Focal Point Constructions Pty Ltd v Queensland Building and Construction Commission - [2024] QCAT 183

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Focal Point Constructions Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 183

PARTIES:

FOCAL POINT CONSTRUCTIONS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR137-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 May 2024

HEARING DATE:

8 May 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.     The time for the Queensland Building and Construction Commission to comply with direction 1 of the Tribunal Directions dated 26 July 2023 (to file and serve submissions in response to the application to extend a time limit) is extended to 14 August 2023.

2.     The application to extend a time limit filed by the applicant on 3 July 2023 is dismissed.

3.     The application to review a decision filed on 3 July 2023 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – GENERAL ADMINISTRATIVE REVIEW MATTERS – where contractor applied for review of decision dated 22 December 2022 and referred to ‘rectification decision ‘ but attached decision dated 13 January 2023 that work not completed satisfactorily – where tribunal directed following compulsory conference that decision under review taken to be decision dated 13 January 2023 – where applicant field an application to extend time to review the internal review decision dated 27 September 2022 confirming decision to issue direction to rectify and an amended application to review seeking to review the internal review decision – 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)(b), s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 33, s 61

Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435

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

On 22 August 2022 the Queensland Building and Construction Commission (‘Commission’) made a decision to give a direction to rectify (DTR) to Focal Point Constructions Pty Ltd (‘the applicant’) with respect to building work carried out at a property in Highland Park.
On 29 August 2022 the Commission received an internal review application seeking a review of the Commission’s decision to give a DTR.
On 27 September 2022 the Commission made the internal review decision to give a DTR to the applicant under s 72 of the Queensland Building and Construction Commission Act 1991 (QBCC Act) for complaint item 1 (internal review decision).
On 24 October 2022 a DTR was issued.
On 13 January 2023 the Commission notified the applicant of its decision that work undertaken at the direction of the Commission had not been completed satisfactorily. On 20 January 2023 the Commission served penalty infringement notice INF0000037019 (PIN) on the applicant for its failure to comply with the DTR issued on 24 October 2022.
On 14 February 2023 the applicant filed an application to review a decision seeking to review a decision of the Commission made on 22 December 2022 and received by the applicant on 6 February 2023. The application under the heading ‘Details of what you seek from the tribunal’ provided:
Overturn of rectification decision
Rectification work needed was not in my scope of work, the rectification should fall upon the stonemason and/or principle (sic) contractor (Nicola Morley) The window supplied by Nicola Morley came with design & install and a Form 15.
On 15 June 2023, the tribunal issued directions at the conclusion of a Compulsory Conference which provided, relevantly:
2. The decision under review is taken to be the decision dated 13 January 2023 that the direction items were not completed satisfactorily.
3. Focal Point Constructions Pty Ltd may file in the Tribunal and give the Queensland Building and Construction Commission any application to extend the time to file the initiating Application to review a decision, by 4:00pm on 7 July 2023.
…
On 3 July 2023, the applicant filed an amended review application (amended application) and an application to extend time a time limit (EOT application), seeking to review the internal review decision to issue a DTR dated 27 September 2022. On 10 July 2023, upon the Commission’s request for service, the applicant emailed the Commission the amended application and the EOT application.
On 4 August 2023 the Commission filed an application seeking to extend time to file its submissions in response due to the decision maker being on leave. I will grant that extension to 14 August 2023, the date the submissions were filed.
The submissions
The applicant’s reasons for seeking the extension of time are that it linked the original application to the wrong ‘case/decision step’ and is re-submitting the application to review and application to extend time as the time to review the internal review decision has passed its normal time frame.
The Commission opposed the EOT application on the grounds of the lengthy delay (247 days) in filing the application to review; the lack of a satisfactory explanation for the delay; the poor prospects of reviewing the decision due to it being no longer reviewable pursuant to s 86F(1)(b) of the QBCC Act; the prejudice to be suffered by the Commission should the extension be granted to review a non-reviewable decision; and the interests of justice lie in refusing the EOT application.
Consideration
The Tribunal has jurisdiction to review decisions in respect of which review jurisdiction has been conferred by an enabling Act.[1] Here the relevant enabling Act is the QBCC Act.
[1]QCAT Act, s 17.
Section 87 of the QBCC Act provides that an application may be made to the Tribunal to review a “reviewable decision…as provided under the QCAT Act.” An internal review decision is a reviewable decision.[2]
[2]QBCC Act, s 86E(b).
Section 86F of the QBCC Act sets out decisions which are not reviewable decisions and provides, relevantly:
86F DECISIONS THAT ARE NOT REVIEWABLE DECISIONS
(1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision—
…
(b) a decision to give a person a direction to rectify or remedy, and any finding by the commission in arriving at the decision if—
(i) 28 days have elapsed from the date the direction was served on a person and the person has not, within that time, applied to the tribunal for a review of the decision; and
(ii) the commission has—
(A) started a disciplinary proceeding against the person under part 6A; or
(B) served a notice on the person advising a claim under the statutory insurance scheme has been approved in relation to the building work relevant to the direction; or
(C) started a prosecution, or served an infringement notice, for an offence against section 73 in relation to the direction;
…
Section 33(3) and (4) of the QCAT Act provides that an application for review of a reviewable decision must be made within 28 days after the day the applicant is notified of the decision.[3]
[3]QCAT Act, s 33(4)(a) defines ‘relevant day’ as the day the applicant is notified of the decision.
Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) gives the tribunal power to extend a time limit fixed by the QCAT Act, an enabling Act or the rules.
The internal review decision was notified to the applicant on 27 September 2022.
The applicant did not seek review of the internal review decision until 3 July 2023, when it filed its amended application and the EOT application. To comply with s 33 of the QCAT Act, the applicant should have filed an external review application no later than 26 October 2022, being 28 days after the relevant day.
By the time the applicant filed the amended application to review on 3 July 2023, 249 days had elapsed. This is a significant delay for which there is no satisfactory explanation.
More fundamentally however, under s 86F(1)(b) of the QBCC Act a decision to give a DTR is no longer reviewable if 28 days have elapsed from the date the direction was served on a person and the person has not, within that time, applied for review and, either the Commission has:
(a) started a disciplinary proceeding against the person;
(b) served a notice on the person advising that a claim under the statutory insurance scheme has been approved in relation to the building work relevant to the DTR; or
(c) started a prosecution, or served an infringement notice, for an offence against s 73 in relation to the DTR.
Applying s 86F the internal review decision is no longer reviewable because:
(a)the relevant DTR was served on the applicant on 24 October 2022.
(b)the applicant had not applied for external review of the internal review decision by 21 November 2023, being 28 days from the date the DTR was served on the applicant.
(c)an Infringement Notice for an offence against s 73 was issued to the applicant on 20 January 2023.
Accordingly, by the time the applicant applied for external review on 3 July 2023 the elements of s 86F were satisfied, and the internal DTR decision was no longer reviewable.
It is settled that s 61 of the QCAT Act can not be used to extend time under s 86F.[4] This is because s 86F has been held to be “a mandatory provision having substantive rather than procedural effect”.[5] Watkins was applied by the Tribunal in Sunup Solar Pty Ltd v Queensland Building and Construction Commission[6] where it was held:
The issue arises as to whether s 61 of the QCAT Act can be used to extend the time limit in s 86F of the QBCC Act. It is settled that the power in s 61(1)(b) to extend a time limit under an enabling Act can not be used to extend time under s 86F of the QBCC Act being a mandatory substantive rule of law which defines and limits the jurisdiction of the Tribunal.[7]
[4]Queensland Building and Construction Commission v Watkins [2014] QCA 172.
[5]Ibid at [16].
[6][2015] QCAT 435.
[7]Ibid at [61].
Accordingly, for the reasons above, the application for an extension of time and the amended review application are dismissed. I make orders accordingly.