Watkins v Queensland Building Services Authority
[2013] QCAT 535
| CITATION: | Watkins v Queensland Building Services Authority [2013] QCAT 535 |
| PARTIES: | Mr Russell Ian Watkins (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR265-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 3 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for extension of time is dismissed. 2. The application for review is dismissed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW MATTERS – Queensland Building Services Authority – application to review decision – decision to approve insurance claim – application to extend time for review – application to dismiss for want of jurisdiction – whether section 61 discretion available – whether discretion to extend time excluded by enabling Act – whether section 86(2) of enabling Act substantive or merely procedural Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 7, 32, 61, 86 Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238 Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 |
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 (QCAT Act).
REASONS FOR DECISION
On 4 August 2008 the Applicant, the holder of a builder’s licence under the Queensland Building Services Authority Act 1991 (QBSAA), was engaged by a Ms Ralph to perform residential building work (“the work”) on premises at Ormiston, Brisbane.
In consequence of that contract there arose a statutory policy of insurance in favour of the building owner, pursuant to Part 5 of the QBSAA.
On or about 22 July 2009 Ms Ralph complained to the Respondent (“the Authority”) that the work was defective or incomplete.[1]
[1] QBSAA s 71A.
Subsequently the Authority approved Ms Ralph’s statutory insurance claim.[2]
[2] QBSAA s 70.
On 25 January 2010 the Authority sent a Notice of Debt to the Applicant, informing him that an insurance claim pertaining to the work had been approved, and that the cost of rectification would be $153,917.95.
By letter dated 10 November 2010 the Authority demanded payment by the Applicant of $153,917.95.[3]
[3] QBSSA s 71.
Subsequently the Authority sued the Applicant for debt in the District Court at Brisbane, and on 15 August 2013 it sought summary judgment. As appears below, that application stands adjourned.
On 8 August 2013 the Applicant commenced these proceedings in the Tribunal, seeking a review of the Authority’s decision to approve the insurance claim. On the same day he sought an extension of time to commence the substantive application.
The Tribunal’s jurisdiction is derived from various “enabling Acts”[4], of which the QBSAA is one. An enabling Act may vary or exclude provisions of the QCAT Act relating to, inter alia, the period within which an application to the Tribunal must be made.[5] Any such provision,[6] or one mentioned in subsection 6(7),[7] prevails over inconsistent provisions of the QCAT Act, and that Act must be read accordingly.[8]
[4] As defined in s 6(2)(a) of the QCAT Act.
[5] QCAT Act s 6(7).
[6] Described as a “modifying provision”: QCAT Act s 7(1).
[7] See note 5 and text.
[8] QCAT Act ss 7(2), 7(3).
Subsection 86(1) of the QBSAA provides that the Tribunal may review decisions of the Authority in eighteen types of case, none of which is expressly described as a decision to approve an insurance claim. However, the list does include decisions to order rectification, decisions that work is sub-standard, and decisions about the scope of works to be rectified.[9] I consider that the application for review should be read beneficially, so as to refer to at least two of those categories. A decision that work is sub-standard leads to approval of an insurance claim, and while the Applicant concentrates on the insurance approval,[10] he also disputes the scope of the works undertaken.[11]
[9]QBSAA s 86(1)(e), (f), (g).
[10]Application for review Part C (why decision is wrong) and (describe that you want to happen).
[11]Application for review Part C (any other facts you think are important).
But there are important jurisdictional limitations. Subsection 86(2) of the QBSAA lists several classes of decisions that the Tribunal “must not review”, including (i) decisions to recover an amount under section 70, (ii) orders to rectify or complete (if 28 days have elapsed since service of the direction and notice of approval of an insurance claim, absent a review application in the meantime) and (iii) a decision about the scope of works covered by an insurance approval (if 28 days have elapsed since service, without an intervening application for review).[12] Subsection 86(2)(a)[13] is absolute. The evident purpose of subsection 86(2) is to achieve early finality of the decisions to which it applies.[14]
[12]QBSAA ss 86(2)(a), (b)(i)(B), (c).
[13]Decision to recover an amount from the licensee.
[14]Cf the comment on a similar provision in Part 5.4 of the corporations code in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited (2008) 232 CLR 314 at 323.
Here the application for review was filed more than three years after the subject decision was made. Obviously it must fail unless the Tribunal allows an extraordinarily long extension of time – assuming, without conceding, that it has power to do so.
For that purpose, the Applicant relies on section 61 of the QCAT Act, which provides:
Relief from procedural requirements. The Tribunal may ... (b) extend ... a time limit fixed by this Act, and enabling Act, or the rules.
In its decision to adjourn the Authority’s summary judgment application on 5 September 2013 the District Court took the view that section 61 enables the Tribunal to extend the time limits in section 86(2) of the QBSAA, although “this is not an area where a clear-cut distinction ... is obvious.”[15] At the same time the Court acknowledged that the long-delayed request for an extension would “almost inevitably” be refused.[16]
[15]Queensland Building Services Authority v Watkins [2013] QDC 198 at [21].
[16]Queensland Building Services Authority v Watkins [2013] QDC 198 at [24].
With due respect, I decline to follow that interlocutory decision.[17] If I am wrong, I may be put right in a higher place. In Queensland Building Services Authority v Robuild Pty Ltd[18], I expressed an obiter view[19] that section 61 of the QCAT Act is not a solvent for the exclusions of jurisdiction in section 86 of the QBSAA, because –
The prohibition in section 86(2) defines and limits the jurisdiction of the Tribunal ... It is not merely a procedural rule that may be relaxed under section 61 of the QCAT Act. It is a mandatory, substantive rule of law,[20] and a condition of jurisdiction.[21]
[17]For a different view in the District Court see Manwin v Queensland Building Services Authority [2007] QDC 298 at [16].
[18]As yet unreported, APL226-13, 23 August 2013 at [11].
[19]It was strictly unnecessary to decide the present point in Robuild, as in that case the Authority’s notice was not properly served.
[20]Ken Harrison Homes v Queensland Building Services Authority [2007] CCTTB 61 at [18]; Smith v Queensland Building Services Authority [2010] QCAT 448 at [30]; Manwin v Queensland Building Services Authority [2007] QDC 298 at [16]; and compare Sendall v Howe and Anor [2012] QCATA 41 at [10].
[21]Cameron v Cole (1944) 68 CLR 571 at 584 per Latham CJ.
I note that at least two senior members of the Tribunal have delivered conclusive judgments to the same effect.[22] The Applicant relies upon Gallagher v Queensland Building Services Authority[23], but it hardly assists his case. There the application for review was dismissed, although the challenger did not face the strict time limits that confront the present application.[24]
[22]Mundy v Queensland Building Services Authority [2012] QCAT 15; Cornpig Pty Ltd v QBSA [2011] QCAT 255; Customizer Kitchens QLD v QBSA [2011] QCAT 13.
[23][2010] QCAT 383. See also Smith v Queensland Building Services Authority [2010] QCAT 448 at [3]; Ken Harrison Homes v Queensland Building Services Authority [2007] CCTTB 61 at [18]; Manwin v Queensland Building Services Authority [2007] QDC 298 at [16].
[24]Gallagher had been categorised as an “excluded individual”.
With respect, we are not bound by decisions of the District Court, particularly when a different view[25] on the same point has been expressed in that Court. The District Court is not in the line of authority that governs the Tribunal. Decisions of the Tribunal at first instance (excepting any made by a judicial member) are subject to an internal appeal, and thereafter to the Court of Appeal and the High Court. Besides, it is arguable, at least, that interlocutory decisions do not give rise to binding authority.[26] In any event the duty to do justice according to law warrants a departure if higher authority so requires[27], as in this case I consider it does.
[25]See Manwin v Queensland Building Services Authority [2007] QDC 298 at [16].
[26]Boys v Chaplin [1968] 2 QB 1; Pett v Greyhound Racing Association (No 2) [1970] 1 QB 46.
[27]Tillman v Attorney General for the State of New South Wales (2007) 70 NSWLR 448 at [32].
The guiding principle, as I see it, is to be found in the judgment of Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[28]:
When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised, and the conditions and restrictions which must be observed [in so doing], it excludes the operation of general expressions ... which might otherwise have been relied on for the same power.
[28](1932) 47 CLR 1 at 7.
In that case their Honours were referring to “general expressions” in the very Act conferring the power in question. Their observations apply a fortiori, I suggest, when the “general expression” relied on for a dispensation appears in a different Act, where it is clearly labelled procedural.
In my view section 61 of the QCAT Act may no more be used to escape the imperative “must not” in section 86(2) of the QBSAA than it may be used to bypass the mandatory exceptions to the general grant of jurisdiction in section 103 of the Retail Shop Leases Act 1994.[29] In each case the negative provision is substantive, and defines the limits of jurisdiction. It is no mere procedure, subject to discretionary liberalisation.
[29]“QCAT has jurisdiction to hear retail tenancy dispute, other than a retail tenancy dispute ... about ... arrears of rent under a retail shop lease ...” (etc): Retail Shop Leases Act 1994 s 103(1)(b)(i).
Hope & Anor v Brisbane City Council[30] turned on the following provision in section 65 of the Land Court Act 2000:
A party intending to appeal against a decision of the Land Court must[31] within 42 days after the order ... is made ... serve notice of the appeal upon all other parties ... and the Registrar of the Land Appeal Court.
[30][2013] QCA 198.
[31]Emphasis added.
The appellant challenged the Land Court’s decision that late service of the notice of appeal was fatal. The Court of Appeal (Jackson J, Muir and Gotterson JJA agreeing) held that:
... the Land Court correctly characterised the question as whether the requirements of service ... within time was a condition of the essence of the right of appeal or procedural, going only to the mode of enforcement of that right.
The Land Court’s view was as follows:
The mandatory language used in s 65, together with its proximity to s 64 which creates the right of appeal, lead us to conclude that it is a condition of the institution of an appeal that there be compliance with s 65. A failure to do so means that there is no valid appeal.[32]
[32]Quoted in [2013] QCA 198 at [11].
The Court of Appeal unanimously endorsed that opinion. The bar was absolute, not conditional.[33] The same principle was applied in David Grant & Co Pty Ltd v Westpac Banking Corporation & Ors[34] to deny the appellant a waiver of “procedural irregularities”. Gummow J observed:
As a general precept, it is inappropriate to read provisions which confer jurisdiction ... by the making of implications or impositions not found in the express words of the legislative provision.[35]
[33] Contrast the removeable procedural bar in Australian Iron and Steel Ltd v Hoogland
(1962) 108 CLR 471.
[34] (1995) 184 CLR 265.
[35] (1995) 184 CLR 265 at 275-276.
The present question is not to be resolved by reference to authorities on extension of time limits in general statutes of limitation.[36] Those limits are clearly procedural.[37] If an opponent does not take the point, “the matter of the statutory bar does not arise for the consideration of the court”.[38] It is then quite unnecessary to seek an extension of time. General limitation Acts bar access to curial remedies; they do not extinguish causes of action. Unlike subsection 86(2) of the QBSAA they “affect procedure, not substance”.[39] That is why, absent a plea in bar, a claim that is potentially caught by the Limitation of Actions Act 1974 may simply proceed without let, hindrance, or extension. That is why an acknowledgement of debt or a part payment[40] restores the right to sue for a debt otherwise “stale”.
[36] E.g. the Limitation of Actions Act 1974.
[37] Mills v Fowkes (1839) 5 Bing (NS) 455; 132 ER 1174.
[38] Commonwealth of Australia v Mewett (1997) 91 CLR 471 at 534 per Gummow and
Kirby JJ; Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 473-474.
[39] Pedersen v Young (1964) 110 CLR 162 at 166 per Kitto J.
[40] Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233; Bank of China Ltd v CGS (Group)
Pty Ltd [2009] NSWSC 397 at [29]; Limitation of Actions Act 1974 s 35.
For these reasons I am bound to find that Mr Watkins’ application for review is incurably out of time, and that QCAT has no jurisdiction to entertain it. The Authority’s application to strike out his substantive and procedural applications succeeds. There will be orders accordingly.
It follows that I need not discuss the issues that would have arisen if section 61 of the QCAT Act applied.[41] I merely observe that the delay is so long as to call for a cogent explanation, and there is uncontradicted evidence that the Applicant was told of the availability of review as long ago as November 2011.[42] The Applicant seeks to dispute the “scope” of the subject agreement. While it might glibly be said that an extension (if lawful) would not prejudice the Authority, the task of re-assembling, years later, the evidence of the building owner, and of its inspectors and the remedial contractors is likely to be considerable. However, those considerations need not be further pursued.
[41] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
[42] Affidavit of Claude Paul, sworn on 12 July 2013 and filed in the District Court
proceedings, paragraph 15. Mr Paul’s offer of an extension was legally unsound, and could not create an estoppel contrary to the statute: Roma Electric Light & Power Co Ltd v Hair [1955] St R Qd 311; Re Jauncey [1980] Qd R 335; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18.
ORDERS:
1. The application for extension of time is dismissed.
2. The application for review is dismissed.
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