Jasch v Queensland Building Services Authority

[2013] QCAT 586

CITATION: Jasch v Queensland Building Services Authority [2013] QCAT 586

PARTIES:	Gregory John Jasch (Applicant)
V
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: OCR103-13

MATTER TYPE: Occupational regulation matters 

HEARING DATE: 20 August 2013

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 20 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  The application to extend time for the filing of an application to review a decision is dismissed.

CATCHWORDS: Extension of Time – where application to extend time to review a decision to categorise the applicant as an excluded individual – where categorisation is by operation of statute – where explanation of delay – where no prospects of success of the review application

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. On 16 July 2013 Mr Jasch filed an application to review a decision made by the Queensland Building Services Authority on 11 October 2010 that he be categorised as an excluded individual under section 56AC of the Queensland Building Services Authority Act 1991. The reason he was so categorised is that on 2 September 2010 the Federal Magistrates Court made a sequestration order against his estate on the application of a trade creditor. Section 56AC says that when an individual takes advantage of the laws of bankruptcy and 5 years has not elapsed since the relevant bankruptcy event, the individual is deemed to be an included individual. The effect of this is that he cannot hold a license under the Act for a period of 5 years.

2. Section 33 of the QCAT Act provides that an application to review a decision must be filed in the Tribunal within 28 days of the person receiving the decision. The applicant received the decision in November 2010. He is well out of time.

3. To cure that defect, Mr Jasch filed an application to extend or shorten time under section 61 of the QCAT Act. His principle argument for the extension of time is that he has a reasonable explanation for the delay is because firstly, the Authority did not give Mr Jasch an information notice in accordance with section 157 of the QCAT Act. That section says that a decision maker must give written notice of the decision to the applicant to inform the applicant of the right to have the decision reviewed in QCAT; a period within which to apply for the review; and the right to have the decision stayed. The letter encompassing the decision from the Authority[1] to the application did not contain such a notice.

   [1]        “ND-3”.

4. Secondly, he submits he was without funds to obtain legal advice and when he was in a position to do so, in April 2013, he was first informed of this right to review the excluded individual decision.

5. The failure to provide such a notice under s 157 certainly would be a matter taken into account in considering whether there is a reasonable explanation for delay. However, the lack of the notice does not invalidate the decision. Similarly his ignorance of his rights until he could afford to get legal advice. I am therefore satisfied that there is a reasonable explanation for delay.

6. More importantly, even if an extension of time was granted, there is nothing in the application or the submissions which would suggest that Mr Jasch has any prospect of success in the review application.  As submitted by the Authority the Tribunal must take into account, in considering whether to grant an extension of time, the prospects of success of the substantive application.[2] The lack of the notice under s 157 does not invalidate the decision.

   [2]Hunter Valley Development Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344.

7. Mr Jasch’s categorisation as an excluded individual as a result of the bankruptcy event occurs by operation of the statute rather than by any discretion on the part of the decision maker. There is no dispute by Mr Jasch that he does not fall within section 56AC(1) of the QBSA Act and therefore, on the face of the application this Tribunal, on the review application, would be compelled to confirm the decision of the decision maker to so categorise Mr Jasch.

8. It is unfortunate that the notice of Mr Jasch’s review rights under section 157 of the QCAT Act were not incorporated in the letter informing him of his categorisation as an excluded individual however, that does not of itself justify the granting of an extension of time when his application is doomed to fail. The application for an extension of time is dismissed.