Brown v Queensland Building and Construction Commission - [2014] QCAT 487

CITATION:

Brown v Queensland Building and Construction Commission [2014] QCAT 487

PARTIES:	Deborah Brown (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR356-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

30 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Deborah Brown’s application to extend time in relation to the reviewable decision of the Queensland Building and Construction Commission dated 24 June 2011 is dismissed.

2. Deborah Brown’s application to extend time in relation to the reviewable decision of the Queensland Building and Construction Commission dated 9 January 2014 is allowed.

3. The time for filing in the Tribunal of an application to review a decision in relation to the reviewable decision of the Queensland Building and Construction Commission dated 9 January 2014 is extended to 4:00pm 24 October 2014.

4. Following Deborah Brown’s compliance or non compliance with Order 3 above the Tribunal will make further directions in relation to sequencing the hearings of this review proceeding in relation to the 2 September 2013 decision and the review proceeding to be commenced in relation to the 9 January 2014 decision.

CATCHWORDS:

EXTENSION OF TIME TO COMMENCE REVIEW – whether discretion should be exercised – lengthy delay – likely prejudice to builder

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 61
Queensland Building and Construction Commission Act 1991 (Qld), s 72(14)

Hunter Valley Developments v The Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Cardillo v Queensland Building Services Authority [2011] QCAT 574
Molier v Body Corporate for Q1 CTS 34498 [2012] QCATA 8
Harburg v Queensland Building Services Authority [2003] CCT Q068-03
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

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

Ms Brown seeks an extension of time to commence a review of the decisions of the Queensland Building and Construction Commission (‘the Commission’) made on 24 June 2011 (‘2011 Decision’) and 9 January 2014 (‘2014 Decision’).
The Commission opposes such an order being made in respect of the 2011 Decision. The Commission does not oppose such an order being made in respect of the 2014 Decision but submits that a new review application ought to be filed and standard directions made because the ‘issues including the relevant legislation and considerations are different’ to the decision dated 2 September 2013.
The Commission accepts that both decisions are reviewable decisions. Both decisions contain acknowledgements that the decision is reviewable by the Tribunal and that review applications must be made within 28 days.

2011 Decision

Ms Brown filed an Application to review on 14 October 2013 and specifically referenced a decision of the Commission made on 2 September 2013. In an attachment to her Application to review Ms…

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 487
Decision Date: 30 September 2014

CaseChat Overview and Summary

Deborah Brown brought a case against the Queensland Building and Construction Commission in relation to two separate reviewable decisions made on 24 June 2011 and 9 January 2014. The primary matter before the court was whether the tribunal should exercise its discretion to allow an extension of time for Brown to commence review of these decisions. A key concern was the significant delay in bringing the review application and the potential prejudice to the builder if the extension were granted.

The legal issues centred around the tribunal's discretion to extend time in the context of administrative law, particularly under the Judicial Review Act. The court had to consider the statutory framework governing time limits for judicial review applications, the principles of fairness and equity, and the specific circumstances of the case, including the length of the delay and any prejudice caused to the builder. Additionally, the court needed to balance the interests of justice with the need for legal certainty and finality.

The court found that the delay in bringing the review application for the 24 June 2011 decision was excessive and that there was likely to be significant prejudice to the builder if an extension were granted. Therefore, the application to extend time for this decision was dismissed. However, regarding the 9 January 2014 decision, the court considered that the delay was not so egregious and that the potential prejudice to the builder was not insurmountable. The application to extend time for this decision was allowed, and the time for filing the application was extended to 4:00pm on 24 October 2014. The court also noted that further directions would be made regarding the sequencing of the hearings once Brown's compliance with the order was known.

Orders

Orders of the court

1. Deborah Brown’s application to extend time in relation to the reviewable decision of the Queensland Building and Construction Commission dated 24 June 2011 is dismissed.

2. Deborah Brown’s application to extend time in relation to the reviewable decision of the Queensland Building and Construction Commission dated 9 January 2014 is allowed.

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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