Bigby v Queensland Building and Construction Commission - [2014] QCAT 169

CITATION:

Bigby v Queensland Building and Construction Commission [2014] QCAT 169

PARTIES:	Graham Bigby (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR076-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

1 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to extend a time limit is dismissed.

CATCHWORDS:

PROCEDURE – Extension of time to lodge a review – where applicant sought extension of time to file a review application – whether extension should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61
Cardillo v Queensland Building Services Authority [2011] QCAT 574 followed

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 (Qld) (QCAT Act).

REASONS FOR DECISION

On 26 February 2014 Mr Graham Bigby filed an application to review a decision of the Queensland Building Services Authority (as it then was) to refuse an insurance claim made by Mr and Mrs Bigby under the statutory insurance scheme.
In the rejection letter to Mr and Mrs Bigby, the Commission says that the work was performed by the builder Daniel Kondra at their property at the Gap. This work was performed in 2003 and completed, on the Commission’s reckoning, on 6 August 2004.
In 2008 a damaging storm swept through the Gap and the Bigbys’ house suffered critical damage. A complaint form was lodged with the then Authority on 7 August 2013.
The Commission says that it could not have issued a direction to rectify to Mr Kondra as more than six years and three months has passed. The Commission says that Mr and Mrs Bigby are unable to claim under the insurance policy for the work as the time for rectification expired.
The solicitors for Mr Bigby have filed an application to extend time to within which to file a review of the denial.
The original letter to Mr Bigby was dated 28 August 2013 and it is common ground that the letter was sent to the wrong address for Mr Bigby.
However Mr Bigby’s original application also had an email address on it which was the solicitors for the Bigbys.
It is conceded by the solicitors for Mr Bigby that the denial letter was also sent to the email account of Mr Heath, the solicitor having conduct of this matter on 18 September 2013.
Mr Heath says he was travelling interstate at the time and due to a clerical error within his office, the denial letter was not downloaded and placed on file for Mr Heath’s attention.
Mr Heath says he was not aware that the Commission had made a decision in respect of Mr Bigby’s claim and in fact wrote to the Commission on 15 January 2014 asking for information. After the Commission’s response to the 15 January letter, Mr Heath reviewed his email inbox and became aware that he received the…

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: [2014] QCAT 169
Decision Date: 1 May 2014

CaseChat Overview and Summary

The case of Bigby v Queensland Building and Construction Commission involves the applicant, Bigby, seeking an extension of time to file a review application. The Queensland Building and Construction Commission (QBCC) is the respondent. The primary dispute centres on whether the court should grant an extension to Bigby beyond the statutory time limit for lodging the review application. This case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues that the QCAT was required to decide included whether the applicant had demonstrated sufficient grounds for seeking an extension of time, whether the delay in filing the application was excusable, and whether granting an extension would cause any prejudice to the respondent. The court was tasked with balancing the principles of procedural fairness, the statutory time limits for filing a review, and the potential consequences of permitting a late application.

The QCAT carefully considered the applicant's reasons for the delay and the circumstances that contributed to it. The tribunal noted that while the applicant had provided some justification for the delay, it did not find these reasons to be compelling enough to warrant an extension. The QCAT also considered the potential prejudice to the respondent if the extension were to be granted. Ultimately, the tribunal concluded that the application for an extension of time should be dismissed, adhering to the statutory timelines and the principle of procedural fairness. The decision emphasised the importance of adhering to procedural rules and the potential consequences of allowing extensions where there is no strong justification.

Orders

Orders of the court

1. The application to extend a time limit is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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