Agenda Australia Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 308

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Agenda Australia Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 308 PARTIES: AGENDA AUSTRALIA PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR336-23 MATTER TYPE: General administrative review matters DELIVERED ON: 9 August 2023 HEARING DATE: 9 August 2023 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The reviewable decision is taken to be the decision to issue a Direction to Rectify dated 19 December 2022. The time to file the application to review a decision is extended to 4 May 2023. CATCHWORDS: ADMINISTRATIVE LAW – APPLICATION FOR AN EXTENSION OF TIME – whether decision to issue direction to rectify no longer reviewable due to s 86F of the Queensland Building and Construction Commission Act 1991 (Qld) – where s 86F does not apply – where time to file an application to review has passed - whether time to file an application to review should be extended under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Queensland Building and Construction Commission Act 1991 (Qld), s 86, s 86F, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 61 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 -- 1 of 5 -- 2 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 issue before me is whether to allow an extension of time for the applicant, Agenda Australia Pty Ltd, to file an application to review the decision by the Queensland Building and Construction Commission to issue a direction to rectify. The direction to rectify is dated 19 December 2022. As there is no separate notice to the applicant of an anterior decision to issue the direction to rectify, I have taken the date the applicant was notified of the decision, to be 19 December 2022. [2] On 4 May 2023 the applicant filed an application to review a decision. The application identifies in Part B the relevant decision to be reviewed as the decision 1225502 dated 17 April 2023 (the refusal of the Commission to extend time for internal review). [3] Section 86B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides that an internal review application must be made within 28 days after the applicant is given notice of the reviewable decision to which the application relates or a longer period allowed by the internal reviewer. The internal review unit, by letter dated 17 April 2023, notified the applicant that the Commission had decided not to exercise its discretion to extend the time to apply for internal review and the matter was closed. This decision is not reviewable.1 [4] The applicant is self-represented. The application attached the Direction to Rectify dated 19 December 2022 and the email of 17 April 2023. Under the heading “Briefly describe what you want to happen” the application states: Either the matter be remitted back to the QBCC for internal review, or, the Tribunal grant the applicant an extension of time within (sic) to file a review of the original decision to issue the direction to rectify which was dated 19th of December 2022 and which an extension can be granted on the grounds referred to in this application. [5] It appears that the application sought two alternative courses of action. Given the email of 17 April 2023 was not a reviewable decision and considering the applicant is self-represented, I have taken the decision, the subject of the application to review and of the application to extend time, to be the decision to issue a Direction to Rectify dated 19 December 2022. I do not agree with the submissions on behalf of the Commission that the effect of the Appeal Tribunal’s decision in Body Corporate for Alto Gladstone v Queensland Building and Construction Commission2 is that the application ‘is futile as it was not validly made because it seeks review of two separate issues’. [6] I turn now to consider whether to exercise my discretion to extend time to file an application to review that decision. Is the decision of 19 December 2022 a “reviewable decision”? 1 QBCC Act, s 86 2 [2020] QCATA 6. -- 2 of 5 -- 3 [7] The Commission submits that the decision is no longer reviewable due to s 86F(1)(b) of the QBCC Act. [8] Section 86F provides: 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) a decision to recover an amount under section 71; (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— (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; [9] The Commission submits that the 28 day period expired on 16 January 2023, 28 days from the date the decision was served on the applicant. Further, it is submitted, that by the time the application was filed on 4 May 2023 (105 days late), the decision was no longer reviewable. The Commission’s submissions do not expressly say on what basis s 86F(1)(b) applies but rather lists the actions it has taken to be as follows: (a) on 27 March 2023 emailing the homeowner notifying that the applicant has informed it will not complete the rectification works and that once the direction to rectify expires on 20 April 2023, it will provide a scope of works to be assessed under the statutory insurance scheme; (b) on 11 May 2023 emailing the homeowner notifying that a statutory insurance scheme claim is being assessed; (c) on 12 May 2023 notifying the applicant it had not complied with the direction to rectify; (d) on 12 May 2023 notified the homeowner that the applicant had not complied with the direction to rectify issued on 19 December 2022 and that it was assessing the case under the statutory insurance scheme; (e) on 15 May 2023 that an infringement notice checklist had been completed. [10] In my view, none of the matters listed in paragraph [9] above satisfy s 86F(1)(b)(ii). There is no evidence that a claim had been approved or an infringement notice issued by the time the application to review a decision was filed, on 4 May 2023. [11] Accordingly, I find that s 86F does not apply and the decision of 19 December 2022 is a “reviewable decision”. -- 3 of 5 -- 4 [12] The issue arises as to whether the time to file the application should be extended to 4 May 2023. Should the time for filing the application to review be extended? [13] Section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that an application to review a reviewable decision must be made by filing it in the Registry within 28 days after the relevant day. Here, the relevant day is the day the applicant was notified of the decision.3 [14] The Commission’s decision was made on 19 December 2022 and notified to the applicant that day. The time for applying for external review therefore expired on or about 16 January 2023. The application to review was not filed until 4 May 2023, some 105 days late. [15] Section 61 of the QCAT Act gives the Tribunal power to extend a time limit for the start of a proceeding under the QCAT Act. An extension can be given even if the time for compliance has passed.4 However, the Tribunal can not extend time if to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages to a party or potential party to a proceeding.5 [16] Although the Commission’s submissions are that the Commission and the homeowner “will suffer prejudice as a result of the delay” no evidence of such prejudice was provided, merely that prejudice would follow because the delay is significant, it is entitled to rely on time limits and, following the expiry of the time limit, the Commission notified the homeowner that a claim was being assessed and completed an infringement notice checklist. [17] While these matters constitute some prejudice, I am not satisfied on the basis of these submissions that is such as to mean that the application should be dismissed. There is no reason why the matter would not progress to be assessed under the statutory insurance scheme in the ordinary course, notwithstanding the review. [18] The factors relevant to the exercise of my discretion under s 61 were outlined in Jensen v Queensland Building and Construction Commission.6 They include: explanation for delay; strength of case if allowed to proceed; prejudice; length of delay; interests of justice. [19] Here the delay was 105 days. That is not an insignificant delay in the context of a statutory time period of 28 days. The explanation for the delay, strength of case, prejudice and interests of justice are here interlinked. In summary, the applicant submits that it went beyond the scope of the retainer and gratuitously to assist the homeowner by tiling a bathroom. Those tiles “popped” and the applicant attempted to rectify the issue, receiving a number of extensions by the Commission to do so. It appears that, in the course of several unsuccessful attempts to rectify the issue, the applicant discovered that, in its submission, the issue lay not with the tiling work but with the slab/foundations underpinning that work. [20] The applicant, in support of the application to extend time, relies on a report by Bespoke Engineering Solutions dated 28 February 2023 which refers to the bathroom 3 QCAT Act, s 33(4)(a). 4 QCAT Act, s 61(2). 5 QCAT Act, s 61(3). 6 [2017] QCAT 232. -- 4 of 5 -- 5 slab level being out of level by approximately 20mm and that the slab outside the bathroom as also out of level. The report concludes that “it appears the foundation is moving” and identifies two potential causes: (i) several large trees (up to 10m) which have potentially caused shrink/swell in the soil causing foundation movement; and (ii) the ‘built under foundation’ having been said to be “hand-mixed” which is typically inferior to a plant mixed concrete. [21] The Report concludes that if the slab is moving that this will cause tiles and associated waterproofing to move and/or crack. The applicant also refers to the homeowner’s belief that the problem was caused by the neighbour’s trees and that the tiler had done some invasive works after being unable to rectify the problem and discovered a “serious slab breakdown”. [22] The applicant was given a number of extensions to rectify the issues identified by the Commission. The applicant submits it was given an extension of 35 days and a further extension upon the expiration of that time period. The applicant says a further two extensions of 28 days were granted following that and that the applicant “reasonably believed” the review timeframe ran with the extensions he was given. A misapprehension of the law is no excuse. That said, the activity shows that the applicant was not ‘resting on its hands’ but was engaged and working with the Commission in an attempt to rectify the issues identified in the direction to rectify. The numerous attempts to rectify and extensions given by the Commission provide, in my view, some explanation for the delay. The attempts also demonstrate that the applicant had, in good faith, tried to fix the problem. Moreover, the applicant says that it was not until after that rectification work had been attempted that he concluded that the cause of the issues was not his work or that of his sub-contractors but foundation movement and an inherently defective slab. [23] Further, there is, in my view, a material prospect the applicant will be able to show that there are other causes, beside tiling or waterproofing work, that have caused or at least contributed to, the issues identified in the direction. [24] In considering the matter as a whole, I consider it in the interests of justice that the time to apply for review of the direction to rectify be extended to 4 May 2023. [25] I order accordingly. -- 5 of 5 --