Ayres v Queensland Building and Construction Commission - [2022] QCAT 328

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ayres v Queensland Building and Construction Commission [2022] QCAT 328

PARTIES:

JESSIKA ROSE AYRES
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR416-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 September 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1. The application for an extension of time filed on 27 October 2020 is refused.

2. The application to review a decision filed on 27 October 2020 is therefore dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether application for an extension of time should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 61

Cardillo v Queensland Building Services Authority [2011] QCAT 574
Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 22 April 2020, the Queensland Building and Construction Commission (‘QBCC’) made a decision not to issue a direction to rectify in response to a complaint made by Ms Ayres.
The QBCC decision contained the following statement:
You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision.
I note that s 33 of the QCAT Act provides that an application for the review of a reviewable decision must be made within 28 days of, relevantly, the day the applicant is notified of the decision.
Ms Ayres indicated that she received the decision on 23 April 2020. The application for review was therefore required to be made by 21 May 2020.
On 27 October 2020, Ms Ayres filed an application to review the decision with the Tribunal. The application was filed out of time, so Ms Ayres also filed an application for an extension of time on the same date.
Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) gives the Tribunal power to extend a time limit fixed for the start of a proceeding. The Tribunal cannot extend time if to do so would cause prejudice or detriment to a party or potential party to a proceeding, not able to be remedied by an appropriate order for costs or damages.
The relevant factors to be considered by the Tribunal in exercising its discretion to grant an extension of time were summarised in Crime and Misconduct Commission v Chapman & Anor:[1]
(a)Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
(b)The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCAT 328
Decision Date

CaseChat Overview and Summary

In the case of Ayres v Queensland Building and Construction Commission, the applicant, Ms Ayres, sought an extension of time to apply for judicial review of a decision by the Queensland Building and Construction Commission (QBCC) to exclude her from registration as a building practitioner. The dispute arose after the QBCC made a decision to exclude Ms Ayres from registration, and she subsequently sought to challenge this decision via judicial review. The application for review, however, was filed after the statutory time limit, leading to the necessity of an extension to bring the review application within the permissible timeframe.

The primary legal issue the court had to address was whether to grant Ms Ayres an extension of time to apply for judicial review of the QBCC's exclusion decision. This required the court to balance the interests of justice, the absence of prejudice to the QBCC, and the possibility of merit in Ms Ayres' case against the need for finality in litigation and the requirement for an acceptable explanation for the delay in filing the application. The court also had to consider the statutory mandate under the QCAT Act for the Tribunal to deal with matters fairly, economically, and quickly.

The court concluded that while the absence of prejudice to the QBCC and the potential merit in Ms Ayres' case favoured extending the time for the application, these factors were outweighed by the lack of a satisfactory explanation for the substantial delay after 6 August 2020 and the overarching interests of justice. The court noted that it is a precondition for the exercise of discretion in the applicant's favour that the applicant for extension demonstrate an acceptable explanation for the delay. Since Ms Ayres did not provide such an explanation, the application for an extension of time was refused. Consequently, the application to review the QBCC's decision was dismissed.

The final orders of the court were that the application for an extension of time to apply for judicial review was refused, and therefore, the application to review the decision of the QBCC was also dismissed. This outcome reflects the court's determination to uphold the principles of fairness, finality, and adherence to statutory timelines in the administration of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The interests of justice do not favour an extension. As Thomas J noted in Coppens,[3] finality in litigation is highly desirable. The Tribunal’s obligation under s 3(b) of the QCAT Act to deal with matters, fairly, economically and quickly would not be achieved by allowing Ms Ayres to file this application after a substantial delay.[3][2014] QCATA 309, 4 [14].Conclusion The absence of prejudice to the QBCC and the possibility of some merit to Ms Ayres’ case point in favour of extending the time for Ms Ayres to apply for review of the exclusion decision. However, I am of the view that these factors are outweighed by the absence of a satisfactory explanation for the substantial delay after 6 August 2020 and the interests of justice. As Member Howe observed in Cardillo v Queensland Building Services Authority, “it has … been said that it is a precondition to the exercise of discretion in the applicant's favour that the applicant for extension show an acceptable explanation of the delay”.[4] Ms Ayres has not done this.[4][2011] QCAT 574, 7 [33]. The application for an extension of time is refused. The application to review a decision is therefore dismissed.

Ratio Decidendi

Legal Principle Established

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