Gardiner v Queensland Building Services Authority

[2011] QCAT 326

CITATION: Gardiner v Queensland Building Services Authority [2011] QCAT 326

PARTIES:	Carolyn Gardiner
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR370-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     12 July 2011

HEARD AT:  On the Papers

DECISION OF: Ms Anne Forbes

DELIVERED ON: 12 July 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    The application for review filed on 3 November 2010 is struck out.

2.    The application for costs and waiver of fee is dismissed.

CATCHWORDS :  Queensland Building Services Authority Act 1991 s 72(8) - Queensland Civil and Administrative Tribunal Act 2009 ss 47, 38, 61, 86, 102 – application for review out of time – BSA’s unilateral right to seek extension of time – review application struck out – whether certain amendments to Queensland Building Services Authority Act 1991 would be appropriate.

APPEARANCES and REPRESENTATION (if any):

Decision was made on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 27 September 2010 the Applicant, Ms Gardiner, complained to the Queensland Building Services Authority (BSA) about defective extension work to her property at Kimruska Place, The Gap, Brisbane. One week later the BSA dismissed her complaint, principally because it was received more than 6 years and three months after the work was completed.[1] That finding is not disputed. The BSA may apply to this Tribunal for an extension of time (s 72(8)) but the complainant building owner may not. Further, in a sequence Franz Kafka would appreciate, a BSA decision not to seek an extension is not reviewable under s 86 of the Queensland Civil and Administrative Authority Act 2009.[2]

[1]Queensland Building Services Authority Act 1991 s 72(8); Howe v QBSA [2009] QCCTB 17.

[2]Hogg & Anor v QBSA & Anor [2002] QBT 157; Andrews v QBSA [2008] CCT QR100-07; Howe v    QBSA [2009] QCCTB 17 at [2].

2. Nevertheless, Ms Gardiner filed an application for review of the BSA’s decision on 3 November 2010. 

3. In response, the BSA applies for an order under s 47 of the QCAT Act, dismissing or striking out the review application as misconceived or lacking in substance, contending that it has no prospects of success.

4. Ms Gardiner concedes that proposition in paragraph 7 of her application filed on 14 March 2011.  However, she now seeks: (1) retrospective waiver of the filing fee on her original application ($250); and (2) an order that the BSA pay her professional costs, amounting to $990.

5. For the first order, she relies on ss 38 and 61 of the QCAT Act, and for the second, on “the interests of natural justice and fairness”, which I interpret as an invocation of s 102 of the QCAT Act.

Waiver of Filing Fee

6. The QCAT Act does not define the adjective “procedural”. Clearly it is apt to refer to an extension of time under that Act or the rules[3], to a departure from prescribed forms[4] or to the correction of a misnomer.[5] There is one case in which section 61 of the QCAT Act was apparently used to exonerate a party from payment of an additional filing fee, but the party was unrepresented, the order was prospective, not retrospective, and the original fee was not remitted.[6] However, Ms Gardiner’s review application was prepared by professional advisers, and in the circumstances I am not prepared to make the novel order that she seeks.

[3]          Litzow v Racing Queensland Pty Ltd [2010] QCAT 414; Burns v James [2010] QCATA      101; Cornpig Pty Ltd  v Queensland Building  Services Authority [2011] QCAT 255.

[4]        Nash v Queensland Building Services Authority [2009] QCAT 29.

[5]Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87; Smith Development Pty Ltd v Moreton Island Development Group and Others [2011] QCAT 247 at [25].

[6]        PRD Nationwide v de Abaitua (No 2) [2010] QCATA 33.

Professional Costs

7. The Tribunal has no general power to order costs as a matter of natural justice and fairness, and it would be drawing a long bow to make an order under section 102 of the QCAT Act in favour of a legally represented party who brings an application with no real prospects of success. That provision does not extend to a virtual action for negligence against the BSA for failing to advertise in full the restrictions in sub-section 72(8) of the Queensland Building Services Authority Act 1991.

8. There will be no order for costs.

Suggested Amendment

9. However, I cannot leave this matter without offering two respectful suggestions for amendments to the Queensland Building Services Authority Act 1991. Bearing in mind that it is essentially a consumer-protection provision, it might well follow the general law of limitation of action by providing for cases in which a defect is latent for some time after completion of the work.[7] Second, it is odd, to say the least, that a party who has reasonable cause to seek an extension of time for review should be at the mercy of the proposed respondent to that process, namely the BSA. I respectfully suggest that an amendment to sub-section 72(8), proving a bipartisan right to apply for extra time, would promote the remedial objects of the Act.

[7]          See Hawkins v Clayton (1988) 164 CLR 539; Pullen v Guteridge Haskins & Davey (1993) 1 VR 27; Sherson & Associates Pty Ltd v Bailey & Ors [2000] NSWCA 275 at [24].

ORDERS:

1. The application for review filed on 3 November 2010 is struck out.

2. The application for costs and waiver of fee is dismissed.