Johns Lyng (Qld) Gold Coast Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 287

• [3] The applications remain separate proceedings but are travelling and will be heard and determined together as they traverse the Tribunal.
• [4] Following applications by Johns Lyng, Ms Scott and Mr Duggan were joined as respondents to all three proceedings in November 2023.
• [5] Johns Lyng had argued for the joinder of Ms Scott and Mr Duggan (owners) on the following bases:

(a) There is a risk of adverse findings against the owners personally and they should be afforded the opportunity to be heard in respect of the alleged conduct giving rise to the possibility of adverse findings, and

(b) The principles of natural justice require the owners to be joined so that they be heard and afforded the opportunity to submit for or against the orders sought by the applicant, and

(c) By an email dated 16 May 2023 the owners had said that they consider themselves an 'affected party' and wished to be provided with a copy of all documents after they were filed.

• [6] In reply to the application for joinder, Ms Scott and Mr Duggan expressed that they had no desire to participate in the proceedings but felt it necessary to respond to the "many and significant" assertions made by Johns Lyng against them and as to their conduct and as such stated:

As very reluctant participants in these proceedings, we will consent to the joinder.[1]

• [7] The Commission were of the view that there was little to no risk of adversity to the interests of Ms Scott and Mr Duggan that might arise from the proceedings because rectification works pursuant to the reviewable decisions had already taken place, noted that they could give evidence as witnesses without being parties to the proceeding but neither consented nor objected to the joinder.
• [8] The applications proceeded through a compulsory conference, the filing of evidence and arguments on jurisdictional issues and a directions hearing. Interlocutory applications are outstanding and not all evidence has been filed to date.
• [9] On 26 March 2025, Mr Duggan and Ms Scott filed an application to be removed from the three proceedings pursuant to s 42(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) with accompanying submissions in support.
• [10] The Commission filed response submissions on 7 May 2025 and Johns Lyng filed theirs (opposing the removal) on 8 May 2025.
• [11] With the benefit of these submissions, the Tribunal removed Mr Duggan and Ms Scott from the proceeding by a decision made 9 June 2025 and made other orders and directions to progress the applications.
• [12] Johns Lyng has sought reasons for the decision made 9 June 2025 and those reasons now follow.

Application for miscellaneous matters filed 8 May 2025

• [13] By an application for miscellaneous matters filed 8 May 2025 Johns Lyng sought:

(a) An order staying the proceedings pending the outcome of Supreme Court proceedings brought by Johns Lyng that challenge the validity of all three reviewable decisions on the basis that the Commission lacked authority to make the decisions and that if those proceedings succeed, the Tribunal's review jurisdiction over the three decisions would cease.[2]

(b) That the application to stay be listed for an oral hearing on the basis that the issues raised are complex and warrant the benefit of oral submissions by counsel.

(c) An order delaying the consideration of the removal application pending the outcome of the application to stay.

(d) Orders extending time to comply with Tribunal directions made 21 February 2025 to file and serve any applications to produce documents pending the outcome of the Supreme Court proceedings (if the stay is not granted).

(e) Orders to extend time to comply with Tribunal directions made 16 April 2025 to file and serve submissions in response to the application for removal, to 8 May 2025 (they were due 7 May 2025).

• [14] By directions made 9 June 2025, submissions on the stay application were called for but a direction given, that, unless the Tribunal ordered otherwise upon receipt of further submissions, the application to stay would be heard on the papers without an oral hearing. The application to stay is yet to be determined.

• [15] By directions made 9 June 2025, an extension of time was given to Johns Lyng to file and serve submissions in response to the application for removal, to 8 May 2025.
• [16] Section 61(1) of the QCAT Act empowers the tribunal to extend time limits and waive compliance with procedural requirements as a matter of discretion.[3]
• [17] Relevant considerations when exercising the power include:[4]

(a) Whether a satisfactory explanation is shown to account for the delay.

(b) The strength of the case the applicant wishes to bring.

(c) Prejudice to adverse parties.

(d) Length of the delay.

(e) Overall, whether, it is in the interests of justice to grant the extension, which usually calls for an analysis of the above considered in combination.

• [18] Given the delay in filing submissions was one day only, that this neither disadvantaged the tribunal nor any other party, nor did it delay the proceeding, the one-day extension of time was granted.

Request for oral hearing of removal application

• [19] Section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
• [20] Proceedings may be finally determined, or interlocutory applications decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing,[5] known as decisions made "on the papers".
• [21] Johns Lyng submitted that:

The Tribunal should hear the application for removal in an oral hearing, as the nuances of the arguments are better conveyed in the Socratic exchange of an oral hearing.

• [22] Socrates was famous for not writing himself and for believing that true knowledge came from dialogue not texts.[6] Student scribes recorded the words of Socrates typically by a reed pen dipped in ink, usually made from soot mixed with water and gum, on papyrus imported from Egypt (who had a monopoly on production) that was relatively expensive.[7] In modern times of course, ink and paper are readily and inexpensively available, and in fact most submissions for 'on the papers' submissions are filed by email as PDF attachments, including the applicant's on 8 May 2025.
• [23] While the tribunal can appreciate the benefit of an oral hearing on interlocutory applications, in which Socratic exchange may occur, it remains cognisant of its statutory mandate[8] to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and its obligations to:

(a) encourage the early and economical resolution of disputes before the tribunal;[9] and

(b) ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[10]

• [24] The tribunal must also remain mindful that its resources serve the public as a whole, not just the parties to the proceedings, Justice Wilson noting in Creek v Raine & Horne Real Estate Mossman[11] that:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT's resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, "... the public as a whole, not merely the parties to the proceedings".[12] Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[13]

• [25] Through no fault of their own, parties are subject to significant delays in finalising review applications before the tribunal. For example, according to the QCAT website the average time to finalise three-quarters of all applications for review is set out in the table below,[14] where the remaining one-quarter of matters will take longer and some of them will take considerably longer depending on the circumstances, including the complexity and size of the matter.

Review of government agency decisions - Weapons licensing

• [26] These proceedings will well-exceed these average times given they have been on foot for over two years, evidence has not closed, and a stay of the proceedings is sought.
• [27] In a high-volume jurisdiction with a significant backlog, listing the interlocutory application for removal for an oral hearing would incur expense and inconvenience to legally represented parties and would delay all other matters awaiting listing for an oral hearing for no appreciable benefit where:

(a) All parties had filed thorough submissions; and

(b) No evidence was requested to be tendered nor examined for the decision to be made.

• [28] Thus, the tribunal elected to decide the matter on-the-papers.

• [29] The tribunal's power to remove a party from a proceeding is derived from s 42(2) of the QCAT Act, which states:

(2) The tribunal may order that a party be removed from a proceeding if the tribunal considers that -

(a) the party's interests are not, or are no longer, affected by the proceeding; or

(b) the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.

• [30] Johns Lyng made extensive submissions as to the proper interpretation of this provision.
• [31] Firstly, in their response submissions, Johns Lyng stated: (emphasis added)

45. In an application for joinder, all s.42(1)(b) requires is the possibility that a "person's interests may be affected".

46. In contrast, for a removal application, s.42(2)(a) identifies the hurdle for relief such that there must be a finding that the interests of the party to be removed "are not, or are no longer, affected".

47. The necessary construction which follows that once a party has been joined, they may not be removed other than pursuant to a factual finding by the Tribunal that there is no possibility of the party's interests being affected by the outcome of the review.

• [32] Respectfully, the assertion at paragraph 47 is incorrect. The tribunal must simply be satisfied that the party's interests are not, or are no longer, affected by the proceeding or the party is not a proper or necessary party to the proceeding, even if they were previously considered so. The inclusion of word "or" permits either s 46(2)(a) or s 46(2)(b) to apply for the provision to be satisfied.
• [33] The assertion made at paragraph 89(a) of Johns Lyng's submissions continues this misconstruction of s 46(2):

...for the second and third respondents to be removed from the proceeding, the question which must and cannot be answered in their favour is: as a matter of fact, is there no possibility that the respondents to be removed could be affected by the outcome of the review.

• [34] Again, at paragraph 91 of the submissions, wherein Johns Lyng states (emphasis added):

which requires them to establish that as matters of fact and law:

(a) the respondents cannot now be affected by the proceedings: s.42(2)(a); and

(b) the respondents are no longer a proper or necessary party: s.42(2)(a).

• [35] As explained above, the provision uses the conjunction "or" as opposed to "and", thus requiring merely one of the above to be met, but not both.
• [36] Further, Johns Lyng made thorough submissions with respect to the use of "may" in the section, asserting that its presence was permissive as opposed to discretionary. Putting aside the merits of such a claim, if "may" in s 42(2) were viewed as permissive, and as Johns Lyng asserts, "no residual discretion remains",[15] the overlying outcome would be that the tribunal must remove the second and third respondents from the proceeding if ss 42(2)(a) or 42(2)(b) apply.
• [37] Johns Lyng also made submissions about the enforceability of prospective orders from the tribunal if Mr Duggan and Ms Scott were removed, namely:

if the non-party's interests are actually encroached upon by the order ultimately made by the Tribunal, the order would be unenforceable as against the non- party.

• [38] Section 19(c) of the QCAT Act provides that:

In exercising its review jurisdiction, the tribunal -

...

(c) has all the functions of the decision-maker for the reviewable decision being reviewed.

• [39] In exercising its powers under s 24(1) of the QCAT Act the tribunal will confirm the decision under review, or set it aside, or set it aside and substitute it for another decision or return it to the Commission to reconsider.
• [40] It follows that every decision of the tribunal in review proceedings may impact the rights and/or liabilities of an affected party, as would a decision of the Commission directly, hence why an affected party is made aware of and provided the opportunity to join the proceedings and contest the making of any adverse order. It is the provision of the opportunity that is most relevant on joinder, ensuring the rules of natural justice are observed, as correctly highlighted by Johns Lyng's reference to Victoria v Sutton (1998) 195 CLR 291.[16]
• [41] The decision to remove applied s 42(2)(b) of the QCAT Act, the Tribunal being satisfied that Mr Duggan and Ms Scott were no longer necessary parties to the proceeding because:

(a) The tribunal is well satisfied the owners, Ms Scott being a solicitor herself, understand the risk of adverse findings arising from a decision of the tribunal in the proceeding (which are minimal in any event), were afforded natural justice by the original joinder, and through their subsequent participation in a directions hearing and a compulsory conference have had an ample opportunity to be heard in the proceedings. They well understand the orders sought by the applicant in the proceedings.

(b) Contrary to their earlier position, the owners no longer wish to avail themselves of the opportunity to be heard and to oppose any orders sought by the applicant. They note that they are not independent of or emotionally divorced from the dispute and remaining in the review proceeding is taking an emotional, intrusive, and stressful toll. On balance, they are free to exercise their right not to participate in those circumstances.

(c) The nature of the dispute is a merits review by the applicant of the Commission's decision, and as such, the owners are not a necessary party to the review proceeding. They also point to the risk to them of a costs order if they remain a party, in circumstances where they have no control over whether the proceeding may resolve early.

(d) The owners can contribute to the proceeding in the capacity of witnesses, and as such, the tribunal will still have the benefit of their evidence and the applicant will have the opportunity to test it in cross-examination.

[1] Submissions on joinder dated 10 October 2023.

[2] MMA v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [44], [45], [48] and [51] to [53].

[3] Hansen v QBSA [2012] QCAT 616.

[4] Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229.

[6] For example, Plato's Phaedrus (360 BCE) in which Socrates discusses why writing would erode thought by permitting people to forget what they had learned and "Worse, writing wouldn't "allow ideas to flow freely and change in real time, the way they do in the mind during oral exchange." (Translated by Benjamin Jowett).

[7] Eric G Turner (1971), Greek Manuscripts of the Ancient World, 1971, Princeton University Press; Napthali Lewis (1974), Papyrus in Classical Antiquity, Volume 1, Volume 23 of Papyrologica Bruxellensia, Clarendon Press.

[11] [2011] QCATA 226 at paragraph [13].

[12] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 217.

[13] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.

[14] Timeframes | Queensland Civil and Administrative Tribunal (www.qcat.qld.gov.au/application/timeframes) as at 27 May 2025.

[15] Applicant's submissions filed 8 May 2025, paragraph 76.