Hiscock v Queensland Building and Construction Commission - [2024] QCAT 52

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hiscock v Queensland Building and Construction Commission [2024] QCAT 52

PARTIES:

STEVEN WILLIAM HISCOCK

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR240-22

MATTER TYPE:

Building matters

DELIVERED ON:

18 January 2024

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1. The application by the applicant filed 14 June 2022 for an extension of the time to apply to the Tribunal for external review of the internal review decisions is dismissed.

2. The application by the applicant filed 14 June 2022 for external review of the internal review decisions is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – APPLICATION FOR EXTERNAL REVIEW OF INTERNAL REVIEW DECISIONS – APPLICATION FOR AN EXTENSION OF TIME – whether Tribunal should grant an extension of time to apply to the Tribunal for external review of an internal review decision – whether the Tribunal is able to extend time to apply to the Tribunal for external review of an internal review decision

Queensland Building and Construction Commission Act 1991 (Qld), s 67WC, s 86, s 86F, s 87

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

Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1, schedule 6

All Systems Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 237
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
Queensland Building and Construction Commission v Watkins [2014] QCA 172
Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Application

The applicant, on 14 June 2022, applied to the Tribunal for external review of the following internal review decisions:
(a)the decision of the respondent’s Principal Review Officer, Ms Tyler, given on 19 July 2021 (insurance internal review decision); and
(b)the decision of Ms Tyler given on 19 July 2021 (fifth scope of works internal review decision),
(together, internal review decisions) (application for external review). The application was not filed within the time prescribed by the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
On the same day as filing the application for external review, the applicant made application to the Tribunal for an extension of the time to apply to the Tribunal for external review of the decisions (application for extension of time).
The respondent, on 5 September 2022, filed submissions opposing the extension of time (respondent’s submissions).
The applicant filed two affidavits of his lawyer, Mr Sulman, the first affirmed on 21 September 2022 and the second on 7 October 2022. The first affidavit complains about the late filing of the respondent’s submissions. It was cured by further directions given on 13 September 2022. The affidavit may be put to one side.
The second affidavit deposes to the reason for the application for external review (Mr Sulman’s second…

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: [2024] QCAT 52
Decision Date: 18 January 2024

CaseChat Overview and Summary

The matter before the court involved an application by a building contractor for an extension of time to apply for external review of two internal review decisions made by the Queensland Building and Construction Commission. The first decision related to insurance, and the second to the scope of works under the Scheme to rectify or complete tribunal work. The applicant sought to have the time limit for applying for external review extended beyond the 28 days stipulated under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The central legal issue the court had to decide was whether the Queensland Civil and Administrative Tribunal (Tribunal) had the power to extend the time limit for applying for external review of an internal review decision, and whether such an extension should be granted in this case. The court considered the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), particularly section 61(1), which grants the Tribunal the power to extend or waive procedural requirements under the Act or an enabling Act, provided that such action would not cause prejudice or detriment to a party that could not be remedied by an order for costs or damages.

The court found that the Tribunal did have the power to extend the time limit under section 61(1) of the QCAT Act, but the decision to grant such an extension was a discretionary one. The court applied a two-stage process in considering the application, first determining whether granting an extension would cause prejudice or detriment, and then considering other relevant factors. The court noted that the applicant's application for an extension was made about eleven months after the insurance internal review decision was sent and about ten months after the applicant asserts he received it. Given the significant delay and the absence of any justification for the delay, the court concluded that granting an extension would cause prejudice to the Commission and dismissed the application for an extension. Consequently, the application for external review was also dismissed.

ORDERS:
1. The application by the applicant filed 14 June 2022 for an extension of the time to apply to the Tribunal for external review of the internal review decisions is dismissed.
2. The application by the applicant filed 14 June 2022 for external review of the internal review decisions is dismissed.

Orders

Orders of the court

1. The application by the applicant filed 14 June 2022 for an extension of the time to apply to the Tribunal for external review of the internal review decisions is dismissed.

2. The application by the applicant filed 14 June 2022 for external review of the internal review decisions is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 87 of the QBCC Act provides that a person affected by a reviewable decision of the Commission may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to the Tribunal for a review of the decision. A decision about the scope of works to be undertaken under the Scheme to rectify or complete tribunal work is a reviewable decision.[2] It is not a reviewable decision 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.[3][2]QBCC Act, s 86(1)(g).[3]Ibid, s 86F(1)(c). An application to review a reviewable decision must be made by filing it in the registry within 28 days after the relevant day.[4] Here, the relevant day is the day the applicant was notified of the decision.[5][4]QCAT Act, s 33(3).[5]Ibid, s 33(4)(a). The Tribunal, under section 61(1) of the QCAT Act, may, by order, extend a time limit fixed for the start of a proceeding by the Act or an enabling Act, extend or shorten a time limit fixed by the Act, an enabling Act, or the rules, or waive compliance with another procedural requirement under the Act, an enabling Act, or the rules. An extension or waiver may be given under section 61(1) even if the time for complying with the relevant requirement has passed. Importantly, the Tribunal cannot extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.[6][6]Ibid, s 61(3). I turn now to consider the application for an extension of the time to apply for external review of the two decisions, the insurance internal review decision and the scope of works internal review decision. First, the former decision. The insurance internal review decision was sent by the respondent to the applicant by email on 19 July 2021. If that be the day on which he was notified of the decision, he was required to file the application by 16 August 2021. The applicant asserts in the application he did not receive the decision until 9 August 2021. If so, he was required to file any application to review the decision by 6 September 2021. The application was filed on 14 June 2022, about eleven months after the decision was sent by email and about ten months after the applicant asserts he received it. The power in the Tribunal to extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act is found in section 61(1)(a) of the Act. It is a discretionary power. As was said by Member Traves (as she then was) in Jensen v Queensland Building and Construction Commission[7]:Applications under s 61 have been approached by the Tribunal as a two stage process: first, by determining whether an order under s 61 would cause prejudice or detriment not able to be remedied by a costs order or damages; and secondly, in the absence of prejudice or detriment, consideration of other factors relevant to the exercise of the discretion contemplated by s 61.[8][7][2017] QCAT 232.[8]Ibid, at [66].

Ratio Decidendi

Legal Principle Established

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