Duke Building Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 28

CITATION: Duke Building Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 028 PARTIES: Duke Building Pty Ltd (Applicant) v Queensland Building and Construction Commission (First Respondent) Sharma Wright and Randall Wright (Second Respondent) APPLICATION NUMBER: GAR260-12 MATTER TYPE: General administrative review matters HEARING DATE: 24 January 2014 HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 24 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to reopen the proceeding is refused. 2. The application for an extension of time to pay the costs order made on 10 September 2013 is refused. CATCHWORDS: REOPENING – whether a reasonable excuse for not attending the hearing 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] In this matter, Duke Building Pty Ltd (“Duke”) apply for a reopening of a decision made by the Tribunal on 2 September 2013. There is an allied application for an extension of time to pay a subsequent costs order. [2] The decision made on 2 September 2013 was: a) The decision of the Queensland Building Services Authority dated 23 January 2013 is confirmed. -- 1 of 5 -- 2 b) Sharma Wright and Randall Wright have liberty to apply for costs. Such application shall be filed within seven (7) days. [3] The decision referred to in paragraph a) above was one made by the QBSA as it then was,1 that a building contract between Duke and Sharma Wright had been validly terminated because of Duke‟s default. This decision was recited in letter dated 23 January 2013 and sent to Duke. [4] Duke applied to the Tribunal for a review of this decision in case number GAR260-12. During these proceedings Sharma Wright as the owner of the property concerned, and her husband Randall Wright as a person who may have contracted with Duke, were joined as Second Respondents. This was because their interests could be affected by the outcome of the application for review. [5] In accordance with paragraph b) above, an application for costs was made by Mr and Mrs Wright and an order was made on 10 September 2013 that Duke pay to them their costs in the proceedings set in the sum of $13,300. A reopening of the proceedings would necessarily also set aside this costs order. [6] The review application was heard on 2 September 2013 but Duke did not appear. The hearing went ahead in Duke‟s absence. [7] By Division 7 of the QCAT Act a party may apply to the tribunal for a reopening if they have a reopening ground. One of the reopening grounds (relied on here) is that the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing. If this is shown, then provided the reopening ground could effectively or conveniently be dealt with by reopening the proceedings, then the Tribunal may grant the application for reopening.2 Other important facts [8] There is a second case brought by Duke under number GAR154-13 in which Duke is seeking to review another decision by the QBSA as it then was. This was a decision to issue a Direction to Rectify and/or Complete defective work at the property concerned. Some of the same questions arise in that case as arose in this one. But also different questions arise. Of importance for this reopening application, Mr and Mrs Wright are not parties to GAR154-13. And GAR260-12 was well underway when GAR154-13 was started. [9] An application was made to consolidate the two proceedings, but at the directions hearing on 13 June 2013 it was decided that the matters should not be consolidated, but that they should be heard at the same time. Hence two orders were made and sent out to the parties, one in GAR154-13 and one in GAR260-12. The order stated „Proceeding GAR260-12 and GAR154-13 are to remain as separate proceedings but be heard and determined together‟. 1 Now the Queensland Building and Construction Commission. 2 the relevant provisions are sections 137(a) and 139(4) of the Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 5 -- 3 [10] In GAR260-12 further directions were made on the same day. It was set down for hearing in Brisbane over three days - 2, 3 and 4 September 2013. The directions made on that day also provided for statements of evidence to be filed and other things done in readiness for the hearing. In case GAR154- 13 no further directions were given on that day, but a separate order was made on 17 June 2013 providing for evidence to be filed by the QBSA and by Duke. That case was also listed for hearing over the three days starting 2 September 2013. [11] The directions in case GAR154-13 were varied on 15 August 2013 by an order vacating the hearing on 2 September 2013 and listing the matter for a compulsory conference in Southport at 9.30am on 4 September 2013. [12] On the same day by an order in case GAR260-12, Duke was given until 23 August 2013 to file and serve statements of evidence in reply to the statements given by the Second Respondents. [13] On 28 August 2013 the Commission emailed Duke chasing up the statements of evidence in reply which had still not been filed and served by Duke. It also informed Duke which witnesses it wanted to attend for cross examination. The emailed letter referred expressly to the hearing commencing on 2 September 2013. [14] On 28 August 2013 at 3.37pm Duke emailed the Tribunal for clarification whether or not the hearing for both matters had been vacated, and followed this up with a telephone call at 4.04pm. Duke was informed by the case manager that the hearing of GAR260-12 was still proceeding and it was over two days starting 2 September 2013. In that discussion Duke expressed the wish to apply for an adjournment of the hearing in GAR260-12 and was advised how to do so. [15] On 29 August 2013 Duke made an application for an adjournment. This was considered on the same day by a member of the Tribunal and refused. The order refusing the adjournment stated that the two day hearing in Brisbane commencing at 9.30am on 2 September 2013 was confirmed. [16] At 9.05am on 30 August 2013 which was the Friday, the case manager telephoned Duke and asked for confirmation of its attendance on the Monday 2 September 2013 in GAR260-12. The case manager made a note of the conversation which reads as follows (referring to Mrs Hughes, director of Duke):- I called Vivienne Hughes to confirm that she will be attending the hearing on Monday and Tuesday next week on the Tribunal request. Vivienne said that “we will not be attending as there will be no point”. I asked Vivienne if she was referring to Mr Hughes as well. Vivienne said yes and she will let the court decide the matter. I asked Vivienne if she would be filing any other material. Vivienne said she might file the statements of evidence in reply but said that you people might not accept it. I told Vivienne that would be up to the Tribunal to decide. I asked Vivienne as final confirmation if she and Mr Hughes will be attending the hearing on Monday and Tuesday. Vivienne said she has to think about it and let me know by the end of the day as it is only 9am in the morning and she has to arrange flights etc. I asked Vivienne if she could please let me know as soon as possible. [17] Later that day, Duke did file its evidence in reply. -- 3 of 5 -- 4 [18] At the hearing on 2 September 2013 Duke did not appear. The Commission was represented by Jodie Stroud a solicitor and Jenny Burslem. Mr and Mrs Wright appeared on their own behalf. It is clear from the transcript of the hearing on that day that the member who heard the matter first of all satisfied herself that Duke was aware of the hearing date, and then went on to hear and decide the matter in Duke‟s absence having regard to the evidence filed by Duke including its statement of evidence filed on 30 August 2013. This was under section 93 of the QCAT Act 2009. This means that the matter was decided on the merits having regard to all material filed by Duke. It was not simply struck out because of Duke‟s non-appearance. A full judgment was given and the member found against the application. Considerations [19] In its application for reopening, Duke appears to be saying that it thought the hearing of 2 September 2013 had been vacated in its entirety. This is because the directions of 13 June 2013 were that the two matters should be heard together and this was never rescinded. So when the hearing for GAR154-13 was vacated, accordingly the hearing for GAR260-12 must have been vacated as well. [20] I agree that looking only at the orders issued by the Tribunal there could be some room for confusion about this. But Duke did attend the directions hearing of 15 August 2013 by its director Mrs Hughes. The transcript of that hearing has been submitted by the Commission in its submissions in this reopening application. [21] This transcript shows that the senior member who gave directions was very clear and there was no room for confusion at all. Firstly he gave his view that the two cases could be dealt with at separate hearings and he explained why: the contract termination point was a discrete issue separate from any issue about defective work.3 Secondly the senior member was keen to ensure that the three days set aside for the hearing should not be wasted, so that GAR260-12 should go ahead for hearing on 2 September although it was not going to last three days and could be completed in two.4 Thirdly, that GAR154-13 was now going to be dealt with separately because of timetable slippage and that although it would not be heard on 2 September it would be possible to have a compulsory conference in the matter on 4 September because that day would be freed by the shortened hearing of GAR260-12.5 [22] Bearing in mind this clear explanation of what was going to happen and Mrs Hughes‟ understanding about it as demonstrated in the transcript I do not accept that Duke thought the hearing of 2 September 2013 had been vacated in its entirety. I believe this is an afterthought based on the orders which actually went out. [23] Duke also make the point in its submissions that by not attending on 2 September 2013 it was in fact complying with the Tribunal‟s order that the two matters be heard together. Duke says that if it had attended on 2 September 3 Pages 2 and 3 of the transcript. 4 Pages 4 to 8 of the transcript. 5 Pages 7 to 8. -- 4 of 5 -- 5 2013 in GAR260-12 it would have been in breach of the Tribunal‟s order that the two matters be heard together. Whilst this is a clever submission, it is clearly also only made in hindsight. Duke could not have believed this and on my findings did not believe this at the time. [24] Indeed on 28 August 2013 it was made clear to Duke by the case manager that the hearing on 2 September would be going ahead. The note on the file from the case manager demonstrates that Duke had simply decided by that time not to attend the hearing. It is significant that Duke filed evidence in GAR260-12 on 30 August 2013 which was the Friday. The intention must have been for the hearing to go ahead, and that this evidence would be taken into account, as indeed did happen. [25] I do not understand the application for reopening to say that there were difficulties in obtaining witness evidence for 2 September 2013. If this is relied on I agree with the submissions made by the Commission that this is not a reason for not attending the hearing. [26] The Applicant seeks an extension of time to pay the Second Respondents‟ costs ordered on 10 October 2013 pending a decision on the reopening application. The order provided that this should be paid in 28 days. Since the reopening application has not succeeded, I see no reason to vary that order or extend the time for payment. -- 5 of 5 --