Quinlan v Queensland Building and Construction Commission - [2019] QCAT 349

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Quinlan v Queensland Building and Construction Commission [2019] QCAT 349

PARTIES: DANNY PETER QUINLAN

(applicant)

V

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR290-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:
1. The application to extend time filed on 5 August 2019 is dismissed.

2. The application to review a decision filed on 25 July 2019 is 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

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 [2011] QCAT 229

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

REPRESENTATION:

Applicant:

All Building Law

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

On 13 December 2018, the Queensland Building and Construction Commission (‘QBCC’) decided that Joanne Logue had validly terminated a domestic building contract with Mr Quinlan, with the consequence of allowing a claim for non-completion under the statutory insurance scheme.
The letter advising Mr Quinlan of this decision contained the following statement:
You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision.
On 25 July 2019, Mr Quinlan filed an application to review the decision with the Tribunal. On the application form, Mr Quinlan stated that he received the decision under review on or about 13 December 2018.
Section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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. It follows that the application for review was required to be made by 10 January 2019.
As the application for review was filed out of time, Mr Quinlan filed an application for an extension of time on 5 August 2019.
Section 61 of the QCAT Act gives the Tribunal power to extend a time limit fixed for the start of a proceeding. The Tribunal cannot extend time if to do so would cause prejudice or detriment to a party or potential party to a proceeding, not able to be remedied by an appropriate order…

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: [2019] QCAT 349
Decision Date: 7 November 2019

CaseChat Overview and Summary

In the case of Quinlan v Queensland Building and Construction Commission, the applicant, Mr Quinlan, sought to appeal a decision made by the Queensland Building and Construction Commission (QBCC). The dispute centred around the timeliness of the application for leave to appeal and an application for an extension of time to file the leave application. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues before the court were whether the applicant had provided a satisfactory explanation for the significant delay in filing the application for leave to appeal and whether the application for an extension of time should be granted. The court had to balance the interests of justice, the obligation of the Tribunal to deal with matters fairly, economically, and quickly, and the absence of prejudice to the QBCC against the lateness of the application.

The court found that while there was no prejudice to the QBCC and there might be some merit to Mr Quinlan's case, these factors were heavily outweighed by the interests of justice and the lack of an acceptable explanation for the delay. The court cited the principle that a satisfactory explanation for the delay is a precondition for exercising discretion in the applicant's favour, a principle affirmed in Cardillo v Queensland Building Services Authority. As Mr Quinlan did not provide an acceptable explanation, the application for an extension of time was refused, and consequently, the application to review the decision was dismissed.

The court's orders were that the application to extend time filed on 5 August 2019 was dismissed, and the application to review a decision filed on 25 July 2019 was also dismissed.

Orders

Orders of the court

1. The application to extend time filed on 5 August 2019 is dismissed.

2. The application to review a decision filed on 25 July 2019 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 Quinlan to file this application after a considerable delay.Conclusion The absence of prejudice to the QBCC, and the possibility of some merit to Mr Quinlan’s case, point in favour of extending the time for Mr Quinlan to apply for review of the exclusion decision. However, I am of the view that these factors are strongly outweighed by the interests of justice and the absence of a satisfactory explanation for what was a very lengthy delay. 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’.[5] Mr Quinlan has not done this.[5][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

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