Ellis & Anor v Queensland Building Services Authority (No 2) [2011] QCATA 91

CITATION: Ellis & Anor v Queensland Building Services Authority (No 2) [2011] QCATA 91 PARTIES: Mr Jolyon Ellis and Mrs Doris Grosskurth (Applicants/Appellants) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: APL143-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 4 May 2011 DELIVERED AT: Brisbane ORDERS MADE: That all applications for miscellaneous matters filed by the applicants in APL143-10 be dismissed. CATCHWORDS: APPEAL – BUILDING MATTER – APPLICATION FOR MISCELLANEOUS MATTERS – FAILURE OF WITNESS TO ATTEND HEARING AND PRODUCE DOCUMENTS – where a witness was ordered to attend a hearing and produce documents pursuant to s 63 of the Queensland Civil and Administrative Tribunal Act 2009 – where the witness failed to attend the hearing and produce documents – where both the matter and the appeal have been heard and determined – where the applicants seek an order that the witness ‘fully explain his contempt of court’ – whether the witness was in contempt Queensland Civil and Administrative Tribunal Act 2009, ss 63, 97, 214, 215, 218, 219 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This matter has already been to the Appeal Tribunal. It concerns plumbing work at the home of Mr Ellis and Mrs Grosskurth and a decision by the QBSA, in 2007, not to issue a direction to rectify 18 complaints they had about that work. [2] They began proceedings against the QBSA in 2008 which eventually came up for hearing before a QCAT Member in May 2010. The learned Member confirmed the Authority’s decision in relation to eight of the complaints, but referred four back to it for reconsideration. [3] The original decision was addressed at length, in the Appeal Tribunal’s subsequent decision of 6 December 2010, in which Mr Ellis’ and Mrs Grosskurth’s application for leave to appeal was refused. [4] In the course of their application for leave to appeal they filed a number of interim applications for different kinds of relief – generally, in QCAT’s Form 40, called an ‘Application for miscellaneous matters’. [5] In one of those applications, filed on 24 June 2010, they claimed to seek an order under s 63 of the QCAT Act that a potential witness, Mr Michael Verrenkamp, produce documents listed in a notice they had given him dated 21 April 2010 or provide reasons for his failure to attend at the hearing before the QCAT Members. [6] Despite the failure of their application for leave to appeal Mr Ellis and Mrs Grosskurth have continued to press the Tribunal for a decision about that application. [7] Mr Verrenkamp did not appear or produce documents, or give evidence at the original hearing. The circumstances in which that occurred were explored in the Appeal Tribunal’s decision of 6 December 2010 at paragraphs [16]-[18]. [8] As observed there, when all the other evidence in the matter had finished on the second day of the hearing, 19 May 2010, the appellants did not raise the question of Mr Verrenkamp’s attendance, or his absence, or his evidence. They did not ask that any warrant issue under s 215 of the QCAT Act, or for an adjournment of the proceedings. The Appeal Tribunal was satisfied the matter was not, in those circumstances, one which justified a grant of leave to appeal. [9] Importantly, the lengthy and complex submissions filed by Mr Ellis and Mrs Grosskurth in the appeal (and in the original proceedings) failed to show how Mr Verrenkamp’s non-appearance had any adverse effect upon their case. It does not appear that his evidence was critical, or even necessary; and, it could have been introduced by Mr Ellis and Mrs Grosskurth in at least one other way. -- 2 of 3 -- 3 [10] Their application faces further difficulties. First, it is now superfluous because the matters it raises have been dealt with in the application for leave to appeal. [11] Second, insofar as Mr Ellis and Mrs Grosskurth appear to be moved by a desire to have some punishment inflicted upon Mr Verrenkamp for his non- appearance, I am not persuaded this is an appropriate occasion, or arena, for that to occur. Section 97 of the QCAT Act gives the Tribunal power to issue notices requiring persons to attend, or produce documents at hearings. Under s 214 a person who receives a notice of that kind but fails to attend or fails to produce documents may face a maximum penalty of 100 units ($10,000). Under s 215, the Tribunal also has a discretion to issue a warrant or to adjourn the matter if the witness does not attend. [12] As already observed, Mr Ellis and Mrs Grosskurth did not raise those matters with the presiding Member at the hearing. They say this was because of their inexperience and unfamiliarity with QCAT’s procedures but, at the conclusion of all the other evidence, the matter was simply not mentioned at all. Further, of course, there is no evidence that Mr Verrenkamp’s presence would have made any difference at all. [13] In a letter addressed to the President of QCAT of 10 January 2011 Mr Ellis and Mrs Grosskurth say they want Mr Verrenkamp to ‘… fully explain his contempt of court’. The Tribunal has powers to punish for contempt, which are set out in s 218 of the QCAT Act. The circumstances in which a finding of contempt may be made do not, however, include non- compliance with notices under s 97 and there is nothing to suggest Mr Verrenkamp contravened any of the provisions of s 218. [14] Under s 219 the Tribunal has all the protection, powers, jurisdiction and authority of the Supreme Court in relation to contempt, subject to compliance with the Uniform Civil Procedure Rules 1999. Again, there is nothing in the material to suggest the Tribunal has any basis to find Mr Verrenkamp in contempt, either under the common law or pursuant to s 218. [15] It may be that Mr Verrenkamp wrongly contravened the notice served upon him by the applicants. In circumstances where, however, they did not seek any remedy at the appropriate time; and, there is no evidence that the absence of the witness had any effect on the outcome of the proceedings or, in particular, that the applicants were somehow denied the opportunity to present material evidence, there is no basis upon which the Tribunal should properly move to impose any penalty upon that witness. [16] Insofar as the decision of the Appeal Tribunal of 6 December 2010 did not address the application for miscellaneous matters filed 24 June 2010, that application is dismissed. Because the applicants filed a number of applications for miscellaneous matters, some of which appear to seek relief which overlaps, it is appropriate to order, too, that all of those applications also be dismissed. -- 3 of 3 --