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

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.
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.
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.
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.
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.
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]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 616
Decision Date

CaseChat Overview and Summary

The applicant, Philip Hansen, applied for an extension of time to file an application to review a decision by the Queensland Building Services Authority (QBSA) to refuse his application to be categorised as a permitted individual. The QBSA had notified Hansen on 31 August 2012 of its refusal to accept his application. Hansen filed his review application and application to extend time on 16 October 2012, 14 days outside the 28-day limit stipulated by section 33(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The QBSA opposed Hansen's application to extend time on various grounds, including that Hansen had not provided a reasonable explanation for the delay, and that the granting of an extension would be unfair to other potential parties. Hansen argued that there was no prejudice to the QBSA if the extension was granted, and that it would be harsh to deny the extension given the seriousness of the matter and its potential impact on him.

The court considered the relevant statutory provisions and case law, including McClintock v QBSA and Hunter Valley Developments v the Honourable Barry Cowen, Minister for Home Affairs and Environment. The court noted that the Queensland Building Services Authority Act 1991 (QBSA Act) does not itself set time limits for the filing of a review in this type of decision, but that section 33(2) of the QCAT Act does set a time frame of 28 days for the filing of a review application. Section 61 of the QCAT Act allows the Tribunal to consider an application to extend time, but only if to do so would not cause prejudice or detriment to a party or a potential party to a proceeding. The court also considered the accepted considerations for the exercise of this power, including whether there has been a 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.

The court rejected the QBSA's arguments that Hansen had not provided a reasonable explanation for the delay, that the granting of an extension would be unfair to other potential parties, and that Hansen should be barred from review to provide certainty generally. The court also rejected the QBSA's argument that Hansen had failed to identify facts or steps that would show merit in his application. The court found that Hansen's application was short in detail, but noted that Tribunal directions would be made in the review process and that Hansen would stand or fall by his own effort in the material he files. The court found that the short amount of time Hansen was out of time by, and the seriousness of the matter and its potential affect on Hansen, meant that it was appropriate to grant the extension of time.

The court ordered that the time to file an application to review a decision is extended until 16 October 2012.

Orders