Hansen v QBSA

[2012] QCAT 616

CITATION: Hansen v QBSA [2012] QCAT 616

PARTIES:	Philip Hansen (Applicant)
v
Queensland Building Services Authority   (Respondent)

APPLICATION NUMBER: OCR344-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Susan Gardiner, Member

DELIVERED ON: 7 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The time to file an application to review a decision is extended until 16 October 2012.

CATCHWORDS:

BUILDING MATTERS – where Authority refused application to be a permitted individual – where application to review filed outside 28 days – where application to extend time filed – where extension of time granted 

Queensland Building Services Authority Act 1991, s 86(2)(c)
Queensland Civil and Administrative Tribunal Act 2009, ss 33, 61

McClintock v QBSA [2010] QCATA 68 followed

Hunter Valley Developments v the Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344

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

1. Mr Hansen has applied to extend the time in which to file a review of a QBSA direction to refuse to categorise him as a permitted individual.  Mr Hansen applied to the BSA to be a permitted individual on 29 August 2012 and on 31 August 2012 the BSA notified Mr Hansen that his application was refused.  

2. The decision of the BSA is a reviewable decision under s 86(j) of the Queensland Building Services Act 1991.  Mr Hansen filed a review application and an application to extend time on 16 October 2012. 

3. The QBSA Act does not itself set time limits for the filing of a review in this type of decision. However section 33(2) of the Queensland Civil and Administrative Tribunal Act 2009 does set a time frame of 28 days for the filing of a review application.  Time runs from the day on which Mr Hansen was notified of the decision. 

4. Mr Hansen says he was notified of the decision on 4 September 2012.  The review application was filed on 16 October – some 14 days outside the 28 day limit.

5. The QCAT Act in s 61 allows the Tribunal to consider an application to extend time. There are limits to this power. Section 61(3) says that the Tribunal cannot extend time if to do so would cause prejudice or detriment to a party or a potential party to a proceeding.

6. Extending time is a discretionary power[1].  In the exercise of this power the accepted considerations are: whether there has been reasonable explanation for the delay in filing; whether the granting of an extension would be fair and reasonable in the circumstances; whether there has been any prejudice suffered as a result of the delay; and whether the substantive application has merit.  This is not an exhaustive list and the particulars of the matter are also to be considered[2].

   [1]        McClintock v QBSA [2010] QCATA 68 per Senior Member Oliver.

   [2]Hunter Valley Developments v. the Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at paras 4 and 5.

7. It should be noted that the QBSA Act specifically does not provide that this Tribunal “must not” review the direction if the filing of the review application is not within 28 days – as is the case for other types of review applications[3] where this Tribunal cannot extend time for want of jurisdiction after the review period has passed.  A discretion in the hands of the Tribunal seems to have been contemplated by this omission.

   [3]        QBSA Act, s 86(2)(b).

8. This discretion may be in place because of the very serious nature of an application to be a permitted individual.  This application concerns Mr Hansen’s livelihood. 

9. The BSA seeks to have the application for an extension of time dismissed.  It’s submissions (in summary) in this regard are as follows:

   i)     Mr Hansen has failed to reasonablely explain the delay in filing other than by unidentified “steps taken to satisify the QBSA” within the timeframe provided by the Authority; 

   ii)    Mr Hansen misrepresents the Authority’s notice to him of 9 October when he says he was given further time for action;

   iii)   the question of “fairness” is wider that just fairness to Mr Hansen and encompasses persons in a like position to Mr Hansen;

   iv)   the letter dated 31 August clearly told Mr Hansen what steps he should take to review the decision and the notice of 9 October did not speak of any further time;

   v)    the absence of prejudice is not sufficient to justify granting an extension;

   vi)   the “potential parties” who may suffer prejudice or detriment include excluded individuals who fail to review the Authority’s decision within the 28 day period;

   vii) Mr Hansen should be barred from review to provide certainty generally;

   viii)    Mr Hansen did not make the Authority aware that he intended to review the decision as set out as a further requirment gleaned from authorities of the former Commercial and Consumer Tribunal[4]; and

   ix)   finally, Mr Hansen has failed to identify facts or steps that would show merit in his application.

   [4]For example, the Body Corporate of Endless Summer Resort v QBSA [2009] CCT QR035-08.

10. I accept there is no prejudice to the Authoriy if this extension was granted.  I am not satisifed that “excluded individuals who fail to review the Authority’s decision within the 28 day period” is a sufficiently identified group to conclude that prejudice would occur to other potential parties.

11. I do not accept the submission that Mr Hansen should be barred from review to provide certainty generally.  It the legislature wanted certainty, it would have enacted a provision similar to s 86(2)(b) of the QBSA Act in relation to permitted individuals.  It did not.

12. I do not accept I must follow the previous decisions of the former Commercial and Consumer Tribunal.  Considering the short amount of time Mr Hansen is out of time by, it seems of little importance that the BSA was not kept informed.  I am not persuaded by this argument that the extension of time should not be granted.

13. Finally, it is true that Mr Hansen’s application is short in detail.  However, Tribunal directions will be made in the review process and Mr Hansen will stand or fall by his own effort in the material he files.  This application is a serious matter encompassing Mr Hansen’s livelihood and a rejection of a short extension of time (14 days only) would be harsh in the circumstances of the gravity of the matter to Mr Hansen and its potential affect on him. 

14. I am satisfied that an extension of time is appropriate and will make order accordingly.