Smith v Queensland Building Services Authority
[2010] QCAT 448
•15 September 2010
| CITATION: | Smith v Queensland Building Services Authority [2010] QCAT 448 |
| PARTIES: | Mr Bradley George Smith |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | GAR081-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver – Senior Member |
| DELIVERED ON: | 15 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Compliance with the procedural requirement to stamp the Tribunal’s seal on the application lodged with the Tribunal on 19 January 2010 is waived. 2. The application to join Ryan Mayne and Amy Mayne and Eco Housing Building Systems as respondents is refused. |
| CATCHWORDS : | Procedural requirements for filing an application in QCAT; whether prescribed fee must be paid on filing for the application to be filed; sections 33(2), section 38 and Rule 31 considered; waiver of requirement to stamp seal on application and consideration of section 61(1)(c) of the QCAT Act; Application to join parties; consideration of section 42 of the QCAT Act. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Bradley Geroge Smith represented by Mr B. Herd solicitor of Carne Reidy Herd Lawyers |
| RESPONDENT: | Queensland Building Services Authority represented by Ms K Hunt, solicitor |
REASONS FOR DECISION
On 21 December 2009 the Queensland Building Services Authority (“the Authority”) issued a Direction to Rectify and/or Complete number 33970 to the Applicant in respect of building work undertaken by him at 119 Dean Road, Verrierdale, a property owned by Ryan and Amy Mayne (“the Maynes”).
The Direction to Rectify noted that:
“BSA’s decision to direct you to carry out the work as detailed on page 3 of this document is reviewable in the Queensland Civil and Administrative Tribunal (QCAT). Review applications to QCAT must be made within 28 days. Before making an application, you should consider obtaining independent legal advice.”
The right to review is contained in section 86 of the Queensland Building Services Authority Act (“QBSA Act”) which is in the following terms:-
“The tribunal must not review the following decisions of the authority—
(a) a decision to recover an amount under section 71;
(b) a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if—
(i) 28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision”
On 19 January 2010 the Applicant lodged with the Tribunal an application to review the Authority’s decision. The application has a Tribunal date stamp on it stating “19 Jan 2010”. On the right hand side at the top of the application there is a box “for office use only” which records case number, date, registry, sent to, fee paid and rec no. This information is recorded in the box by Tribunal staff, but on this document the box has nothing recorded in it. A comparison with the subsequent application to review that was filed on 16 March 2010, shows that the case number is recorded as GAR081-10 etc.
It is the Applicant’s contention that the application lodged with the Tribunal on 19 January 2010 would be sufficient to satisfy the requirements of section 86(2)(b)(i) in that the Applicant has, by that document, “applied to the Tribunal for a review of the decision”.
The Respondent contends that on its proper construction, an application to the Tribunal must be accompanied by the prescribed fee of $250. There is no evidence the fee was paid and this is consistent with the application not being completed by the registry. If this application is not “filed” for the purposes of the commencement of the review application, then the application of 16 March 2010, the Applicant must obtain an extension of time from the Tribunal pursuant to section 61(1)(a) which provides:-
“(1)The tribunal may, by order—
(a)extend a time limit fixed for the start of a proceeding by this Act or an enabling Act;
Starting a Proceeding
A proceeding is started in the Tribunal by making an application[1]
(1) The application must:-
[1] Section 33
b)Be in a form substantially compliant with the rules; and
c)State the reasons for the application; and
d)Be filed in the registry[2]
(2) If the application is for the review of a reviewable decision, the application must be made, by filing it in the registry, within 28 days after the relevant day.
[2] Section 33
Section 33 refers to the filing of the document for the purposes of making an application. However section 33 must be read in conjunction with rule 31 of the QCAT Rules which is in division 3 “provisions about filed documents”. The rule states:-
“When a document is filed:
(1) A document is filed when the principle registrar records the document and stamps the Tribunal’s seal on it
(2) After filing a document, the principle registrar must stamp the Tribunal seal on each copy of the document that accompanied it.”
Rule 32 gives the registrar discretion to refuse to file a document if the document does not comply with the rules or cannot otherwise be filed. Therefore on the plain meaning of rule 31(1), it is the stamping of the Tribunal’s seal which is the critical act signifying the document has been filed.
10. When one has regard to the application lodged on 19 January 2010 it does not have the Tribunal’s seal. By contrast, the document filed on 16 March 2010 does have the Tribunal’s seal on it.
11. I have been referred to section 36 of the QCAT Act which sets out when the “proceeding starts”. It provides that a proceeding starts when the application is accepted by the registrar however, the example given in that section is as follows:
“However, under section 38, the tribunal must not take any action on the application or referral until the prescribed fee, if any, for the application or referral is paid.”
12. Section 38 deals with fees and imposes an obligation on an Applicant to pay the prescribed fee for the application. Subsection (2) directs the Tribunal not to take “any action on the application or referral until the fee is paid”.
13. These two latter sections are only applicable if there is a valid application filed in the registry. Applying section 33(1), the application lodged in the Tribunal on 19 January 2010 does appear to be in the form substantially complying with the rules, sets out the reasons for the application but, the Tribunal seal has not been stamped on the document[3]. Technically then, due to this procedural deficiency the application has not been filed.
[3] QCAT rule 31
14. If the application has not been filed in the registry then, in my view, section 36 and section 38 have no application. Put another way, if the registry had accepted the application by affixing the Tribunal’s seal to it and it otherwise complied with section 33(2) then the application would be stayed or, could not be proceeded with until the prescribed fee had been paid but, in those circumstances the application, having been filed, would have satisfied section 86(2)(b)(i) of the QBSA Act.
15. Neither the QCAT Act, nor the Rules, proscribe that an application will be filed when the prescribed fee is paid. The applicant referred to Caltabiano v Electoral Commission of Queensland[4] in support of the proposition that the failure to pay the prescribed is not fatal to whether the application is filed. Although the case has entirely different factual circumstances it does have some relevance. In that case an application made under the Electoral Act disputing the election must comply with the requirements of the Act, in particular section 130(3) which required that:
[4] (2009) QCA 182
“The person disputing the election….when filing the Application, deposit with the court $400.00”.
16. The Court of Appeal held that the failure to lodge the deposit at the time of filing the application was fatal to the application, in that the application was held not to have been validly filed, even though the document was received in the registry within the required time.
17. The Uniform Civil Procedure Rules also stipulated that a document may only be filed if any prescribed fee is paid when the document is given to the Registry.[5]
[5] UCPR 971
Waiver of procedural requirement
18. This then leads to the application of section 61(1)(c) of the QCAT Act:
1. The tribunal may, by order
(c)Waive compliance with another procedural requirement under this Act, and enabling Act or the rules.
19. The stamping of the Tribunal seal to the application is a procedural requirement, in circumstances where the application has been lodged and accepted by the Tribunal, in the absence of the fee being paid. The Tribunal can therefore, exercise a discretion, pursuant to section 61 and waive this requirement, being one of the three procedural requirements for filing.
20. What seems clear in this application, is that the applicant was intent on reviewing the Authority’s decision, lodged an application with the Tribunal in time, but did not pay the prescribed fee. The registry accepted the application because the original was on the Tribunal’s file.
21. When exercising the discretion I must have regard to the prejudice or detriment to the Authority. Although the Authority has not made specific submissions on this it is difficult to see how it could be disadvantaged when the applicant sought to remedy the situation by filing a further application on 16 March 2010.
22. In the meantime the Authority commenced processing the Mayne’s claim under the statutory insurance scheme and on 15 February 2010 notified the applicant of the scope of work to be undertaken under the scheme. The applicant did not review this decision. Even if the Authority did proceed to carry out the work the subject of the scope of work, and the review filed 19 January 2010 was unsuccessful, the Authority can still recover from the applicant.
23. Alternatively if the discretion is not exercised in favour of the applicant, for the reasons set out below, the later application must be dismissed and he will suffer prejudice. This is particularly so where he contends the defective work was the responsibility of a contractor directly engaged by the Maynes, not that I am making any finding or determination about this issue.
24. In the circumstances and as a matter of procedural fairness, I am of the opinion that the procedural requirement of stamping the Tribunal’s seal should be waived in this instance and the application filed 19 January 2010 will constitute the application for this proceeding.
Alternate application for extension of time
25. As an alternative, the Applicant has applied for an extension of time for the application filed on 16 March 2010 pursuant to section 61(1)(a) which permits that the Tribunal, by order to “extend a time limit fixed for the start of the proceeding by this Act or an enabling Act”. The enabling Act here is the QBSA Act.
26. Given my decision to cure the procedural defect in the filing of the first application, it is unnecessary to decide the issues raised in relation to the application of s.86(2) of the QBSA. The application falls within s.86(1) and therefore, the application for review of the decision having been made within 28 days, s.86(2) is not relevant. So much is accepted by the Respondent in paragraph 8 of its submissions.
27. However, for completeness, I make the following observations as to the operation of the Tribunal’s review jurisdiction.
28. The Tribunal’s review jurisdiction is created by the relevant sections of the QCAT Act and particularly, for these purposes, sections 17 and 18. Section 17(1) states plainly that an enabling act must confer jurisdiction upon the Tribunal. Only such a "reviewable decision" may be validly reviewed by this Tribunal pursuant to s.18 of the QCAT Act.
29. It is necessary to go to the enabling Act, in this case the QBSA Act 1991, to determine which decisions are "reviewable" by the Tribunal. Section 86 defines what may and may not be reviewed. Each of the matters listed in s.86(1) are reviewable, subject to the other matters raised in s.86. It is plain that section 86 must be read as a whole, and in its context, to ensure it is given its proper meaning. Section 86(2), then, provides an exception or qualification to the list of reviewable decisions which immediately precede it. The introductory words are express and mandatory, providing that the Tribunal "must not review" certain decisions. Far from enabling review, this provision is plainly excluding from review the types of decisions referred to in s.86(2).
30. 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. This is not only because the time period is not procedural. It is more fundamentally because no jurisdiction has been created, thus the Tribunal would have no "reviewable decision" in which procedural steps could be taken.
31. There is support for this view in both the relevant explanatory notes to the introduction of the relevant legislative provision, and in the cases referred to by the Authority, which have considered these provisions in a similar context. (See Explanatory notes to s.104 of the Queensland Building Tribunal Act, the statutory precursor to s.86 of the QBSA; Manwin v. QBSA [2007] QDC 298; Mitchell v. QBSA [2001] QBT 39; Ken Harrison Homes Pty Ltd v. QBSA [2007] QCCTB 61)
32. It therefore follows that, had the Review Application been outside the 28 day period, (and at least one of the requirements of s.86(2)(b)(ii) had been met, which was not in dispute here) the matter would have been outside QCAT's jurisdiction and no extension of time could have vested in QCAT the power to review an otherwise unreviewable decision.
Joinder of the Maynes and Eco Housing Building Systems
33. The applicant contends that as the Maynes have an interest in the outcome of this proceeding, which obviously they do, they ought be joined as a party[6].
[6] Section 42 of the QCAT Act.
34. The applicant contends that Eco Housing Building Systems (“Eco Housing”) is also a relevant party as the supplier of the kit home, which he constructed. The direction to rectify, it is contended, calls into question the structural integrity of the building by virtue of design, plans and specifications of the kit home supplied by Eco Housing. Essentially what the applicant is saying is that if the building work is defective it is the fault of Eco Housing and not him.
35. However, even if this is right, the applicant in this proceeding can claim no relief against Eco Housing, nor can the Tribunal order that Eco Housing rectify or that the Authority issue a direction to rectify to it.
36. This application is to consider, by way of a fresh hearing, whether the direction to rectify should be set aside or upheld or some other order made as between the applicant and the Authority[7]. To include Eco Housing in this proceeding would force it into litigation for which it would receive no benefit. In this respect I agree with the submissions of the Authority[8].
[7] Sections 20 and 24 QCAT Act
[8] Authority’s written submissions para 17 ff.
37. When regard is had to the criteria for joinder that is set out in section 42 of the QCAT Act, it is difficult to see how Eco Housing could benefit from any order made by the Tribunal, nor would any of its interests be affected by the proceeding. Even if it was accepted by the Tribunal that there were design faults attributed to the Eco Housing design, no order adverse to the interests of Eco Housing could be made in this proceeding.
38. In Comfortable Homes Pty Ltd v QBSA[9] the applicant sought to join the engineers who prepared a foundation design report for a residential dwelling. In the review application by the builder, it sought to join the engineers alleging design faults. The Tribunal, in dismissing the application, expressed similar considerations to those above about the utility of any order that might concern the engineers. After consideration of the power to join the Tribunal Member said:
“It follows that, given the limited orders which the Tribunal may make in the review proceedings, it is difficult to conceive of any such order, which might be made in the present case, which might benefit WBA or by which WBA could be bound. Suppose, for example, that the Tribunal should confirm the Authority's decision. How, it may be asked rhetorically, might that, of itself, be of benefit to WBA? And how, even if the reasoning process leading to the decision involved an analysis of the design and a conclusion that it was defective and a cause of the damage to the house, could the order bind WBA, if it were a party to the proceeding? Such examples might be multiplied to reflect the various permutations and combinations of outcome of the principal application, and the factual analyses and reasoning processes which might lead to them”[10].
[9] (2001) 61
[10] Ibid page 7
39. Further, joinder of Eco Housing would result in unnecessary delays and costs to both parties without utility. It may also add to the complexity of the issues given the position of the applicant that the defects go to design rather than actual construction. If the applicant does propose to contest the direction to rectify on the basis submitted, then the Authority is at liberty to lead evidence from representatives of Eco Housing to contest this position if it chooses to do so.[11]
[11] Also a consideration in Comfortable Homes Pty Ltd v QBSA
40. With respect to the joinder of the Maynes, again I consider this unnecessary. There is separate litigation in this Tribunal between these parties and in my view, although the issues for determination in this application are not the same or similar to those in BD491-09, the same result could be achieved if both proceedings could be heard together.[12]
[12] Section 55 QCAT Act.
41. Therefore the application for joinder will be refused.
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