Orenshaw v Queensland Building Services Authority - [2012] QCAT 79

CITATION:

Orenshaw v Queensland Building Services Authority [2012] QCAT 79

PARTIES:	Wayne Frances Orenshaw (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR338-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Kate Buxton, Member

DELIVERED ON:

24 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to extend time dismissed.

2. Application to review a decision dismissed.

CATCHWORDS:

Building dispute – where Authority issued scope of works – where home owner’s application to review filed outside 28 day period – application to extend time – whether Tribunal has jurisdiction to review decision

Queensland Building Services Authority Act 1991, ss 86(1)(g) and (2)(c)
Queensland Civil and Administrative Tribunal Act 2009, s 61(1)

Smith v QBSA [2010] QCAT 448
Compig Pty Ltd v Queensland Building Service Authority [2011] QCAT 255
Cardillo v Queensland Building Services Authority [2011] QCAT 574

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Mr Orenshaw is a homeowner who has, by application filed 2 November 2011, sought review of a decision of the Queensland Building Services Authority (the “BSA”) made on 1 August 2011 and 19 August 2011 (“the decisions”).

The decisions relate to the scope of works to be undertaken under the statutory insurance scheme created under the Queensland Building Services Authority Act 1991 (“the QBSA Act”). Such decision is, prima face, reviewable by QCAT subject to the terms of the QBSA Act which I will set out in detail below insofar as they relate to this application.

Mr Orenshaw’s application to review was filed in QCAT after more than 28 days had expired from the making of the decisions. This Tribunal must therefore consider Mr Orenshaw’s application to extend time for filing of the application for review.

Section 86 of the QBSA Act sets out the scope of QCAT’s review jurisdiction in respect of the BSA’s decisions. Relevantly, this section provides:

86 Reviewable decisions
(1) The tribunal may review the following decisions of the authority—
…
(g)a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work;
…

(2) The tribunal must not review the following decisions of the authority—
…
(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.

Mr Orenshaw’s application to extend time seeks to enliven the Tribunal’s jurisdiction under section 61(1)(a) of the QCAT Act which permits the Tribunal to extend a time limit fixed for the start of proceedings, including under an enabling Act such as the QBSA Act. That provision allows for relief from procedural requirements. In order to be…

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: [2012] QCAT 79
Decision Date: 24 February 2012

CaseChat Overview and Summary

In Orenshaw v Queensland Building Services Authority, the dispute arose from a building services contract between the plaintiff, a homeowner, and the defendant, the Queensland Building Services Authority (QBSA). The conflict centred around the issuance of a scope of works document by the QBSA, which the homeowner contested. The homeowner subsequently filed an application for review outside the stipulated 28-day period, seeking an extension of time and a review of the QBSA's decision. The case was brought before the Queensland Civil and Administrative Tribunal (QCAT) to determine whether the Tribunal had the jurisdiction to review the decision in light of the late application and to consider the application to extend time.

The primary legal issue before the Tribunal was whether it had the jurisdiction to review the QBSA's decision to issue the scope of works, given that the homeowner's application to review was filed beyond the statutory 28-day period. A secondary issue was whether the Tribunal could grant an extension of time for the homeowner's application to review. The Tribunal had to consider relevant statutory provisions, case law, and principles of administrative law in reaching its decision.

The Tribunal held that it did not have the jurisdiction to review the QBSA's decision as the homeowner's application was filed outside the 28-day period stipulated by the Building Act. The Tribunal emphasised that the statutory timeframe was mandatory and jurisdictional, meaning that the Tribunal could not extend the time for the application to review. The Tribunal also dismissed the application to extend time, as it found that there were no exceptional circumstances warranting an extension. Consequently, both the application to extend time and the application to review the QBSA's decision were dismissed.

The final orders of the Tribunal were clear and straightforward. The application to extend the time for the homeowner's application to review was dismissed. Additionally, the application to review the QBSA's decision to issue the scope of works was also dismissed due to the late filing and the lack of jurisdiction to review it. These decisions underscored the importance of adhering to statutory timeframes in administrative law and the limited circumstances under which a Tribunal may grant an extension of time.

Orders

Orders of the court

1. Application to extend time dismissed.

2. Application to review a decision dismissed.

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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