McClintock v Queensland Building Services Authority

CITATION: McClintock v Queensland Building Services Authority [2010] QCAT 340

PARTIES:	Peter Cyril McClintock
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR006-10

MATTER TYPE: General administrative review matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 14 July 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The application to commence a review proceeding is dismissed.

CATCHWORDS :  Application to commence review proceeding – whether applicant is an excluded individual – whether applicant is an influential person – where majority shareholder of company – whether administrator appointed for the benefit of a creditor – delay – prejudice – section 56AC QBSA Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. By letter dated 16 July 2008, the Authority determined that Mr McClintock was an excluded individual pursuant to section 56C of the Queensland Building Services Authority Act. By letter dated 22 December 2009, received by the tribunal on 4 January 2010, Mr McClintock filed an application for review of that decision.

2. Until 1 December 2009, any application for review of the decision had to be made to the Commercial and Consumer Tribunal. Section 102 of the Commercial and Consumer Tribunal Act stated that any application for review of a decision must be filed within 28 days of receiving written notice of that decision. Section 52 of that Act gave the tribunal power to waive compliance with procedural requirements and/or extend a time limit fixed by the Act for doing any thing.

3. The provisions of the Commercial and Consumer Tribunal Act are echoed in the Queensland Commercial and Administrative Tribunal Act; section 33(3) nominates a timeframe of 28 days and section 61 allows the tribunal to extend a time limit fixed for the start of a proceeding.

4. Whether under the Commercial and Consumer Tribunal Act or the Queensland Commercial and Administrative Tribunal Act, it is clear that Mr McClintock has not complied with the requirement to file his application within 28 days of receipt of the notice. He must ask the tribunal to exercise its discretion to extend the time in which to file the application.

5. Section 61(3) of the Queensland Commercial and Administrative Tribunal Act states that the tribunal cannot extend a time limit 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 the proceedings.

6. In deciding similar questions, the Commercial and Consumer Tribunal adopted the guidelines set out in Re Hunter Valley Developments Pty Limited[1]:

a)Special circumstances need not be shown but the tribunal will not grant the application unless positively satisfied that it is proper so to do.

b)The prescribed period is not to be ignored. It is a pre-condition to the exercise of discretion in his favour that Mr McClintock show an "acceptable explanation of the delay" and…