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

1. 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”).

1. 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.

1. 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. 

1. 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.

1. 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 entitled to an extension of time under section 61(1)(a) Mr Orenshaw must establish firstly that the Tribunal has jurisdiction to hear the matter and secondly that the time limit is a procedural one capable of extension under that Act. If both of those questions are answered in the affirmative, Mr Orenshaw must then demonstrate that it is an appropriate exercise of this Tribunal’s discretion to grant an extension of time taking into account all circumstances relevant to the claim.

1. The threshold question for determination by this Tribunal is whether there is jurisdiction to entertain the review application having regard to section 86(2)(c) of the QBSA Act. That section provides that the Tribunal can not review a decision in relation to the scope of works if 28 days have elapsed and no application for review has been filed within that time, as is the case here.

1. In Smith v QBSA [2010] QCAT 448 at [30] Senior Member Oliver stated:

“Section 86(2) is a provision relevant to the substantive issue of whether jurisdiction exists to review a decision of the QBSA. Failure by a prospective applicant to file an application within the statutorily prescribed period of 28 days cannot be "cured" or "waived" by the operation of s.61(1) of the QCAT Act.”

1. This decision was applied by Member Stilgoe (as she then was) in Compig Pty Ltd v Queensland Building Service Authority [2011] QCAT 255 at [2] and by Member Howe in Cardillo v Queensland Building Services Authority [2011] QCAT 574 at [15] where he stated:

“Section 86(2) of the QBSA Act is a statutory imperative that directs the tribunal not to exercise its powers of review in the circumstances prescribed by that provision. The power given the Tribunal to grant relief from procedural requirements such as the making of an application for review within 28 days of decision, contained in s 61 QCAT Act, can only be exercised within the bounds of jurisdiction. Section 86(2) declares that matters falling within that subsection are beyond the tribunal’s jurisdiction.”

1. The statutory intention is plain. Section 86(1) prescribes matters that the Tribunal may review and section 86(2) of the QBSA Act prescribes matters which may not be reviewed. This application, in relation to the decision about the scope of works by the BSA falls within the second category and in circumstances where the application has not been filed in time there is no power under section 61 of the QCAT Act to provide relief for procedural requirements. The application is not properly before QCAT within its review jurisdiction.

1. It follows that the application to extend time should be dismissed and the application to review the BSA’s decisions should also be dismissed.