All Systems Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 65

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: All Systems Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 65 PARTIES: ALL SYSTEMS PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR758-23 MATTER TYPE: General administrative review matters DELIVERED ON: 2 February 2024 HEARING DATE: 31 January 2024 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application for leave to file a new application to review pursuant to s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is refused. The application to extend time filed on 25 October 2023 is dismissed. The application to review the decision to issue a direction to rectify dated 12 July 2021 filed on 25 October 2023 is dismissed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW MATTERS – where application to review decision to issue direction to rectify made within time – where application to review subsequently withdrawn – where applications to review subsequent decisions about the scope of works made within time – where applicant seeks leave to make a further application to review the same decision to issue direction to rectify – where application out of time – whether leave should be given pursuant to s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – if leave granted, whether application to extend time should be granted Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86F -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46, s 61 Budget Pools Qld v Queensland Building and Construction Commission [2022] QCAT 216 Jensen v Queensland Building and Construction Commission [2019] QCATA 11 APPEARANCES & REPRESENTATION: 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 [1] The application before me is an application for leave pursuant to s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to make a further application for review, in circumstances where an application to review the same reviewable decision was previously withdrawn. Background [2] On 12 July 2021 the Queensland Building and Construction Commission issued a direction to rectify to All Systems Pty Ltd (the applicant) in respect of roofing work it did at the owners property (DTR decision). [3] On 9 August 2021 the applicant filed an application to review that decision. [4] On 2 December 2021 the Commission made a scope of works decision in relation to the direction to rectify. [5] In May 2022 the applicant withdrew its application to review the direction to rectify. [6] On 15 September 2022 the Commission made a variation to the scope of works (first SOW variation decision). On 13 October 2022 the applicant applied to review that decision in the Tribunal (GAR420-22). [7] On 4 July 2023 the Commission made a second variation to the scope of works decision (second SOW variation decision). On 11 July 2023 the applicant applied to review that decision in the Tribunal (GAR478-23). [8] On 25 October 2023 the applicant filed a further application seeking to review the DTR decision of 12 July 2021. An Annexure to the application sought an order pursuant to s 46(3) of the QCAT Act that the applicant have leave to apply to review the Commission’s DTR decision of 12 July 2021. Further, if leave was granted, the applicant sought orders that, pursuant to s 61 of the QCTA Act, that leave to file the application to review be extended; and, that, pursuant to s 55(1)(a) of the QCAT Act, the further review application be heard and decided together with related proceedings GAR420-22 and GAR478-23. [9] The Commission objected to the application for leave to file a further application and to the application to extend time.1 1 Submissions of the Commission filed on 25 January 2024. -- 2 of 4 -- 3 Application for leave pursuant to s 46(3) of the QCAT Act [10] Section 46 of the QCAT Act provides: 46 WITHDRAWAL OF APPLICATION OR REFERRAL (1) An applicant may, in the way stated in the rules, withdraw the applicant’s application or referral for a matter before the matter is heard and decided by the tribunal. (2) … (3) If an applicant withdraws an application or referral, the applicant can not make a further application or referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the tribunal. [11] Section 46(3) of the QCAT provides a specific bar to a further application relating to the same facts or circumstances without leave of the Tribunal. The Appeal Tribunal in Jensen v Queensland Building and Construction Commission2 observed in relation to the requirement for leave in such circumstances: That might be a reflection of the nature of the QCAT jurisdiction, including the desirability of certainty and finality in relation to decisions impacting public bodies, the strict time limits for bringing applications and the object of having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. On that basis, it would seem that considerations such as the merits of the application, the reasons for the initial withdrawal, the reasons for bringing the fresh application, the lapse of time and the issue of prejudice are relevant to the exercise of what appears to be a broad discretion as to whether to grant leave. Those considerations are not altogether dissimilar to the factors to be considered in exercising the discretion to grant an extension of time: whether there has been a reasonable explanation for the delay, the strength of the applicant’s case, prejudice to adverse parties, the length of the delay, and, overall, whether it is in the interests of justice to grant an extension.3 [12] Section 86F of the QBCC Act provides, relevantly: 86F DECISIONS THAT ARE NOT REVIEWABLE DECISIONS (1) The following decisions of the commission under this Act are not reviewable decisions under this subdivision— (a) … (b) a decision to give a person a direction to rectify or remedy, and any finding by the commission in arriving at the decision if— (i) 28 days have elapsed from the date the direction was served on a person and the person has not, within that time, applied to the tribunal for a review of the decision; and (ii) the commission has— 2 [2019] QCATA 11. 3 Ibid at [12]-[13]. -- 3 of 4 -- 4 (A) started a disciplinary proceeding against the person under part 6A; or (B) served a notice on the person advising a claim under the statutory insurance scheme has been approved in relation to the building work relevant to the direction; or (C) started a prosecution, or served an infringement notice, for an offence against section 73 in relation to the direction; [13] It has been held that s 86F(1)(c) is not merely procedural but rather a “mandatory substantive rule of law, and a condition of jurisdiction”.4 Accordingly, if the applicant did not apply for review within 28 days of being served with notice of the direction to rectify decision, the Tribunal has no power extend the 28-day time limit and no jurisdiction to hear and decide the application for review. [14] In this case, the decision to give a direction to rectify was made at the latest on 12 July 2021; 28 days have elapsed from the date the direction was served on the applicant; and a claim under the statutory insurance scheme in relation to the defective work the subject of the direction to rectify has been approved.5 [15] The applicant submitted that s 86F does not operate to prohibit the Tribunal from making the order to extend time under s 61 because, strictly, the applicant made an application for review of the decision within 28 days and the wording of the section does not state that subsequent review applications must also be made within 28 days. [16] I do not accept that submission. In my view, the effect of the withdrawal is that there is no application to review. For s 86F to impose what is effectively a limitation period, the provision must be interpreted to refer to a current application to review, as opposed to one that no longer exists. It undermines the purpose of the provision to interpret it so that as long as an application was made within 28 days, albeit withdrawn, any further application to review whenever made is reviewable and not subject to the 86F constraints. [17] For the reasons above, I refuse leave to make a further application to review. It follows that the application to review a decision filed on 25 October 2023 and the application to extend time filed on 25 October 2023 are dismissed. 4 Budget Pools Qld v Queensland Building and Construction Commission [2022] QCAT 216 at [9] citing Queensland Building and Construction Commission v Crocker [2018] QCATA 194. 5 Submissions of the Commission dated 5 July 2023 (GAR420-22) at [33]. -- 4 of 4 --