QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Exclusive Living and Lifestyle Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 472
PARTIES:
EXCLUSIVE LIVING AND LIFESTYLE PTY LTD (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:
GAR520-24
MATTER TYPE:
General administrative review matters
DELIVERED ON:
25 October 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Lumb
ORDERS:
1. The time for the Respondent to file its submissions is extended to 23 September 2024.
2. The application to extend a time limit filed by the Applicant on 29 July 2024 is dismissed.
3. The Application to review a decision filed on 29 July 2024 is dismissed.
4. The Respondent’s application for leave to be represented is dismissed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – GENERAL ADMINISTRATIVE REVIEW MATTERS – where applicant filed an application to extend time to review respondent’s internal review decision to approve a scope of works – whether application to extend time to review the internal review decision should be granted – whether decision no longer reviewable pursuant to s 86F of the Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86F(1)(c), s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 33, s 61
Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59
Queensland Building and Construction Commission v Watkins [2014] QCA 172
APPEARANCES & REPRESENTATION:
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
Introduction
On 30 April 2024, the Respondent (‘the QBCC’) decided to issue a scope of works (‘scope of works decision’) having previously allowed a claim under the statutory insurance scheme established under the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).
The allowance of the claims followed a direction to rectify being issued by the QBCC against the Applicant in relation to building work performed at the affected party’s property.
On 24 June 2024, the QBCC made an internal review decision (‘IDR’) that approved the scope of works in its current format.
On 25 June 2024, a decision notice in respect of the IDR was received by the Applicant.
On 29 July 2024, the Applicant filed an application to review the IDR (‘the Review Application’).
Also on 29 July 2024, the Applicant filed an application to extend time to review the IDR (‘the EOT application’).
On 19 August 2024, the Tribunal made a direction that the QBCC file submissions in response to the EOT application by 4:00pm on 12 September 2024.
On 23 September 2024, the QBCC filed:
(a)an application to extend time to file its submissions in response to the EOT application (due to internal capacity constraints resulting in the outsourcing of the matter to external solicitors who were instructed to act on 19 September 2024).
(b)an application for leave to be represented.
On 23 September 2024, the QBCC filed its submissions.
I am satisfied that it is appropriate to grant an extension of time for the filing of the QBCC’s submissions to 23 September 2024, the date the submissions were filed.
QBCC’s contentions
The QBCC submits that the EOT application cannot be allowed because the IDR is not a ‘reviewable decision’ pursuant to s 86F(1)(c) of the QBCC Act because:
(a)the IDR was a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete Tribunal work; and
(b)the Review Application was filed more than 28 days after the date the IDR was served on the Applicant;
(c)in those circumstances, the QBCC submits that the Tribunal does not have the power to extend the 28-day time limit and the Tribunal does not have jurisdiction to decide the Review Application.
Consideration
The Tribunal has jurisdiction to review decisions in respect of which review jurisdiction has been conferred by an enabling Act.[1] The relevant enabling Act in this matter is the QBCC Act.
[1]QCAT Act, s 17.
Section 87 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that a person affected by a reviewable decision of the QBCC may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision.
Subject to s 86F of the QBCC Act, a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work is a ‘reviewable decision’.[2]
[2]QBCC Act, s 86(1)(g), s 86E(b).
Relevantly for present purposes, s 86F of the QBCC Act sets out decisions which are not reviewable decisions including, in subsection (c):
a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision
There is no dispute that, and I find that, the IDR was a decision falling within the scope of s 86F(c) of the QBCC Act.
The Review Application makes plain that the IDR was served on the Applicant by email on 25 June 2024.[3] It follows that more than 28 days elapsed between that date and the date of filing of the Review Application.[4]
[3]Review Application, Part B.
[4]Section 33 of the QCAT Act provides that an application for the review of a ‘reviewable decision’ must be made, by filing it in the registry, within 28 days after the ‘relevant day’ (which means, relevantly, the day the applicant is notified of the decision).
Although s 61 of the QCAT Act gives the Tribunal power to extend a time limit fixed by the QCAT Act, an enabling Act or the Queensland Civil and Administrative Tribunal Rules 2009, it is settled that s 61 of the QCAT Act cannot be relied upon to extend the 28-day time limit provided for by s 86F of the QBCC Act (s 86F is a ‘mandatory provision having substantive rather than procedural effect’).[5]
It follows, as submitted by the QBCC, that the Tribunal does not have the power to extend the 28-day time limit and the Tribunal does not have jurisdiction to decide the Review Application. Each of the EOT application and the Review Application must be dismissed.
Leave to be represented
In light of my decision in relation to the Review Application and the EOT application, it is unnecessary to give the QBCC leave to be represented.
Orders
For the reasons set out above:
(a)the time for the Respondent to file its submissions is extended to 23 September 2024;
(b)the application to extend a time limit filed by the Applicant on 29 July 2024 is dismissed;
(c)the Application to review a decision filed on 29 July 2024 is dismissed;
(d)the Respondent’s application for leave to be represented is dismissed.
- AGLC
- Exclusive Living and Lifestyle Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 472
- Case
- [2024] QCAT 472
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether the application to extend time to review the QBCC's decision should be granted. This required the Tribunal to determine whether the decision was no longer reviewable because it had not been reviewed within 28 days of being served on the applicant. The Tribunal considered the relevant statutory provisions, including section 86F(1)(c) of the QBCC Act, which sets out decisions which are not reviewable decisions if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision. The Tribunal found that the decision in question was a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work, and that more than 28 days had elapsed between the date the decision was served on the applicant and the date the review application was filed. The Tribunal held that it did not have the power to extend the 28-day time limit and therefore did not have jurisdiction to decide the review application.
The Tribunal dismissed both the application to extend time and the review application. It found that the QBCC's submission that the IDR was not a 'reviewable decision' pursuant to s 86F(1)(c) of the QBCC Act was correct, and that the Tribunal did not have the power to extend the 28-day time limit provided for by s 86F of the QBCC Act. The Tribunal also dismissed the QBCC's application for leave to be represented.
Orders
Orders of the court
1. The time for the Respondent to file its submissions is extended to 23 September 2024.
2. The application to extend a time limit filed by the Applicant on 29 July 2024 is dismissed.
3. The Application to review a decision filed on 29 July 2024 is dismissed.
4. The Respondent’s application for leave to be represented 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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The QBCC submits that the EOT application cannot be allowed because the IDR is not a ‘reviewable decision’ pursuant to s 86F(1)(c) of the QBCC Act because:(a)the IDR was a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete Tribunal work; and(b)the Review Application was filed more than 28 days after the date the IDR was served on the Applicant;(c)in those circumstances, the QBCC submits that the Tribunal does not have the power to extend the 28-day time limit and the Tribunal does not have jurisdiction to decide the Review Application.Consideration The Tribunal has jurisdiction to review decisions in respect of which review jurisdiction has been conferred by an enabling Act.[1] The relevant enabling Act in this matter is the QBCC Act.[1]QCAT Act, s 17. Section 87 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that a person affected by a reviewable decision of the QBCC may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision. Subject to s 86F of the QBCC Act, a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work is a ‘reviewable decision’.[2][2]QBCC Act, s 86(1)(g), s 86E(b). Relevantly for present purposes, s 86F of the QBCC Act sets out decisions which are not reviewable decisions including, in subsection (c):a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision There is no dispute that, and I find that, the IDR was a decision falling within the scope of s 86F(c) of the QBCC Act. The Review Application makes plain that the IDR was served on the Applicant by email on 25 June 2024.[3] It follows that more than 28 days elapsed between that date and the date of filing of the Review Application.[4][3]Review Application, Part B.[4]Section 33 of the QCAT Act provides that an application for the review of a ‘reviewable decision’ must be made, by filing it in the registry, within 28 days after the ‘relevant day’ (which means, relevantly, the day the applicant is notified of the decision). Although s 61 of the QCAT Act gives the Tribunal power to extend a time limit fixed by the QCAT Act, an enabling Act or the Queensland Civil and Administrative Tribunal Rules 2009, it is settled that s 61 of the QCAT Act cannot be relied upon to extend the 28-day time limit provided for by s 86F of the QBCC Act (s 86F is a ‘mandatory provision having substantive rather than procedural effect’).[5][5]Queensland Building and Construction Commission v Watkins [2014] QCA 172, [8], [14]-[16]. See also Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59. It follows, as submitted by the QBCC, that the Tribunal does not have the power to extend the 28-day time limit and the Tribunal does not have jurisdiction to decide the Review Application. Each of the EOT application and the Review Application must be dismissed.Leave to be represented