CQ Sheds & Concrete Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 487

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CQ Sheds & Concrete Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 487 PARTIES: CQ SHEDS & CONCRETE PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR571-23 MATTER TYPE: General administrative review matters DELIVERED ON: 14 December 2023 HEARING DATE: 12 December 2023 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application to review a decision is deemed to have been filed on 10 August 2023. The application to extend time filed by the applicant on 15 September 2023 is dismissed on the basis it is unnecessary given that the application for review is deemed to have been made within time. The parties each have leave to be legally represented in the proceedings. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW MATTERS – where applicant lodged application to review at the Magistrates Court at Rockhampton within time – where application to review not stamped by the registry – where application date stamped seven days later by QCAT Registry in Brisbane – whether application to review filed within time – whether extension of time to file application to review can be granted under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in view of s 86F of the Queensland Building and Construction Commission Act 1991 (Qld) – whether s 61 of the QCAT Act can cure failure of registry to stamp the application to review. Queensland Building and Construction Commission Act 1991 (Qld), s 86F, s 87 -- 1 of 6 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(4), s 17, s 33, s 61(1)(c) Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 31 Bowie v Gela [2023] QCATA 129 Gower v Woodman Sales Pty Ltd [1988] 2 QdR 15 Smith v Queensland Building Services Authority [2010] QCAT 448 Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435 Vignes v Clarke [1990] 2 QdR 593 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] On 13 November 2023 the applicant, CQ Sheds & Concrete Pty Ltd was directed to file an application to extend time on the basis that the application to review a decision appeared, on its face, to have been filed out of time. [2] On 19 September 2023 the applicant filed an extension of time and an application for leave to be legally represented in the proceedings. This decision concerns those applications. Background [3] The applicant seeks to review an internal review decision about the scope of works made by the Queensland Building and Construction Commission (QBCC) on 14 July 2023. [4] On 8 August 2023 the applicant signed the application to review and application for leave to be represented at the premises of its solicitor. [5] On 10 August 2023 (within time) the applicant’s solicitor lodged the application to review and application for leave to be represented at the Rockhampton Magistrate’s Court Registry. The application for leave to be represented was date stamped 10 August 2023. However, the application to review was not date stamped. Both applications were emailed by the applicant’s solicitor to the QBCC on that date. [6] On 17 August 2023 the application to review and application for leave to be represented were received by the Queensland Civil and Administrative Tribunal (QCAT) registry in Brisbane and date stamped 17 August 2023. [7] On 28 August 2023 the applicant’s solicitors received stamped copies of the application to review and application for leave to be represented which were subsequently served on the QBCC on 31 August 2023. [8] On 12 September 2023 the Tribunal made directions for the applicant to file an application for an extension of time to file the application to review a decision and any accompanying submissions and for the QBCC to file submissions in response. -- 2 of 6 -- 3 [9] The directions were made in the context of the Tribunal having before it an application to review a decision about the scope of works that the applicant claims it received on 17 July 2023. The application to review was date stamped by QCAT Brisbane on 17 August 2023 but also had a registry stamp as follows: [10] It appears the ‘Rockhampton’ stamp was applied by the registry in Brisbane and purported to record that the application was received in Rockhampton and then transferred to Brisbane. [11] The application for leave to be represented (which was lodged on the same day in Rockhampton) has the following stamps: Applicant’s submissions [12] The applicant submitted that it had 28 days from the date of receiving the decision to have it externally reviewed and that therefore, it had until 11 August 2023 to ‘lodge’ the application to review. [13] The applicant says it ‘lodged’ the application on 10 August 2023 in the local Magistrates Court and that they were processed and stamped in the QCAT Brisbane registry on 17 August 2023. The applicant submitted: For context thereafter, the practice of the Rockhampton Registry is to seal the documents in an envelope in front of the filer …and post the documents to QCAT in Brisbane. Only once the documents are received and payment processed by the Brisbane Registry, are the documents considered ‘filed’ and subsequently dated. -- 3 of 6 -- 4 [14] The applicant submitted that, but for driving eight hours from Rockhampton to Brisbane to physically file the document itself on or before 11 August 2023, it has done everything reasonably possible to comply with the 28 day time period and should not be punished or forfeit its right to an external review by virtue of geographical locality and or procedure adopted by the region’s Magistrate’s Court Registry. [15] Accordingly, the applicant submitted, an extension of time for ‘filing’ the application to review should be granted. Commission’s submissions [16] The Commission opposes the application to extend time, principally on the basis the application was filed on 17 August 2023 which was outside the time permitted and that, due to s 86F of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) that time could not be extended. [17] The Commission submitted that s 86F(c) provides that a decision about a scope of works is not reviewable if 28 days have elapsed since the decision was served on the building contractor. The Commission submitted that, applying s 38(1)(b) of the Acts Interpretation Act 1954 (Qld), excluding the 17 July 2023 (the day of the applicant’s contended day of service), the 28th day after the event was 14 August 2023. Consequently, the last day on which the ‘purpose’ of filing an application to review could be fulfilled was 14 August 2023. For completeness, it is noted that the Commission submitted the date of service on the applicant to be 14 July 2023, when the applicant’s solicitor was emailed the scope of works decision. [18] The Commission submitted that, as the application was filed on 17 August 2023, it was filed out of time and, applying s 86F of the QBCC Act and the principles expressed in Watkins1 and Eco Builder,2 the Tribunal was without jurisdiction to extend time and the application to extend time must be dismissed. Consideration [19] The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made by another entity under that Act.3 [20] Section 87 of the QBCC Act provides that a person affected by a reviewable decision of the Commission may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to the Tribunal for a review of the decision. [21] Pursuant to s 33(3) of the QCAT Act, an application to review a reviewable decision must be made by filing it in the registry within 28 days after the relevant day. [22] Here, the relevant date is the day the applicant was notified of the decision.4 For the purposes of this application, I have taken this date to be 17 July 2023. [23] On that basis, the time for applying for review therefore expired on 14 August 2023. The last day an application to review a decision could be filed, was therefore on 14 August 2023. 1 Queensland Building and Construction Commission v Watkins [2014] QCA 172. 2 Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59. 3 QCAT Act, s 17(1). 4 QCAT Act, s 33(4)(a). -- 4 of 6 -- 5 [24] The issue arises as to when the application to review was filed. [25] Rule 31 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules) provides that a document is filed when the Principal Registrar records the document and stamps the Tribunal’s seal on it. [26] In Smith v Queensland Building Services Authority,5 followed in Sunup Solar Pty Ltd v Queensland Building and Construction Commission,6 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. [27] Here the application was not stamped by the Rockhampton Magistrates Court Registry, as it should have been. However, the application for leave to be represented, which was lodged at the same time, was. There is no sensible reason why one application would be stamped, and not the other. It appears that this was merely an oversight by the registry. [28] The issue arises as to whether this is fatal to the applicant’s right to review, or whether the omission to stamp the application can be cured by the application of s 61(1)(c) of the QCAT Act. [29] In Sunup, I found that it is an established principle that a party will not be allowed to suffer for the default of an officer of the court.7 I referred, in this context, to Gower v Woodman Sales Pty Ltd8 where the Supreme Court of Queensland adopted the principle and held that where a writ was not issued on a particular date due to the fault of an officer, that the court had the power to order the filing date be amended nunc pro tunc. Here, that would mean the application to review would be dated the date it was received in the Rockhampton Magistrates Court registry, that is, on 10 August 2023. [30] The Tribunal has the power under s 61(1)(c) of the QCAT Act to cure a failure to comply with a procedural requirement in the Rules. An omission to stamp an application in these circumstances is a failure to comply with a procedural requirement in the Rules. Such an omission may, in my view, be waived. [31] Further, this approach to the application of s 61 is consistent with the objectives of the QCAT Act, which is to deal with matters in a way that is fair and just.9 It would not be fair and just, in my view, to deprive the applicant of its right to external review due to an error of the registry in omitting to stamp the application when it was accepted. [32] That being so, the argument that the decision was not reviewable within the meaning of s 86F of the QBCC Act falls away. Section 86F(c) of the QBCC Act provides that a decision about a scope of works is not reviewable if 28 days have elapsed since the 5 [2010] QCAT 448. 6 [2015] QCAT 435. 7 Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435 at [38], citing and relying upon Nazer v Wade (1861) 1 B & S 728; 121 ER 885 and Evans v Jones (1862) 2 B & S 45; 121 ER 991. 8 [1988] 2 QdR 15. See also Vignes v Clarke [1990] 2 QdR 593. 9 QCAT Act, s 3(b). -- 5 of 6 -- 6 decision was served on the building contractor. Here, because it has been determined that the application to review was filed on 10 August 2023, s 86F does not apply. [33] It follows, that the application to review was filed on 10 August 2023, the date of presentation in the Rockhampton Magistrates Court Registry. Accordingly, the application to review was filed within time and the application to extend time is therefore dismissed. [34] I note the recent decision of the Tribunal in Bowie v Gela.10 There, the learned Member followed a similar line of reasoning to my decision in Sunup, but ultimately concluded the Tribunal could not use s 61 of the QCAT Act to extend a time limit in respect of time limits under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). In my respectful opinion in Bowie, as here, it was unnecessary to extend time under s 61. Rather, s 61(1)(c), permits the Tribunal to waive a procedural requirement in the QCAT Act or Rules. Then, the procedural requirement having been waived, s 9(4) of the QCAT Act empowers the Tribunal to “do all things necessary or convenient for exercising its jurisdiction”. It is both necessary and convenient for the exercise of the Tribunal’s review jurisdiction that an order nunc pro tunc be made, that the application to review is deemed to have been filed on the date it was lodged in the Magistrates Court Registry at Rockhampton. [35] Each party has applied for leave to be represented pursuant to s 43 of the QCAT Act. The Tribunal may allow legal representation if the ‘interests of justice’ require the Tribunal to make the order which is to be construed as conferring a broad discretionary power on the Tribunal.11 The Commission is a State agency which I consider to be a factor in support of granting the Commission leave to be represented.12 Further, the proceeding involves complex issues of fact and law in the context of the review of a scope of works decision and, although the parties have not agreed to the other being represented, each party has applied for leave. In these circumstances, I am satisfied it is in the interests of justice, for each party to be given leave to be legally represented in the proceedings. [36] Accordingly, I make the following orders: The application to review is deemed to have been filed on 10 August 2023. The application to extend time filed by the applicant on 15 September 2023 is dismissed on the basis it is unnecessary given that the application for review is deemed to have been made within time. The parties each have leave to be legally represented in the proceedings. 10 [2023] QCATA 129. 11 Herron v The Attorney-General for New South Wales [1987] 8 NSWLR 601 at 613, per Kirby P. 12 QCAT Act, s 43(3)(a). -- 6 of 6 --