Coral Homes (Qld) Pty Ltd v Queensland Building Services

[2012] QCAT 180

CITATION: Coral Homes (Qld) Pty Ltd v Queensland Building Services [2012] QCAT 180

PARTIES:	Coral Homes (Qld) Pty Ltd (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR027-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 27 April 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.   Application to extend time dismissed.

2.   Application to review decision dismissed.

CATCHWORDS:

Building dispute – where Authority issued direction to rectify – where builders application for review filed outside 28 day period – application to extend time – whether Tribunal has jurisdiction to review decision – application to strike out

Queensland Building Services Authority Act 1991, s 86(1)(g) and (2)(c)
Queensland Civil and Administrative Tribunal Act 2009, s 61(1)

Cardillo v Queensland Building Services Authority [2011] QCAT 574
Compig Pty Ltd v Queensland Building Service Authority [2011] QCAT 255
Omae v Queensland Building Services Authority [2012] QCAT 80
Orenshaw v Queensland Building Services Authority [2012] QCAT 79
Smith v Queensland Building Services Authority [2010] QCAT 448

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Coral Homes (Qld) Pty Ltd (“Coral Homes”) has, by application filed 20 January 2012, sought review of a decision of the Queensland Building Services Authority (the “BSA”) received on 16 November 2012.

1. The decision relates to the direction to rectify 37055 issued pursuant to the Queensland Building Services Authority Act 1991 (“the QBSA Act”).

1. The application to review was filed in QCAT after more than 28 days had expired from the making of the decision and from receipt, by Coral Homes, of that decision.  This Tribunal must therefore consider both the application to extend time for filing of the application for review, which was filed with the application for review, and the BSA’s application to strike out the application.  The applicant has also sought, in the alternative, a stay of these proceedings pending the outcome of the related review applications.

1. Section 86 of the QBSA Act sets out the scope of QCAT’s review jurisdiction in respect of the BSA’s decisions. Relevantly, this section provides:

86 Reviewable decisions

(1)The tribunal may review the following decisions of the authority—

…

(e) a decision to direct or not to direct rectification or completion of tribunal work;  

…

(2)The tribunal must not review the following decisions of the authority—

…

(c)  a decision to direct rectification or completion of tribunal work if

(i)28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and

(ii)the authority has—

(C)started a prosecution, or served an infringement notice, for an offence against section 72(10);

It is common ground between the parties as a matter of fact that an act falling within s 86(2)(c)(ii)(C) has occurred.

1. An application to extend time relies upon the Tribunal’s jurisdiction under section 61(1)(a) of the QCAT Act to permit the Tribunal to extend a time limit fixed for the start of proceedings, including under an enabling Act such as the QBSA Act. That provision allows for relief from procedural requirements. In order to be entitled to an extension of time under section 61(1)(a) there must first be jurisdiction for the Tribunal to hear the matter. Only then can the consideration be made of the application to extend a procedural time limit under that Act. If both of those questions are answered in the affirmative, Coral Homes must then demonstrate that it is an appropriate exercise of this Tribunal’s discretion to grant an extension of time taking into account all circumstances relevant to the claim.

1. The threshold question for determination by this Tribunal is whether there is jurisdiction to entertain the review application having regard to section 86(2)(c) of the QBSA Act. That section provides that the Tribunal can not review a decision in relation to the scope of works if:

   (a) 28 days have elapsed;

   (b) no application for review has been filed within that time;

   (c)  a prosecution or infringement notice is operative.

1. In Smith v QBSA [2010] QCAT 448 at [30] Senior Member Oliver stated:

“Section 86(2) is a provision relevant to the substantive issue of whether jurisdiction exists to review a decision of the QBSA. Failure by a prospective applicant to file an application within the statutorily prescribed period of 28 days cannot be "cured" or "waived" by the operation of s.61(1) of the QCAT Act.”

1. This decision was applied by Member Stilgoe (as she then was) in Compig Pty Ltd v Queensland Building Service Authority [2011] QCAT 255 at [2] and by Member Howe in Cardillo v Queensland Building Services Authority [2011] QCAT 574 at [15] where he stated:

“Section 86(2) of the QBSA Act is a statutory imperative that directs the tribunal not to exercise its powers of review in the circumstances prescribed by that provision. The power given the Tribunal to grant relief from procedural requirements such as the making of an application for review within 28 days of decision, contained in s 61 QCAT Act, can only be exercised within the bounds of jurisdiction. Section 86(2) declares that matters falling within that subsection are beyond the tribunal’s jurisdiction.”[1]

[1]See also Orenshaw v Queensland Building Services Authority [2012] QCAT 79; Omae v Queensland Building Services Authority [2012] QCAT 80

1. The statutory intention is plain. Section 86(1) prescribes matters that the Tribunal may review and section 86(2) of the QBSA Act prescribes matters which may not be reviewed. This application, in relation to the decision to issue a direction to review by the BSA, falls within the second of those clauses and in circumstances where the application has not been filed in time there is no power under section 61 of the QCAT Act to provide relief from compliance with procedural requirements. The application does not fall within QCAT’s review jurisdiction.

1. The applicant urged the Tribunal to exercise its discretion to extend time, having regard to the power in s 61(1)(a) of the QCAT Act and the parties relevant to that exercise as directed in Gallagher v Queensland Building Services Authority [2010] QCAT 383 at [43]. However, the discretion is only enlivened to be exercised in matters where jurisdiction has been established. QCAT is a statutory creature deriving its powers and functions from the combined operation of the QCAT Act and the enabling Acts. Here, where s 86(2) of the QBSA Act plainly indicates that no jurisdiction rests with the Tribunal for review in these circumstances, there is no discretion to exercise. It follows that there is no jurisdiction to stay the proceedings either.

1. It follows that the application to extend time should be dismissed and the application to review the BSA’s decisions should also be dismissed.  It is therefore unnecessary to deal separately with the BSA’s application to strike out the proceedings.