Childs v Queensland Building and Construction Commission - [2019] QCAT 281

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Childs v Queensland Building and Construction Commission [2019] QCAT 281

PARTIES:

JONATHAN CHILDS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR275-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1. The application to extend time filed on 5 August 2019 is dismissed.

2. The application to review a decision filed on 15 July 2019 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to extend time for leave to appeal

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – 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 3, s 33, s 61

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

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
Jensen v Queensland Building and Construction Commission [2017] QCAT 232

REPRESENTATION:

Applicant:

Self-represented

Respondent:

N Thirumoorthi

APPEARANCES:

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 19 May 2017, the Queensland Building and Construction Commission (‘QBCC’) issued a direction to rectify to Benix Pty Ltd in response to a complaint made by Mr Childs.
The letter advising Mr Childs of this 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.
On 15 July 2019, Mr Childs filed an application to review the decision with the Tribunal. On the application form, Mr Childs stated that he received the decision under review on 19 May 2017.
The application was filed out of time, so Mr Childs subsequently filed an application for an extension of time on 5 August 2019.
Section 61 of 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…

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: [2019] QCAT 281
Decision Date: 13 September 2019

CaseChat Overview and Summary

The case of Childs v Queensland Building and Construction Commission involves an application by Mr Childs to extend the time for leave to appeal a decision made by the Queensland Building and Construction Commission (QBCC). The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central issue before the court was whether the application for an extension of time should be granted, given that the applicant had filed an application to review a decision out of time.

The court considered several factors in reaching its decision. The primary legal issue was the balance between the interests of justice, the desirability of finality in litigation, and the Tribunal’s obligation to deal with matters fairly, economically, and quickly. The court noted that while there was no prejudice to the QBCC and some merit to Mr Childs’s case, these factors were outweighed by the overarching interests of justice. The absence of a satisfactory explanation for the considerable delay in filing the application for an extension of time further influenced the court's decision. The court emphasised the importance of the applicant providing an acceptable explanation for the delay, as highlighted in previous cases such as Cardillo v Queensland Building Services Authority.

The court concluded that the application for an extension of time should be refused. Given the refusal of the extension application, the court also dismissed the application to review the decision. The reasoning was based on the significant delay in filing the extension application, the lack of an acceptable explanation for this delay, and the paramount importance of finality in litigation. The court’s decision was therefore in line with the principles established in previous cases.

The final orders of the court were that the application to extend time filed on 5 August 2019 was dismissed, and the application to review a decision filed on 15 July 2019 was also dismissed. This outcome effectively denied Mr Childs the opportunity to appeal the original decision of the QBCC.

Orders

Orders of the court

1. The application to extend time filed on 5 August 2019 is dismissed.

2. The application to review a decision filed on 15 July 2019 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The interests of justice do not favour an extension. As Thomas J noted in Coppens,[4] 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 Mr Childs to file this application after a considerable delay.[4][2014] QCATA 309, 4 [14].Conclusion The absence of prejudice to the QBCC, and the possibility of some merit to Mr Childs’s case, point in favour of extending the time for Mr Childs to apply for review of the exclusion decision. However, I am of the view that these factors are strongly outweighed by the interests of justice and the absence of a satisfactory explanation for what was a very lengthy delay. 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’.[5] Mr Childs has not done this.[5][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

Full text does not contain this section.

CITATION:	Childs v Queensland Building and Construction Commission [2019] QCAT 281
PARTIES:	JONATHAN CHILDS (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR275-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	13 September 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
ORDERS:	1. The application to extend time filed on 5 August 2019 is dismissed. 2. The application to review a decision filed on 15 July 2019 is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to extend time for leave to appeal PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – 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 3, s 33, s 61 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 Jensen v Queensland Building and Construction Commission [2017] QCAT 232
REPRESENTATION:
Applicant:	Self-represented
Respondent:	N Thirumoorthi
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).