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

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.
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.
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.
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.
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…

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: [2012] QCAT 621
Decision Date

CaseChat Overview and Summary

In this case, Cyclone Constructions Pty Ltd sought to challenge a decision made by the Queensland Building Services Authority (QBSA). The dispute centred around the QBSA's issuance of a direction to rectify certain building works, which Cyclone deemed unsatisfactory. The applicant filed a review application outside the statutory 28-day period for such applications, leading to the current proceedings before the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue that the Tribunal had to decide was whether it had jurisdiction to review the QBSA's decision, particularly given that the review application was filed beyond the stipulated timeframe.

The Tribunal considered the provisions of the Queensland Building Services Authority Act 1991, specifically section 86(2)(c), which states that QCAT must not review a decision if the application for review is not filed within 28 days of the applicant receiving the decision. This statutory limitation is a jurisdictional bar, meaning that if the time limit is not met, the Tribunal lacks the authority to review the decision. The Tribunal also referred to the explanatory notes and previous case law, including the decision in Smith v Queensland Building Services Authority, which underscored that the 28-day period is not merely procedural but is fundamental to the creation of jurisdiction. As such, the Tribunal concluded that it did not have jurisdiction to entertain the review application or to extend the time for filing such an application.

Based on the above reasoning, the Tribunal dismissed both Cyclone Constructions Pty Ltd's application to extend the time for filing a review and the review application itself. The Tribunal found that the statutory time limit was a jurisdictional prerequisite, and since the applicant failed to meet this requirement, the Tribunal was unable to review the QBSA's direction to rectify. Consequently, no extension of time could be granted as it would exceed the Tribunal's jurisdiction.

Orders