Haimes v Queensland Building and Construction Commission

Case [2018] QCAT 361

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Haimes v Queensland Building and Construction Commission [2018] QCAT 361

PARTIES:

LUKE HAIMES
(applicant)
v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR217-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 October 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The application to extend time filed on 25 July 2018 is dismissed.

2.   The application to review a decision filed on 29 June 2018 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – absence of jurisdiction – application dismissed on basis that it is misconceived

Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86F
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, 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
Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435

REPRESENTATION:

Applicant:

All Building Law

Respondent:

N Thirumoorthi

APPEARANCES:

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

  1. On 22 May 2018, the Queensland Building and Construction Commission (‘the QBCC’) made a decision about a scope of works to be undertaken under the statutory insurance scheme to complete tribunal work.

  2. On 29 June 2018, Mr Haimes filed an application to review a decision with the Tribunal. In that application, he stated that he received the QBCC decision on 22 May 2018.

  3. On 25 July 2018, Mr Haimes filed an application to extend time.

  4. Division 3 of Part 7 of the Queensland Building and Construction Commission Act 1991 (Qld) deals with review proceedings.

  5. Subdivision 1 deals with internal review. Section 86 sets out what decisions of the QBCC are reviewable:

    Reviewable decisions

    (1) Each of the following decisions of the commission under this Act is a reviewable decision –

    …

    (g) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work; …

  6. Subdivision 2 deals with external review, which is to say review by the Tribunal. Section 86F sets out what decisions of the QBCC are not externally reviewable:

    Decisions that are not reviewable decisions

    (1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision –

    …

    (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.

  7. The effect of these provisions is to impose a 28 day time limit on external review which does not apply to internal review.

  8. It has been held in numerous cases that the power in s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) cannot be used to extend the 28 day time limited imposed by s 86F(1)(c).[1] The application to extend time must therefore be dismissed.

  9. It is simply the case that the 28 day time limit ended on 19 June 2018. Mr Haimes did not file his application to review a decision until 10 days later. In those circumstances, the decision is not reviewable by the Tribunal.

  10. The application to review a decision is dismissed pursuant to s 47(1)(a) of the QCAT Act on the basis that it is misconceived.


Details
AGLC
Haimes v Queensland Building and Construction Commission [2018] QCAT 361
Case
[2018] QCAT 361
Decision Date

CaseChat Overview and Summary

The matter of Haimes v Queensland Building and Construction Commission was a legal dispute that came before the Queensland Civil and Administrative Tribunal. Mr Haimes sought to challenge a decision made by the Queensland Building and Construction Commission (QBCC) regarding the scope of works under the statutory insurance scheme. The primary contention was whether the Tribunal had jurisdiction to review the QBCC's decision, considering the time elapsed since the decision was served.

The court was required to determine if the Tribunal had the authority to entertain Mr Haimes' application to review the QBCC's decision, which was made more than 28 days prior to the application. This hinged on the interpretation of Section 86F(1)(c) of the relevant Act, which stipulates a 28-day time limit for such external reviews. Given that Mr Haimes' application was filed 10 days beyond this limit, the core legal issue was whether the QCAT Act could extend this time limit.

The court held that the 28-day time limit for external review, as set by Section 86F(1)(c), is non-extendable under Section 61 of the QCAT Act. This conclusion was supported by numerous precedents that consistently held the same. As Mr Haimes' application to review was lodged beyond this statutory period, the court found that the application was misconceived and dismissed it under Section 47(1)(a) of the QCAT Act. The application to extend time, filed separately, was also dismissed for the same reasons.

The court issued two primary orders. First, the application to extend the time for review, filed on 25 July 2018, was dismissed. Second, the application to review the decision, filed on 29 June 2018, was also dismissed on the basis that it was misconceived.

Orders

Orders of the court

1. The application to extend time filed on 25 July 2018 is dismissed.

2. The application to review a decision filed on 29 June 2018 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Subdivision 2 deals with external review, which is to say review by the Tribunal. Section 86F sets out what decisions of the QBCC are not externally reviewable:Decisions that are not reviewable decisions(1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision – …(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. The effect of these provisions is to impose a 28 day time limit on external review which does not apply to internal review. It has been held in numerous cases that the power in s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) cannot be used to extend the 28 day time limited imposed by s 86F(1)(c).[1] The application to extend time must therefore be dismissed.[1]See, eg, Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435, [61]; Queensland Building and Construction Commission v Watkins [2014] QCA 172, [16]; Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59, [18]. It is simply the case that the 28 day time limit ended on 19 June 2018. Mr Haimes did not file his application to review a decision until 10 days later. In those circumstances, the decision is not reviewable by the Tribunal. The application to review a decision is dismissed pursuant to s 47(1)(a) of the QCAT Act on the basis that it is misconceived.

Ratio Decidendi

Legal Principle Established

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