Monaco v Queensland Building and Construction Commission

[2018] QCAT 443

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Monaco v Queensland Building and Construction Commission [2018] QCAT 443

PARTIES:

ANTONIO MONACO
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR364-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The application to extend time filed on 18 October 2018 is dismissed.

2.   The application to review a decision filed on 18 October 2018 is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – absence of jurisdiction – application dismissed on basis that it is misconceived

Acts Interpretation Act 1954 (Qld), s 39, s 39A
Queensland Building and Construction Commission Act 1991 (Qld), s 86F
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 61

Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59
Queensland Building and Construction Commission v Watkins [2014] QCA 172
Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435

REPRESENTATION:

Applicant:

L Watt

Respondent:

D McNulty

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 1 August 2018, the Queensland Building and Construction Commission (‘the QBCC’) made a decision about a scope of works to be undertaken under the statutory insurance scheme to complete tribunal work.

2. On 18 October 2018, Mr Monaco filed an application to review a decision with the Tribunal. In that application, he stated that he received the QBCC decision on 19 August 2018.

3. On 18 October 2018, Mr Monaco filed an application to extend time.  The grounds for an extension of time were relevantly stated to be:

   The QBCC purportedly sent a Scope of Works letter to our client on 01 August 2018, which allowed for an external review to be conducted within 28 days of receiving the decision.

   This correspondence was not received by our client until 19 September 2018 when it was emailed to our office.

4. There is obviously a conflict in the date of receipt specified in the application to review a decision (19 August 2018) and the date specified in the application to extend time (19 September 2018).

5. Irrespective of this, the effect of s 39A of the Acts Interpretation Act 1954 (Qld) (‘AI Act’) is that the decision letter is taken to have been received ‘at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved’.

6. The QBCC provided a file note recording that the decision was posted on 1 August 2018. The QBCC provided references to the Australia Post website stating that regular letters are delivered ‘2-6 business days after posting’. The QBCC also provided evidence that the decision was sent to the address maintained on Mr Monaco’s licence records, being his last known business and residential address for the purposes of s 39(1)(a)(ii) of the AI Act.

7. The statutory presumption therefore is that the decision was received by Mr Monaco on or before 7 August 2018.  Mr Monaco has provided not any evidence beyond a mere assertion to prove the contrary.  In particular, he has not provided a statement (on oath or otherwise) setting out his account relating to his asserted non-receipt of the decision.  In those circumstances, I am not satisfied that the statutory presumption has been displaced.

8. Division 3 of Part 7 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) deals with review proceedings. Subdivision 2 deals with external review, which is to say review by the Tribunal. Section 86F sets out what decisions of the QBCC are not externally reviewable:

   Decisions that are not reviewable decisions

   (1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision –

   …

   (c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work 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.

9. The effect of these provisions is to impose a 28 day time limit on external review.

10. It has been held in numerous cases that the power in s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) cannot be used to extend the 28 day time limited imposed by s 86F(1)(c).[1] The application to extend time must therefore be dismissed.

    [1]See, eg, Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435, [61]; Queensland Building and Construction Commission v Watkins [2014] QCA 172, [16]; Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59, [18].

11. It is simply the case that the 28 day time limit ended on 4 September 2018.  Mr Monaco did not file his application to review a decision until 18 October 2018. In those circumstances, the decision is not reviewable by the Tribunal.

12. The application to review a decision is dismissed pursuant to s 47(1)(a) of the QCAT Act on the basis that it is misconceived.