwood Lodge CTS 20711 [2004] QDC 229. APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr C Francis of counsel instructed by Hynes Lawyers. RESPONDENT: Mr Chesterman instructed by Nicholsons Solicitors. REASONS FOR DECISION [1] Mr Ainsworth is the owner of Lot 9 in the residential unit complex Veridian Noosa Residences. A dispute arose between himself and the Body Corporate Manager (“BCM”) for Viridian Noosa which was ultimately referred to an adjudication under the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’). [2] The relief sought in the adjudication was that: 1. A declaration that the respondent failed to comply with its statutory obligation, under section 2005 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA), by failing to provide copies of records requested by the applicant on 5 and 20 December 2012 and 9 January 2013 within 7 days of receiving those requests. 2. An order that the respondent must give the applicant copies of all correspondence between the BCM and any committee members concerning letters dated 5 and 20 December 2012 from Hynes -- 2 of 14 -- 3 Lawyers to the BCM or their request for information contained within them [3] On 11 July 2013, the Adjudicator dismissed the application. [4] This is an appeal from the Adjudicator’s decision under s 289 of the BCCM Act. Subsection 2 of that section provides that an appeal to the Appeal Tribunal can only be on a question of law. Background [5] On 5 December 2012 the applicant’s solicitors, Hynes Lawyers, wrote to the BCM1 on behalf of Mr Ainsworth enquiring whether a recent decision of an Adjudicator relating to Viridian Noosa Residences2 had been circulated to all lot owners within the community title scheme. The letter went on to say that if the committee advised that it did not intend to circulate that decision, then pursuant to s 205(2) of the BCCM Act the applicant requested that the BCM provide copies of the ‘Roll maintained pursuant to s 194 of the Accommodation Module’; and, ‘Email addresses for any lot owner held on record’. An undertaking was provided that the applicant would pay the prescribed fee for obtaining the records set out in s 203(1)(b) of the Accommodation Module. [6] There was no response to this letter so on 20 December 2012, Hynes Lawyers again wrote to the BCM referring to the earlier correspondence and reiterating the request for the records which, it was pointed out, the Body Corporate was obliged to supply within seven days of receiving the request. That was no later than 13 December 2012. The BCM was also advised that if there was no response to that correspondence by 21 December 2012 an application would be made to the Office of the Commissioner for Body Corporate and Community Management. There was no response by the stipulated time. [7] Again, there was no response to the letter of 20 December 2012, so Hynes Lawyers again wrote to the BCM on 9 January 2013 noting that there had been no response to the earlier correspondence. The letter asserted that: The Body Corporate’s ongoing failure to provide the requested information amounts to a contravention of s 205(2) of the Body Corporate and Community Management Act 1997 (Qld). Our client reserves his right to take action to address that contravention but makes a final request that it be remedied forthwith by provision of copies of the requested records, being: (a) the roll maintained pursuant to s 194 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld); and (b) the email addresses for any lot owner held on record. 1 Stuart Silver King and Burns, Community Managers. 2 [2012] QBCCM Cmr 532. -- 3 of 14 -- 4 [8] Section 205 of the BCCM Act relevantly provides: (1) This section provides for the giving of information by the body corporate for a community titles scheme from the body corporate’s records. (2) Within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, the body corporate must do either or both of the following as requested by the interested person (a) permit the person to inspect the body corporate’s records; (b) give the person a copy of a record kept by the body corporate. Maximum penalty – 20 penalty units. [9] Hynes Lawyers, again on behalf of Mr Ainsworth, also requested copies of any correspondence that might have passed between the BCM and any committee member concerning the letters of 5 December 2012 and 20 December 2012. Hynes Lawyers again provided an undertaking to pay any fees associated with the production of the Roll maintained pursuant to s 194 and the email addresses. [10] Finally, on 15 January 2013, the BCM responded and enclosed a copy of the Roll List together with the emails for the lot owners. The letter also went on to say: The other matters raised in your letters will be referred to the Committee at its next formal Meeting. [11] The BCM’s conduct in not responding to the earlier correspondence resulted in that conduct being referred to the Office of the Commissioner. It was the substance of that complaint that ultimately went to the adjudication. The Adjudication [12] In respect of the adjudication, the applicant filed submissions in support of the orders sought on 15 February 2013. The relief sought is that set out above and the complaint was, essentially, that as the documents sought in the correspondence were Body Corporate records within the meaning of s 204 of the BCCM Act,3 the BCM was required to comply with the request within seven days. In addition, the fact that the BCM told the applicant that it would refer his correspondence to the committee for consideration, was unnecessary because the applicant was an interested person, being the owner of a lot. This is no doubt true however, because the BCM did comply with the request by providing the Roll List together with the email addresses, the matter that was to be referred to the committee, it seems to me, was whether or not the earlier decision of Viridian Noosa Residences would be circulated to the lot owners. 3 And Carmel By the Sea [2012] QBCCM Cmr 297. -- 4 of 14 -- 5 [13] The Body Corporate responded to those submissions and essentially contended that the adjudication procedure was an abuse of process. Firstly, because all of the documents requested had been supplied and, secondly, no fee had been paid and therefore there was no obligation to comply, and finally because it asserted that there was no correspondence passing between the BCM and the committee. [14] Not satisfied with that response, the applicant then embarked on its own investigation of the Body Corporate’s email records at the relevant time. In a further submission to the Commission on 24 June 2013, the applicant produced further evidence of a search of the Body Corporate emails undertaken by Sun City Legal Services on 15 April 2013. The search did not reveal any documents passing between the BCM and the committee or other persons as a consequence of the emails from Hynes Lawyers to the BCM of 5 December 2012, 20 December 2012 and 9 January 2013. However, what the search did reveal, and as was submitted by the applicant’s solicitors, was that the emails, from Hynes Lawyers, were ‘forwarded’, but there was no detail on those emails to whom they were forwarded. The applicant then submitted to the Adjudicator that: 3.6 While the Body Corporate submits that there was no correspondence between the BCM and the Committee relating to the Request, the emails received on 5 December 2012 and 20 December 2012 containing the Requests are marked with a notification stating that the emails were forwarded by Mr Atkinson on the day they were received. 3.7 The original emails recovered from the record are electronically attached to the email forwarding this submission to the Commission’s office. They reveal that: - (a) The letter dated 5 December 2012 from Hynes Lawyers was received by the BCM at 9:14 on 5 December 2012 and forwarded at 9:34 on the same day; and (b) The letter dated 20 December 2012 from Hynes Lawyers was received by the BCM at 11:34 am on 20 December 2012 and forwarded at 12:08 pm on the same day. 3.8 Nothing recovered from the record includes the emails forwarding on the request. As the emails are missing, the applicant does not know who the emails were forwarded to. [15] Because of that information, the applicant then contended that the Adjudicator was under a duty to, or should have, investigated the matter further under the investigative powers contained in s 271 of the BCCM Act. The basis for this contention was not only the fact that there was an assertion that the emails were forwarded, but also because the annexures to the submissions indicated that there had been previous issues about the BCM keeping proper records as the BCM is required to do under the legislation.4 Because of this, the applicant contended, the Body Corporate was not being forthright with respect to the applicant’s requests for any documents that might have been generated as a result of the email being forwarded. In all the circumstances, on the basis of that contention it was 4 Applicant submissions 24 June 2013 at [4.1]. -- 5 of 14 -- 6 incumbent on the Adjudicator, the applicant submits, to investigate the issue about the forwarded emails. [16] After considering all of the submissions by both parties, the Adjudicator dismissed the application for the orders sought in paragraph 2 above. In doing so, she did express concerns about the respondent’s failure, through the BCM, to respond to the letters of 5 December 2012 and 20 December 2012 in a timely way. She did not regard the first request as a formal request but went on to say: While I agree that the first letter appeared to be conditional request (sic), I consider that the letter of 20 December 2012 clearly indicated the applicant was now making an unconditional written request for records. However I do not consider the applicant was entitled to be given these by 21 December. Rather I consider the Body Corporate should have promptly advised the applicant of the costs of obtaining the requested records and then provided them within seven days of receipt of payment. Whilst some reasonable allowance would need to be made assuming that the BCM’s office was closed over Christmas – New Year period, it is concerning that the Body Corporate did not respond for three and a half week. [17] It is evident from the above that the Adjudicator found the BCM was not obliged to provide the records until seven days after the fee was paid. [18] She then went on to consider the substance of the complaint with respect to the failure to keep proper records. She acknowledged that if there were any communications between the BCM and the committee because of the correspondence of 5 December 2012 and 9 January 2013 those communications should have been retained within the respondent’s records and supplied pursuant to the request. That observation is no doubt correct as is the observation that there is an onus on the applicant to establish that the documents did exist. In this respect the Adjudicator was not satisfied that the onus had been discharged. She made reference to the notation that the emails had been forwarded and said: [36] While it would not be surprising if the BCM had communicated with committee members on this matter during this period, it is also not surprising in all the circumstances if it had not. I note that the period in question was only just over a month and included the Christmas – New Year closure. Moreover it seems tolerably clear that the BCM was leaving the correspondence to be considered by the committee at its next meeting. [37] The applicant has not pointed to any tangible evidence that any communications occurred, other than unsubstantiated claims that the applicant’s letters were forwarded by the BCM. The applicant now wants the BCM to be required to provide copies of the forwarding emails but has not demonstrated to me that the emails were forwarded or they have specifically queried the BCM on this point. [38] On balance, I am not satisfied that the applicant has provided sufficient basis to suppose that the correspondence exists to warrant any further investigation on this point. -- 6 of 14 -- 7 The Appeal [19] In addition to filing submissions in the appeal, the applicant also filed an application to adduce further evidence in accordance with the amended notice of appeal which sought the following order: 1A. That the documents being exhibits “JAC-02”, “JAC-05” and “JAC-06” to the affidavit of Jason Alexander Carlson, sworn and filed on 20 January 2014, be received as further evidence. [20] The first exhibit ‘JAC-02’ is a screen shot of the email from Hynes Lawyers to John Atkinson of the BCMs showing a notation ‘You forwarded this message on 5/12/2012 9:34 am’. There is also a screen shot of the email of 20 December 2012 showing a notation ‘You forwarded this email on 20/12/2012 12:06 pm’. [21] The other two exhibits relate to a specific request by the applicant’s solicitors for copies of the emails forwarded in accordance with the notation. The letter in response from the Body Corporates solicitors, Nicholsons, advised that copies of the ‘forwarded emails’ were not retained because they were irrelevant or inconsequential, the solicitor for the respondent was one of the recipients of the emails and that was forwarded in accordance with an instruction from the committee to forward all correspondence to him. Therefore, those copies did not form part of the Body Corporates records. In addition, the respondent’s solicitors contended that the request was trivial, unreasonable and was causing a nuisance to the respondent and interfering with the normal administration of the respondent. [22] I indicated at the commencement of the hearing that the question of whether the further evidence would be admitted in the appeal would be reserved. [23] For the purposes of that application I am prepared to accept that the emails which were attached to the applicant’s submissions in reply on 24 June 2013, although having the emails attached to the emails enclosing the submission those emails did not show the notation ‘You forwarded this message on …’. The reason for that omission is technical and is set out in an affidavit of Matthew Ross Parks filed on 23 January 2014. He said that when the emails are forwarded on the ‘Microsoft Exchange Server ES used by Hynes Legal automatically strips certain headers (including the Reply Date Notations) from emails when they are forwarded to external email systems or printed’. [24] The effect of this evidence is that, although the submission was made to the Adjudicator that the emails contained the notation that they were forwarded, the actual emails in the hands of the Adjudicator at the time the decision was made did not show the notation. The applicant submits this is obviously a relevant issue because of the specific finding made by the -- 7 of 14 -- 8 Adjudicator that the contention that the emails were forwarded was ‘unsubstantiated’. [25] It is worth noting at this stage that this appeal is brought under the BCCM Act. Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out what the Appeal Tribunal can do when deciding an appeal against a decision on a question of law only. Unlike s 147, the appeal is not ‘decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal’. That does not mean that, in certain circumstances even where the appeal is on a question of law, further evidence cannot be received by the Appeal Tribunal. However, the evidence must go to a question of law. [26] The applicant contends that the basis to admit this further evidence falls squarely within Clarke v Japan Machines5 because: (a) The evidence could not have been obtained with reasonable diligence for use at the trial; (b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; (c) The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. [27] Having accepted that the actual email showing the notation was not before the Adjudicator and, her finding that the assertion that the email received by Mr Atkinson was forwarded, albeit to unknown recipients, was not made out, the criteria set out in (b) and (c) would be satisfied. That is on the basis that because of the notation on the actual email, it would be difficult to conclude that the contention was unsubstantiated. [28] Whether the evidence could not have been obtained with reasonable diligence for use in the on the papers hearing before the Adjudicator also seems to be satisfied. For the purposes of the admission of the further evidence, I am prepared to find that it was reasonable for the solicitors preparing the submissions for the applicant to assume that the emails as forwarded would show the notations. It is all very well now to say that it would have been preferable to provide hard copies to the Adjudicator but in this age of electronic transmission of documents, it is not unreasonable to assume that a document, which is attached to an email, would remain intact upon its being sent to a recipient. [29] The applicant also relies on the Tribunal’s obligations under s 28 of the QCAT Act in this application to admit the further evidence. Those obligations include not being bound by the rules of evidence, or the practices or procedures applying in the Courts of record other than to the extent to the Appeal Tribunal adopted those rules practices or procedures. In addition, the Appeal Tribunal can inform itself in any way it considers 5 [1984] 1 Qd R at 404. -- 8 of 14 -- 9 appropriate. In support of that submission, the applicant relies on the recent Court of Appeal judgments in Underwood v Department of Communities6. However, unlike Underwood this is not an appeal under s 147 of the QCAT Act, which involves an appeal on a question of fact or mixed law and fact to be decided by way of rehearing with or without additional evidence. This appeal is under s 146 of the QCAT Act on a question of law only and therefore any new or further evidence must go to establishing an error of law for it to be admitted. If it was intended that the same criteria be applied as identified by Peter Lyons J, and to a degree by Muir AJ in Underwood, the legislature would, no doubt, have included a similar provision to s 147 as to how the appeal was to be conducted. That is not the case and therefore s 3 and s 28 of the QCAT Act have limited, if any, application to an appeal on a question of law. [30] It was submitted during the oral hearing that because the evidence of the emails being forwarded was not before the Adjudicator, as the applicant supposed, he has been denied procedural fairness because the decision was made in the absence of relevant evidence. [31] A denial of procedural fairness is of course an error of law. Although this was the subject of the second further amended notice of appeal I refused to admit at the hearing, this ground was genuinely agitated by both parties during the course of the hearing and, in the submission of the applicant, fell within the grounds of appeal generally. [32] However, the question here, to give the further evidence any relevance, must be, was there a denial of procedural fairness? To establish this there must be some error identified on the part of the decision maker in the process, here, the adjudication. No error on her part has been identified. She made a decision on all of the evidence before her. If there was an error, although inadvertent, it was that of the applicant’s solicitors. Simply because the applicant assumed certain evidence was before the Adjudicator, and it was not, that cannot amount to a denial of procedural fairness and therefore an error of law. The further evidence goes to a fact and even if it was admitted the appeal against the Adjudicator’s decision, insofar as it relates to this evidence, could only succeed on a question of fact which is not permissible. The BCCM Act only allows an appeal on a question of law. [33] Support for this conclusion can be found in the discussion by the Full Court of the Federal Court concerning an appeal on a question of law in Rana v Repatriation Commission.7 In this case the Court was asked to admit further evidence in an appeal against a finding of fact by the primary tribunal. The appeal under the s 44 of the Administrative Appeals Tribunal Act is a right to appeal to the appeal court on “a question of law”.8 In the course of the joint judgment, the Court referred to Phillips v Commissioner 6 (2013) 1 Qd R at 252. 7 [2011] FCAFC 124. 8 Ibid at [11]. -- 9 of 14 -- 10 for Superannuation9 which said that further evidence must have a tendency, if admitted, to demonstrate an error of law.10 The caution expressed by the Court in considering whether to admit further or fresh evidence in an appeal on a question of law is that if it relates to a factual issue and would not demonstrate an error of law the discretion to admit it should not be exercised. [34] Also, in Waterford v The Commonwealth11 where a decision of the Repatriation Review Tribunal could be appealed on a question of law, Brennan J said: A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by error of law. Section 44 of the AAT Act conferred on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia ‘from any decision of the Tribunal in that proceeding but only ‘on a question of law. The error of law which the appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have let the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. [35] Returning then to s 146 of the QCAT Act, to admit further factual evidence in an appeal on a question of law only, which would not demonstrate an error of law but simply was admitted to satisfy the obligations imposed by s 28, and the objects as set out in s 3 of the QCAT Act would, in my view, be contrary to principle. This also explains why the provisions set out in s 147 that the appeal is to be conducted as a rehearing with discretion to admit further evidence is not reflected in s 146. [36] This conclusion applies equally to the other two exhibits ‘JAC-05’ and ‘JAC-06’ which were generated subsequent to the decision of the Adjudicator. They cannot have any relevance to the substantive decision and go well beyond the evidence that was thought to be before at the time the decision was made. [37] Therefore the application to admit further evidence in the appeal is dismissed. Grounds 1 and 2 [38] These two grounds of appeal relate to the Adjudicator’s failure to find that the emails referred to above were forwarded as submitted in the applicant’s further submissions to her. A summary of the grounds of appeal are articulated as follows: 9 [2005] FCAFC 2 at [13]. 10 Rana v Repatriation Commission supra at [20]. 11 (1987) 163 CLR 54 and referred to in Flegg v Crime and Misconduct Commission [2013] 376 paragraph 29 where Gotterson JA considered an appeal on a question of law only. -- 10 of 14 -- 11 In summary grounds 1 and 2 are that the Adjudicator erred in law in:- (a) making the findings referred to in paragraphs 6(l), 6(m) and 69(p) above relating to the lack of any evidence suggesting that the Requested Records existed; (b) failing to find that the records of the BCM (and in particular the computer and email records of Mr John Atkinson of Steward Silver King and Burns) demonstrated that;- (i) the said letter dated 5 December 2012 had been received by the BCM by email at 9.14am that day and forwarded on by the BCM by email at 9.34am that day; (ii) the said letter dated 20 December 2012 had been received by the BCM by email at 11.34am that day and forwarded on by the BCM by email at 12.08pm that day. [39] The submission from the applicant is that there was satisfactory evidence before the Adjudicator to suggest the Requested Records existed and there was logically probative evidence of the existence of the records requiring the Adjudicator to investigate further. [40] For these submissions to be accepted and thereby conclude that there was an error of law, the appeal tribunal must be satisfied that the conclusion reached by the Adjudicator was not open on the evidence before her. In Azzopardi v Tasman UEB Industries Ltd12 Kirby P set out the circumstances where factual error could result in an error of law as follows: But where, because of the development of the obligation of reasoned decision-making, the judge, unlike a jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, an error in point of law will be established such as will attract the jurisdiction of this Court and warrant its intervention. [41] The three stage process referred to by his Honour is firstly, the fact finding; secondly, rule-stating and thirdly rule application. [42] What is immediately apparent, having regard to the applicant’s summary of the grounds of appeal and the submission, is that the applicant’s complaint is that the Adjudicator did not make the findings of fact that she was expected to make on the evidence that he thought was before her. However as I have said above, when one considers the actual evidence before her, it is difficult to see any basis, along the lines of those referred to in Azzopardi, to disturb her finding of fact that the contention that the emails were forwarded was not supported by “tangible evidence”. This also applies to her conclusion that that the contention the emails were forwarded as being “unsubstantiated”. 12 (1985) 4 NSWLR 130 at 151. -- 11 of 14 -- 12 [43] It also follows that on the basis of the findings of fact made there was no obligation on the part of the Adjudicator to investigate further. Ground 3 [44] This ground generally contends that the Adjudicator erred in law in failing to discharge her obligation to investigate the application pursuant to s 269 and s 271 of the BCCM Act; that she failed to require Mr Atkinson of the BCM to provide a statutory declaration identifying the persons to whom the emails were forwarded and whether there was any communication between Mr Atkinson and the Body Corporate Committee members concerning the emails; and also she failed to insist that Mr Atkinson provide copies of the forwarded emails. [45] Section 269(1) of the BCCM Act provides that: The Adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application. [46] The powers of investigation are set out in s 271 of the BCCM Act and it provides: (1) When investigating the application, the Adjudicator may do all or any of the following- (a) require a party to the application, an affected person, the body corporate or someone else the Adjudicator considers may be able to help resolve issues raised by the application- (i) to obtain, and give to the Adjudicator, a report or other information; or (ii) to be present to be interviewed, after reasonable notice is given of the time and place of interview; or (iii) to give information in the form of a statutory declaration. [47] The applicant relies on Grut-Mackay v Cherwood Lodge CTS 2071113 where McGill DCJ said: [21] There is also an issue here about whether the Adjudicator really has provided natural justice to the applicant. In circumstances where there is some lack of clarity, and perhaps some questions left unanswered, by the expert report, rather than simply rejecting the application on the basis that the evidence in support of it was inadequate, the Adjudicator should have drawn these deficiencies to the attention of the applicant, so as to give the applicant the opportunity of putting further material before the Adjudicator. It must be borne in mind that the procedure of adjudication established under the Act does not appear to be an adversarial one; rather it is an inquisitorial one. The obligation of the Adjudicator is to investigate: s 269(1). That involves a proactive approach to the dispute and the factual basis for it, rather than merely a reactive response … 13 [2004] QDC 229 at [21]-[22]. -- 12 of 14 -- 13 [22] On the other hand, there are certainly deficiencies in the material, and in my opinion the problem in this case is rather that the Adjudicator terminated the investigation prematurely. Perhaps the Adjudicator should have interviewed Mr Langley, or at least sought further information from him, perhaps in conjunction with an inspection of the site. Perhaps the Adjudicator could have obtained a report from an independent expert ... [48] The applicant relies on this statement because once the submission was made that the emails were forwarded that then raised a question that remained unanswered on the evidence before the Adjudicator. She must have realised that the submission about the forwarding of the emails would not have been made in the absence of some evidence and therefore it was incumbent upon her to investigate that submission further. That is because her function is inquisitorial. [49] This argument would have some substance if there was some tangible evidence, rather than merely an assertion, put before the Adjudicator that the emails were forwarded. [50] The grounds of appeal and the submissions in support proceed on the premise that there was some legitimate basis for the Adjudicator to embark on the inquires suggested and make orders directed to Mr Atkinson. The difficulty with the submission is that once it was found by the Adjudicator that she was not satisfied on the evidence before her that “any communications occurred” other that “unsubstantiated claims” that the emails were forwarded, there was nothing left for her to investigate further. [51] It is not the case that she expressed some doubt as to the existence of the emails or that the evidence and submissions created a suspicion that the respondents were not being forthright. She made an unequivocal finding of fact that the applicant had not demonstrated that the emails had been forwarded. On the basis of this finding of fact, which was clearly open on the evidence before her, it is difficult to see how her failure to go further and investigate constitutes an error of law. [52] The applicants assert that there was, or the Adjudicator should have realised, that ‘there did, at the very least, exist some logically probative evidence of the existence of the requested records’. She did not consider that the evidence in support of the forwarded emails was inadequate; she simply said that it was unsubstantiated. In my opinion, it was reasonable for her to come to this conclusion and it was reasonable for her not to take any further action with respect to the emails and not doing so in the circumstances of this case could not amount to an error of law. Ground 4 [53] Ground 4 alleges that the Adjudicator erred in law in failing to make a declaration that the respondent failed to comply with its statutory obligations under s 205 of the BCCM Act to provide a copy of the records to the appellant on 20 December 2012 within seven days of receiving that request. -- 13 of 14 -- 14 [54] There is no contentious issue of fact that the BCM did fail to provide the records within seven days of the request. However, s 205(2) of the BCCM Act is quite specific in its terms in that the records must be provided ‘within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation’. It is accepted that no fee was accompanied with the request, therefore the section provides that there was no obligation on the BCM to comply with the request within the seven day time frame. This seems to me to be correct. The section is clear in its terms and the undertaking proffered by the applicant does not satisfy the section. In addition, the section provides for a penalty for non-compliance therefore its application must be applied strictly. Clearly, the non-payment of the prescribed fee would raise a valid defence to any enforcement of a penalty. [55] The failure to make the declaration is based on a factual issue, that is the failure to provide the prescribed fee and therefore it is not an error of law. [56] For the reasons stated I am not satisfied that the Adjudicator erred in law in considering the adjudication and therefore, the appeal is dismissed. -- 14 of 14 --