All Systems Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 237

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: All Systems Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 237 PARTIES: ALL SYSTEMS PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR138-22 MATTER TYPE: General administrative review matters DELIVERED ON: 30 June 2022 HEARING DATE: 30 June 2022 HEARD AT: Brisbane DECISION OF: A/Senior Member Traves ORDERS: The application to extend time filed by the applicant on 20 May 2022 is refused. The application to review is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where builder applied for review of scope of works decision – where application filed more than 28 days from notice of decision – where 28-day time limit is not merely procedural but goes to jurisdiction –whether Tribunal has jurisdiction to hear and decide the application for review Queensland Building and Construction Commission Act 1991 (Qld), s 86F(1)(c), s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 33(3), s 47, s 61 Sunup Solar Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 435 Queensland Building and Construction Commission v Watkins [2014] QCA 172 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) -- 1 of 3 -- 2 REASONS FOR DECISION [1] The Queensland Building and Construction Commission (‘Commission’) made a decision about the scope of works in relation to rectification work to be completed at a property in Toolakea. The applicant, All Systems Pty Ltd (‘All Systems’) is the contractor who performed the original work relating to the roof. [2] The scope of works decision was made on 1 March 2022. The Commission says the decision was emailed to All Systems that same day. All Systems say they received the decision on 2 March 2022. [3] All Systems filed an application to review the scope of works decision on 29 April 2022. It seeks a review on the basis the scope of work includes replacement of the box gutter. All Systems says it was responsible for replacing roof sheeting adjacent to the box gutter but was not contracted to, and did not perform, any work on the box gutter. Accordingly, it is submitted, the Tribunal on review should set aside the scope of works decision and replace it with a decision confined only to the work performed by All Systems. [4] On 20 May 2022 All Systems filed an application to extend time “from 29 March 2022 until 29 April 2022” to file the application to review the scope of works decision. [5] The Commission filed submissions in response on 16 June 2022 opposing the extension of time on the basis the scope of works decision was statutorily excluded from review pursuant to s 86F(1)(c) of the Queensland Building and Construction Commission Act 1991 (QBCC Act). Accordingly, the Commission submits, the review application ought be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Consideration [6] The Tribunal has jurisdiction to review decisions in respect of which review jurisdiction has been conferred by an enabling Act.1 Here the relevant enabling Act is the QBCC Act. [7] Section 87 of the QBCC Act provides that an application may be made to the Tribunal to review a “reviewable decision…as provided under the QCAT Act.” [8] A decision about a scope of works to be undertaken under the statutory insurance scheme is a reviewable decision.2 [9] Section 86F of the QBCC Act sets out decisions which are not reviewable decisions and 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— … (c) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and 1 QCAT Act, s 17. 2 QBCC Act, s 86(1)(g). -- 2 of 3 -- 3 the contractor has not, within that time, applied to the tribunal for a review of the decision; … [10] The parties dispute what date the decision was served on All Systems. The Commission submit it was emailed to All Systems on 1 March 2022. All Systems submit it was not received by it until 2 March 2022. The difference is not material to my decision. However, I will accept, for the purposes of determining the extension of time application, that the relevant day was 2 March 2022. [11] The application for review was required to be filed by 30 March 2022. It was not filed until 29 April 2022, 30 days late. [12] The issue arises as to whether this can be cured by s 61 of the QCAT Act. Section 61 gives the Tribunal power to extend the time fixed by an enabling Act. It is well established by a line of authority, including the decision of the Court of Appeal in Queensland Building and Construction Commission v Watkins,3 that the power in s 61 to extend a time limit can not be used to extend time under s 86F of the QBCC Act. This is because s 86F has been held to be “a mandatory provision having substantive rather than procedural effect”.4 Watkins was applied by the Tribunal in Sunup Solar Pty Ltd v Queensland Building and Construction Commission5 where it was held: 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.6 [13] The review application of 29 March 2022 is accordingly of no effect and the relevant time limit in s 86F of the QBCC Act can not be extended. [14] It follows, that the application for an extension of time and the review application are dismissed. I make orders accordingly. 3 [2014] QCA 172. 4 Ibid at [16]. 5 [2015] QCAT 435. 6 Ibid at [61]. -- 3 of 3 --