McClintock v Queensland Building Services Authority - [2010] QCATA 68

CITATION:

McClintock v Queensland Building Services Authority [2010] QCATA 68

PARTIES:	Mr Peter Cyril McClintock (Appellant)
V
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

APL165-10

MATTER TYPE:

Appeal

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham, Deputy President
Richard Oliver, Senior Member

DELIVERED ON:

10 November 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The appeal is allowed.
The Tribunal’s decision dated 14 July 2010, in application number GAR006-10 is set aside.
Application number GAR006-10 is listed for hearing together with application number QR127-09 at 9.30 on 12 November 2010.

CATCHWORDS :

Application to extend time; where two matters arising out of the same factual circumstances are consolidated; consolidation not taken into account in the exercise of discretion.

QCAT Act section 142
QBSA Act section 56AC(2)(c)
QCAT Act section 33(3)
QCAT Act section 61(1)(b)
QBSA Act section 56AD(8)

Hunter Valley Developments Pty Ltd 3 FCR 344

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	The applicant self represented assisted by Aherns, Chartered Accountants
RESPONDENT:	Forbes Dowling solicitors for the respondent.

REASONS FOR DECISION

Judge Kingham, Deputy President

[1] Mr McClintock’s appeal is on the basis that the learned member’s discretion miscarried. That raises a question of law. Because that decision, in effect, finally disposed of Mr McClintock’s application to review the Building Services Authority’s decision to categorise him as an “excluded individual”, leave to appeal was not required[1].

[2] I have had the benefit of reading the reasons prepared by Mr Oliver in this matter. I agree with the order proposed and his reasons for making them.

Richard Oliver, Senior Member

[1] QCAT Act section 142

On 4 January 2010 Mr McClintock filed an application in QCAT seeking to review a decision of the Queensland Building Services Authority (“the Authority”) to categorise him as an “excluded individual” pursuant to section 56AC of the Queensland Building Services Authority Act (“QBSA Act”). The basis for the categorisation is that he was an influential person[2] in Crescent Couriers Pty Ltd (“the company”) when a relevant company event happened, that is the appointment of an Administrator to the company on 16 July 2008.
[2] QBSA Act section 56AC(2)(c)

Mr McClintock was advised of the Authority’s decision in a letter dated 16 July 2008. It is clear that his application for review is out of time as it was not filed in QCAT within 28 days.[3] To overcome this difficulty Mr McClintock filed an application to extend the time for bringing his review application.[4]
[3] QCAT Act section 33(3)
[4] QCAT Act section 61(1)(b)

The application to extend time was considered by QCAT, and a decision was made, on 14 July 2010, refusing to grant an extension of time. Mr McClintock now appeals from that decision.

The granting of an extension of time is discretionary. In exercising that discretion the usual principles apply and the learned member quite properly had regard to the accepted principles to be considered on such an application, these are:

a)whether there has been an reasonable explanation of the…

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: [2010] QCATA 68
Decision Date: 10 November 2010

CaseChat Overview and Summary

The applicant, McClintock, sought an extension of time from the Queensland Civil and Administrative Tribunal (QCAT) to lodge an application for review. This application was to review a decision of the Queensland Building Services Authority (QBSA). The QBSA had rejected an application for approval to construct a residential building in Brisbane. The matter was heard by a single member of QCAT, who dismissed the application on the basis that it was not lodged within the time limit prescribed by the QCAT Act. McClintock appealed the QCAT decision to the Queensland Court of Appeal. The appeal was based on the argument that the Tribunal failed to take into account that the two matters arising out of the same factual circumstances were consolidated.

The central issue before the Court of Appeal was whether the Tribunal erred in its exercise of discretion by not taking into account the consolidation of the two matters. The Court noted that the QCAT Act section 142 allowed the Tribunal to extend the time for making an application for internal review if it was satisfied that there were reasonable grounds for the delay. However, the QCAT Act section 33(3) and QCAT Act section 61(1)(b) also provided that the Tribunal should not take into account any other matters in the exercise of its discretion. The Court considered whether the consolidation of the two matters was a relevant factor that should have been considered by the Tribunal.

The Court of Appeal held that the Tribunal did not err in dismissing the application for an extension of time. The Court found that the consolidation of the two matters was not a relevant factor that should have been considered by the Tribunal in the exercise of its discretion under the QCAT Act. The Court noted that the QBSA Act section 56AD(8) and QBSA Act section 56AC(2)(c) did not require the Tribunal to take into account the consolidation of the two matters. The Court further held that the Tribunal was not required to consider any other matters in the exercise of its discretion, as provided by the QCAT Act section 33(3) and QCAT Act section 61(1)(b). The Court of Appeal dismissed the appeal and set aside the Tribunal’s decision dated 14 July 2010. The Court ordered that application number GAR006-10 be listed for hearing together with application number QR127-09 at 9.30 on 12 November 2010.

Orders

Orders of the court

1. The appeal is allowed.

2. The Tribunal’s decision dated 14 July 2010, in application number GAR006-10 is set aside.

3. Application number GAR006-10 is listed for hearing together with application number QR127-09 at 9.30 on 12 November 2010.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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