Cyclone Constructions Pty Ltd v Queensland Building Services Authority

[2012] QCAT 621

CITATION: Cyclone Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 621

PARTIES:	Cyclone Constructions Pty Ltd (Applicant)
v
Queensland Building Services Authority   (Respondent)

APPLICATION NUMBER: GAR149-12

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Susan Gardiner, Member

DELIVERED ON: 6 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application to extend time to file an application to review is dismissed.

2.    The application to review a decision filed 30 April 2012 is dismissed.

CATCHWORDS:

BUILDING MATTERS – where Authority issued direction to rectify – where application to review filed outside 28 days – where application to extend time filed – where review dismissed for want of jurisdiction 

Queensland Building Services Authority Act 1991, s 86(2)(c)
Queensland Civil and Administrative Tribunal Act 2009, ss 48, 61

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 (QCAT Act).

REASONS FOR DECISION

1. Cyclone Constructions Pty Ltd has applied to extend the time in which to file a review of a QBSA direction to rectify.  The original QBSA direction was dated 17 January 2012 but a change of address by Cyclone meant that the notice was re-posted and service was deemed to have finally occurred on 25 January 2012.  

2. The QBSA wrote to Cyclone on 5 March 2012 advising that the work undertaken pursuant to the direction to rectify was unsatisfactory and in a further letter dated 23 March 2012 advised Cyclone that a claim under the statutory insurance scheme had been approved.  A notice of potential debt was also sent to Cyclone on 23 March 2012.

3. Cyclone filed a review application and an application to extend time on 30 April 2012. The extension application was necessary because the application was not filed within the required 28 days under section 86(2)(b) of the Queensland Building Services Authority Act 1991.

4. Because Cyclone’s application was filed out of time, the Authority now submits this Tribunal has no jurisdiction to determine the review application or to extend time to do so, because s 86(2)(c)of the QBSA Act provides that this Tribunal “must not” review the direction if the filing of the review application is not within 28 days of Cyclone’s receipt of the decision to issue the direction.  The Authority further submits that where the Tribunal has no jurisdiction, it cannot extend time.

5. In support of this submission, the QBSA points to the decision of the learned senior member in Smith v Queensland Building Services Authority[1] as a leading case on this point.  The learned senior member said :

   “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. This is not only because the time period is not procedural. It is more fundamentally because no jurisdiction has been created, thus the Tribunal would have no "reviewable decision" in which procedural steps could be taken.

   There is support for this view in both the relevant explanatory notes to the introduction of the relevant legislative provision, and in the cases referred to by the Authority, which have considered these provisions in a similar context.  (See Explanatory notes to s.104 of the Queensland Building Tribunal Act, the statutory precursor to s 86 of the QBSA; Manwin v. QBSA [2007] QDC 298; Mitchell v. QBSA [2001] QBT 39; Ken Harrison Homes Pty Ltd v. QBSA [2007] QCCTB 61)

   It therefore follows that, had the Review Application been outside the 28 day period, (and at least one of the requirements of s 86(2)(b)(ii) had been met, which was not in dispute here) the matter would have been outside QCAT's jurisdiction and no extension of time could have vested in QCAT the power to review an otherwise unreviewable decision.”

   [1] [2012] QCAT 448 at paras 30-32.

6. On the basis of s 86 of the QBSA Act and the previously decided cases in relation thereto, I am satisfied that there is no jurisdiction in this Tribunal to review the QBSA decision and therefore, no jurisdiction to extend time in relation to the direction to rectify.  Cyclone’s applications for extension of time and to review the notice to rectify must be dismissed.