Sunup Solar Pty Ltd v Queensland Building and Construction Commission
[2015] QCAT 435
•22 October 2015
| CITATION: | Sunup Solar Pty Ltd v Queensland Building And Construction Commission [2015] QCAT 435 |
| PARTIES: | Sunup Solar Pty Ltd (Applicant) |
| v | |
| Queensland Building And Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR096-15 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| DECISION OF: | Member Traves |
| DELIVERED ON: | 22 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for extension of time is dismissed on the basis it is unnecessary given that the original application for review is deemed to have been made within time. | ||
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW MATTERS – whether original application for review properly made – application of s 35 of the QCAT Act – power of Tribunal to order that rejected application be deemed to have been properly made in circumstances where original application named incorrect party as respondent/decision-maker – amended application subsequently filed out of time in circumstances where decision no longer reviewable under enabling Act - whether extension of time to file application for review can be granted under s 61 QCAT Act – whether extension of time in enabling Act can be granted - effect of s 86F(1)(b) QBCC Act 1991 (Qld). Evans v Jones (1862) 2 B & S 45; 121 ER 991 | ||
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 20 August 2015 the Tribunal directed that the issue of whether an Application to Review in this matter had been filed within time was to be determined. This direction was made following an Application to extend a Time Limit or for Waiver of compliance with a Procedural Requirement filed by the applicant on 26 June 2015. The parties were invited by the Tribunal to make further submissions on particular issues by letter dated 2 September 2015.
The QBCC issued a Direction to Rectify to Sunup Solar Pty Ltd (the applicant) on 12 January 2015. The applicant applied for internal review of that decision on 27 January 2015. The internal review decision to issue a direction to rectify was made on 10 March 2015.
On 23 March 2015 the QBCC withdrew the original direction. A second direction was issued on 30 March 2015. An infringement notice in relation to the applicant’s failure to rectify the defects was issued on 15 May 2015.
On Friday, 10 April 2015 the applicant’s signed Application for Review, supporting documentation and a cheque for the application fee of $295.00[1] was received by QCAT. This was within 28 days from the time it received notice of the decision. However in the Application the relevant homeowner was named as the respondent rather than the QBCC. For that reason the Application was not accepted by the QCAT Registry.
[1] Cheque No 200108, Westpac, Nerang.
On 13 April an amended application with the name of the QBCC as respondent was forwarded by email to QCAT.
The applicant received an instant response from QCAT which stated:
Your email has been received at the Queensland Civil and Administrative Tribunal (QCAT) and will be forwarded to the appropriate area for attention.”
The amended application of 13 April 2015 was not processed.
On 16 April 2015 QCAT returned the original application, supporting documentation and cheque to the applicant under cover of a letter which provided:
Reference is made to your application received by this registry on 10 April 2015.
Your application and supporting documentation has been returned to you for the following reasons:
1. Registry staff have tried to contact you without any success.
2. You will need to provide the full name and address of the respondent.
If you have any further queries please contact the registry on 1300 753 228.”
The applicant did not respond to this request. It appears the applicant understood it had addressed the registry’s concerns by its email of 13 April and that the amended application had been accepted. This is understandable given the content of the email they received on 13 April and may explain why it did not respond to QCAT’s queries. That there was confusion on the applicant’s part as to the status of its application is apparent from an exchange of correspondence between the parties. On 26 May 2015 the QBCC advised the applicant that QCAT had not filed its’ application for review and suggested the applicant contact QCAT. The applicant replied that day stating it had contacted QCAT, that “there has been a mistake made” and that the application “will be lodged the next day”.
A further amended application was filed on 29 May 2015. The application filed was in fact the original application stamped “Received 10 April 2015, QCAT Brisbane”, which had been returned to the applicant by the Registry, with a new page 3 inserted with the correct respondent’s name and details. The application was re-stamped “Received 29 May 2015, Queensland Civil and Administrative Tribunal”, the ‘Table for office use only’ was completed, a Case Number allocated and the application fee accepted.
The QBCC submits that the application for review was not properly made until 29 May 2015 and that since, by this time, an infringement notice had been served and it was more than 28 days since the date the direction to rectify was served, that QCAT no longer has jurisdiction to review the decision.[2] It follows, the QBCC submits, that as the Tribunal does not have jurisdiction to review the decision, it is not possible for the applicant to be granted an extension of time.[3]
[2] Queensland Building and Construction Commission Act 1991 (Qld) s 86F(1)(b).
[3] NQ Industries Pty Ltd v Queensland Building Services Authority [2011] QCAT 41 at [24].
The issues are:
a) Was an application for review made within 28 days of being notified of the relevant decision?
b) If not, does QCAT have power to extend the time fixed by the QCAT Act or by the enabling Act?
Was an application for review made within time
Section 17 of the QCAT Act provides:
(1)The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
(2)For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.
Section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) provides that a person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision.
The decision to direct rectification was made on 10 March 2015. This is the relevant date from which the time to apply for review is to be calculated. The fact that directions were withdrawn and re-issued is not relevant. As Dalton J held in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority:[4]
QCAT has jurisdiction to review the decision of the respondent to direct rectification. The decision to direct rectification is necessarily anterior to the giving of a direction for rectification.
[4] [2013] QSC 057 at [18].
An application to review a reviewable decision must be made by filing it in the registry within 28 days after the relevant day.[5] Here the relevant day is the day the applicant was notified of the decision.[6]
[5] QCAT Act s 33(3).
[6] QCAT Act s 33(4)(a).
The Commission’s decision was made on 10 March and was probably received by the applicant on 12 or 13 March 2015. The time for applying for review therefore expired on or about 10 April 2015.
The application, supporting documentation and cheque were received by QCAT on 10 April but not processed because the application incorrectly named the homeowner rather than the QBCC as the respondent/decision-maker. The application, supporting documentation and cheque were returned to the applicant under cover of a letter dated 16 April 2015.
Application to review of 10 April 2015
The applicant made three attempts to file an application to review:
a) on 10 April 2015 but with the incorrect party as respondent;
b) by email on 13 April 2015; and
c) on 29 May 2015.
The first is the only application made within the time limit.[7] The second was made outside the time limit but while the decision was still reviewable, while the third was made well outside time and once the decision was no longer reviewable.[8] It is appropriate to consider the validity of each application.
[7] QCAT Act s 33 (3).
[8] QBCC Act s 86F.
When is an application made
Section 33 of the QCAT Act sets out the requirements for making an application. Although the application need only be in a form substantially complying with the rules it must be “filed” in the registry.[9] The principal registrar may refuse to file a document if it does not comply with the QCAT rules or can not otherwise be filed.[10]
[9] QCAT Act s 33(2).
[10] QCAT Rules r 32(1).
A document is filed when the principal registrar records the document and stamps the tribunal’s seal on it.[11]
[11] QCAT Rules r 31.
In Smith v Queensland Building Services Authority[12] it was held that an application was not filed for the purposes of s 33 if the tribunal seal was not stamped on the document. However the Tribunal was prepared to exercise its power under s 61 (1)(c) of the QCAT Act to waive this procedural requirement in circumstances where, although the application had been lodged and accepted, the filing fee had not been paid.
[12] [2010] QCAT 448 at [13].
Here the application was not recorded or stamped. It was therefore not filed in accordance with Rule 31. However, the issue arises as to whether the application was nonetheless accepted.
In contrast to Smith, where the application though not filed was kept on the file and held to have been “accepted”, here the application was returned to the applicant. It follows, in these circumstances, that the application was rejected.
The issue arises as to whether the Registry was entitled to reject the application and, if it was not, whether the Tribunal can correct this error by deeming the application to have been accepted when it was first submitted.
When can the Registry reject an application
Section 35 of the QCAT Act provides that where an application is made, the principal registrar can either:
a) accept it
b) accept it on conditions
c) reject it on one of the grounds in s 35 (3); or
d) refer it to the Tribunal if the principal registrar believes there is a ground for rejecting it under s 35 (3).
Rule 18 provides that for s 35 the principal registrar may accept an application on the condition it is amended to include stated information required to be included in the application and the amended application is filed within a stated time.
The only grounds for rejecting an application are those set out in s 35 (3). Rule 32 deals with the situation when the principal registrar may refuse to file a document.[13] This is different to a decision by the Registry not to accept an application.
[13]Rule 32(1) provides that the principal registrar may refuse to file a document if it does not comply with the rules or can not otherwise be filed.
The grounds for rejecting an application are:
a) The application is made by a person who is not authorised to make it;
b) The application is made after the expiry of the period within which it must be made under the QCAT Act;
c) The application does not otherwise comply with this Act, an enabling Act or the rules.[14]
[14] QCAT Act s 35(3).
The issue is whether the application complied with the QCAT Act or Rules and with the QBCC Act. This depends upon whether there is a requirement in either Act or the QCAT Rules to correctly name the respondent or decision-maker. Section 33 (2) of the QCAT Act requires that the application be in a form substantially complying with the rules; state the reasons for the application; and be filed in the registry. Section 33 (2) in so far as it applies to “filing” is not relevant to “acceptance”, because it comes after it.
Rule 7 requires that the application be in the approved form.
There is no requirement that the decision-maker be correctly named.
The form, although it had the wrong person as decision-maker, was in the approved form and substantially complied with the rules. It was not filed but for the reason it named the wrong person as respondent. This does not, in my opinion, make the application non-compliant with the Act or rules in the manner contemplated by s 35 and is a circular argument.
The principal registrar was therefore not entitled to reject the application. It should have accepted the application on condition that the applicant file an amended application within a certain time.
There is a procedure set out in s 35 (4) – (8) for the referral of a review of a decision to reject or conditionally accept an application to be made to the Tribunal.[15] Under that procedure if an application is rejected or accepted on conditions, the applicant is to be notified of its right to request the principal registrar to refer the issue to the Tribunal.[16] This procedure was not engaged.
What is the extent of the power of the Tribunal to treat an application as accepted where it was rejected by the Registry
[15] QCAT Act s 35(4) – (8).
[16] QCAT Act s 35(4).
The issue arises as to whether, in circumstances where an application was improperly rejected by the Registry, the Tribunal can treat the application as having been accepted.
It is an established principle that a party will not be allowed to suffer for the default of an officer of the court.[17]
[17]Nazer v Wade (1861) 1 B & S 728; 121 ER 885; Evans v Jones (1862) 2 B & S 45; 121 ER 991.
In Gower v Woodman Sales Pty Ltd[18] the Supreme Court of Queensland adopted that principle and held where a writ was not issued on a particular date due to the fault of an officer of the court, that the court had the power to order the filing date be amended nunc pro tunc. That means to date it on the date when it should have been done.[19]
[18] [1988] 2 QdR 15
[19] Vignes v Clarke [1990] 2 QdR 593 at 594.
In Gower a writ which was in the proper form was not filed on the last day before the limitation period expired because an insufficient filing fee was tendered. The incorrect two stage process followed by the relevant Registry was found to be the reason for the delay in filing. The solicitor responsible for filing the writ had left it with the Registry and was not told until the following day that the fee tendered was insufficient. Either the writ should have been accepted and the underpayment treated as an irregularity or the solicitor should have been advised at the time that the fee was insufficient. The delay in issuing the writ was accordingly held to be the fault of the court officer and not the solicitor.
The court held:
I think that the principle involved in the observations in the last three cases should be adopted and that the court can and should direct nunc pro tunc an alteration and amendment of the date of filing and issue accordingly. The court has power to allow amendment under O.32 r.1 and it must have power over its own officers and procedures. To take an extreme case by way of example as persuasive that the power must surely exist and may be exercised it may be imagined that a solicitor attends within proper hours on the afternoon of one particular day, tenders his writ and copies properly made out and the full amount of the appropriate fee and the court officer in attendance in dereliction of his duty either refuses to accept the documents or having accepted them refuses then to issue the writ. It cannot be supposed that in such a case the court would lack the power to order, subsequently, that what should have been done be taken as done since otherwise a plaintiff’s whole action might be defeated.[20]
[20] [1988] 2 QdR 15 at 22.
In Vignes v Clarke[21] the principle was expressed as follows:
The principle simply is that if an officer fails to do what should be done on a given day, then the court will tell him to do it as of that day.[22]
[21] [1990] 2 QdR 593
[22] Ibid at 594-595.
It follows that the Tribunal must have power to order that an application which should have been accepted on a particular date is deemed to have been accepted on that date.
The application was not accepted due to the incorrect name of the decision-maker. This was not a valid reason to reject the application. The application was in this instance a document which initiated proceedings and should, notwithstanding such a defect, have been accepted. Any such defects in the completion of the form could have been resolved by the Tribunal at a later time.
The application was therefore made on 10 April 2015. The name of the respondent can be corrected by the Tribunal.[23]
[23] QCAT Act s 62 (1).
Given this decision, the argument that the decision was not reviewable within the meaning of s 86F of the QBCC Act falls away.
Under s 86F of the QBCC Act a decision to give a direction to rectify is not reviewable if:
a) 28 days have elapsed from the date the direction was served on a person; and
b) the person has not, within that time, applied to the tribunal for a review of the decision; and
c) the commission has served an infringement notice in relation to the direction.[24]
[24] QBCC Act s 86F(1)(b).
The relevant direction to rectify was the second one, issued on 30 March. Accordingly, that decision became not reviewable once 28 days had elapsed from the date the direction was served and an infringement notice had been served.
On this basis the decision became not reviewable on or about 30 April 2015.
Here, because it has been determined that the application to review was accepted on 10 April, s 86F does not apply.
Application to review of 13 April 2015
Alternatively, if the decision to treat the application as having been made on 10 April is not correct, the issue arises as to whether the application was made when the amended application was emailed to the Registry on 13 April.
Rule 24 provides that an application in a proceeding other than for a minor civil dispute may be filed:
a) in person;
b) by post;
c) by fax; or
d) for an application for which a fee is not payable – by email.
Here, because the fee had already been tendered, it was not payable and the application was able to be filed by email.
It appears the Tribunal did not accept the emailed application. This is evident from correspondence from QCAT to the QBCC on 2 July 2015 which states:
I advise that the application to review a decision initially received on 10 April 2015 was incomplete and therefore sent back to the applicant. The application to review a decision was subsequently filed on 29 May 2015.
The emailed application named the correct respondent. The fee had already been tendered on 10 April. The Registry however did not accept the application because it was emailed. It did not however inform the applicant that their further amended application had been rejected.
In these circumstances and in view of the principles regarding the acceptance of originating summons discussed above, it is the Tribunal’s view that the application should have been accepted on 13 April 2015 or at least its rejection notified to the applicant, providing it with an opportunity to submit a further application in hard copy. The fact it was late by one day is not necessarily fatal. Section 61 gives the Tribunal power to extend time, even after the time for complying with the relevant requirement has passed.[25]
[25] QCAT Act s 61(2).
The Tribunal finds that the application should be regarded as having been accepted on 13 April 2015. For reasons discussed above, the Commission’s decision was, at that date, reviewable. In circumstances where it has been determined that the application should have been accepted, the fact it was not stamped is not fatal. The omission to stamp the application is in this context a procedural requirement which can be cured by s 61(1)(c) of the QCAT Act.[26]
[26] Smith v Queensland Building Services Authority [2010] QCAT 448 at [19].
As the Tribunal has determined that the application should be regarded as having been made on 10 April 2015, or, alternatively on 13 April 2015 and that in each case the relevant decision was still reviewable within the meaning of the enabling Act, it is not necessary to consider the issue of whether to grant an extension of time.
Having said that, in view of the course the matter has taken, it is appropriate to consider the position had the application been taken to have been filed on 29 May 2015.
Application to review of 29 May 2015
The application made on 29 May was ineffective, having been made more than 28 days after the direction was served and after an infringement notice was served.[27] Although the applicant applied for an extension of time on 16 June 2015 the decision by then was not reviewable.
[27] QBCC Act s 86F(1)(b).
The issue arises as to whether s 61 of the QCAT Act can be used to extend the time limit in s 86 F of the QBCC Act. It is settled that the power in s 61 (1)(b) to extend a time limit under an enabling Act can not be used to extend time under s 86F of the QBCC Act being a mandatory substantive rule of law which defines and limits the jurisdiction of the Tribunal.[28]
[28] Queensland Building and Construction Commission v Watkins [2014] QCA 172 at [16].
The application of 29 May is accordingly of no effect and the relevant time limit in s 86 F of the QBCC Act can not be extended.
Conclusion
The application to review was made on 10 April 2015 or, alternatively on 13 April 2015. This was at a time when the Commission’s decision was reviewable, having been made 28 days from the date the direction to rectify was served.
The application to review was therefore made within time and the application to extend time is therefore dismissed.
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