Priest v Queensland Building and Construction Commission - [2018] QCAT 243

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Priest v Queensland Building and Construction Commission [2018] QCAT 243

PARTIES:

JAMES WILLIAM PRIEST
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR140-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 July 2018

HEARING DATE:

20 July 2018

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1. The application for an extension of time is refused.

2. The application to review a decision is therefore dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to extend time for leave to appeal

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether application for an extension of time should be granted

Professional Engineers and Other Legislation Amendment Act 2014 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld), s 56AC
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 33, s 61

Cardillo v Queensland Building Services Authority [2011] QCAT 574
Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

Crime and Misconduct Commission v Chapman & Anor [2001] QCAT 229
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
Paddon v Queensland Building and Construction Commission [2018] QCAT 100
Zizza v Commissioner of Taxation [1999] FCA 37

APPEARANCES & REPRESENTATION:

Applicant:

C H Matthews, instructed by All Building Law Pty Ltd

Respondent:

M Robinson, solicitor of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

On 6 December 2011, the Building Services Authority (‘the BSA’) made two decisions that Mr Priest was an excluded individual for the purposes of s 56AC of the then Queensland Building Services Authority Act 1991 (Qld). One of those decisions relates to the liquidation of Desmain Pty Ltd, of which Mr Priest was a director, and the other relates to his personal bankruptcy.
In the present proceedings, Mr Priest seeks review of the BSA’s decision that he was an excluded person arising out of his personal bankruptcy. The letter advising

Mr Priest of this decision contained the following statement:
BSA’s decision that you are an excluded individual is reviewable in the Queensland Civil and Administrative Tribunal (QCAT). Review applications to QCAT must be made within 28 days. Before make an application, you should consider obtaining independent legal advice.
I note that s 33 of the QCAT Act provides that an application for the review of a reviewable decision must be made within 28 days of, relevantly, the day the applicant is notified of the decision.
Mr Priest indicated that he received the decision on or about 9 December 2011. The application for review was therefore required to be made by 6 January 2012.
On 23 April 2018, Mr Priest filed an application to review the decision with the Tribunal. The application was filed out of time, so Mr Priest subsequently filed an application for an extension…

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: [2018] QCAT 243
Decision Date: 26 July 2018

CaseChat Overview and Summary

The matter before the court was an application by Mr. Priest to extend the time for leave to appeal a decision made by the Queensland Building and Construction Commission (QBCC). The application was lodged with the Queensland Civil and Administrative Tribunal (QCAT), which was the appropriate tribunal to hear the application. The primary issue the court had to determine was whether Mr. Priest's application for an extension of time should be granted. This decision hinged on several factors, including the merits of Mr. Priest's case, the explanation for the delay in filing the application, any prejudice caused to the QBCC, and the broader interests of justice.

The court considered various aspects of Mr. Priest's application. While Mr. Priest had good prospects of success in his review application, the court emphasised the importance of finality in litigation. The Tribunal's mandate to deal with matters fairly, economically, and quickly was cited as a reason against extending the time limit. The absence of a satisfactory explanation for the delay, the potential prejudice to the QBCC, and the overarching interests of justice were significant factors in the court's reasoning. The court referenced previous decisions to highlight that an acceptable explanation for the delay is a prerequisite for granting an extension.

Ultimately, the court concluded that the merits of Mr. Priest's case were outweighed by the lack of an adequate explanation for the delay and the prejudice to the QBCC. The court found that the interests of justice did not favour an extension of time. Therefore, the application for an extension of time was refused, and as a result, the application to review the QBCC's decision was dismissed.

ORDERS:
1. The application for an extension of time is refused.
2. The application to review a decision is therefore dismissed.

Orders

Orders of the court

1. The application for an extension of time is refused.

2. The application to review a decision is therefore dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The interests of justice do not favour an extension. As Thomas J noted in Coppens,[8] finality in litigation is highly desirable. The Tribunal’s obligation under s 3(b) of the QCAT Act to deal with matters, fairly, economically and quickly would not be achieved by allowing Mr Priest to file this application after a considerable delay.[8][2014] QCATA 309, 4 [14].Conclusion Mr Priest’s good prospects of success points in favour of extending the time for him to apply for review of the BSA’s decision. However, I am of the view that this factor is outweighed by the absence of a satisfactory explanation for the delay, the prejudice to the QBCC and the interests of justice. As Member Howe observed in Cardillo v Queensland Building Services Authority, “it has … been said that it is a precondition to the exercise of discretion in the applicant's favour that the applicant for extension show an acceptable explanation of the delay”.[9] Mr Priest has not done this.[9][2011] QCAT 574, 7 [33]. The application for an extension of time is refused. The application to review a decision is therefore dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Priest v Queensland Building and Construction Commission [2018] QCAT 243
PARTIES:	JAMES WILLIAM PRIEST (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR140-18
MATTER TYPE:	General administrative review matters
DELIVERED ON:	26 July 2018
HEARING DATE:	20 July 2018
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
ORDERS:	1. The application for an extension of time is refused. 2. The application to review a decision is therefore dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to extend time for leave to appeal PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether application for an extension of time should be granted Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 56AC Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 33, s 61 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 Crime and Misconduct Commission v Chapman & Anor [2001] QCAT 229 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 Paddon v Queensland Building and Construction Commission [2018] QCAT 100 Zizza v Commissioner of Taxation [1999] FCA 37
APPEARANCES & REPRESENTATION:
Applicant:	C H Matthews, instructed by All Building Law Pty Ltd
Respondent:	M Robinson, solicitor of Robinson Locke Litigation Lawyers