Brisbane Timber Decks Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 67

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brisbane Timber Decks Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 67 PARTIES: BRISBANE TIMBER DECKS PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR 135-21 MATTER TYPE: General administrative review matters DELIVERED ON: 2 March 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: The application to review a decision of the Queensland Building and Construction Commission made 8 June 2021 filed 3 November 2021 is a separate application to matter GAR135-21. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS - GENERALLY – whether an application to review a decision purportedly filed in earlier review proceedings is an application to commence separate review proceeding Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 33, s 38, s 54, s 55, s 61, s 64 Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor [2020] QCATA 6 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] Brisbane Timber Decks Pty Ltd (the Contractor) carried out decking work for certain homeowners in 2019. The homeowners complained to the Queensland Building and Construction Commission (QBCC), which after inspecting the works issued a direction to rectify (DTR) to the Contractor. The QBCC decided that the Contractor did not comply with the DTR and assessed the homeowners’ claim -- 1 of 4 -- 2 against the statutory insurance scheme. As part of that process the QBCC prepared and approved a scope of works. The Contractor sought internal review of the scope of works decision. By decision dated 5 February 2021 the internal review decision was taken to be the same as the decision to approve the scope of works as the internal review had not been completed within the review period. [2] Shortly after, by decision dated 8 February 2021, the QBCC decided to approve an amended scope of works (the Decision). The Contractor applied to the Tribunal to review the Decision (the Application).1 The Registrar allocated the matter number GAR135-21 to the Application. Initial directions for the conduct of the Application were issued on 11 June 2021. [3] The QBCC decided to approve a further amendment to the scope of works by decision dated 8 June 2021(the 8 June Decision). [4] On 22 June 2021 the Contractor sent a letter to the QBCC disputing the 8 June Decision and sent a copy to the Tribunal. The 8 June Decision set out the Contractor’s rights to an internal review or to an external review by the Tribunal. It clearly set out the need to complete and lodge with the Tribunal a form 23, Application to review a decision within 28 days of receiving it. [5] At a compulsory conference on 6 October 2021 directions were issued for: (a) the filing of an application to review the 8 June Decision and an application for an extension of time to file the application to review the 8 June Decision together with submissions in support of the application for an extension of time;2 (b) submissions in response to the application for an extension of time by the QBCC;3 (c) the application for an extension of time to be determined and for the making of any consequential orders in relation to consolidation of proceedings or the sequence of proceedings.4 [6] The Contractor sought an extension of time to comply with the 6 October 2021 directions.5 [7] Prior to that extension of time application being determined, the Contractor filed in this proceeding a further Application to review a decision seeking to review the 8 June Decision (the Second Application) and an Application to extend or shorten a time limit or for waiver of compliance with procedural requirement (EOT Application).6 1 Application to review a decision filed 19 February 2021 at Caloundra, received at the Brisbane registry on 22 February 2021. 2 Direction 1 made 6 October 2021. 3 Direction 2 made 6 October 2021. 4 Direction 3 made 6 October 2021. 5 Application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed 14 October 2021. 6 Filed 3 November 2021. -- 2 of 4 -- 3 [8] Directions were issued seeking submissions as to why the Second Application should not be deemed a separate application given the 8 June Decision was not in existence when GAR135-21 commenced and for the issue to be determined on the papers.7 [9] The Contractor’s submissions in response to the 16 November 2021 Directions sent by email to the Tribunal on 7 December 2021 state: As far as I’m concerned the pc item should be part of application GAR135-21 considering I will disagree to the work carried out by the QBCC. [10] A similar email was sent by the Contractor on 7 December 2021 to the QBCC.8 [11] The QBCC filed submissions in response to the EOT Application and the direction of 16 November 2021.9 The QBCC’s submissions focus upon the EOT Application. Is the Second Application a separate application to review a decision? [12] I find that the Second Application is a separate application and should not be part of GAR135-21. [13] The Contractor is self-represented. Its submissions, somewhat understandably, are not particularly helpful or persuasive. The QBCC’s submissions focus upon its contention that the EOT Application and therefore the Second Application ought to be dismissed. [14] The Appeal Tribunal has previously accepted that a separate application to review a decision is required for each decision sought to be reviewed, with the consequence that a separate filing fee is required to be paid.10 [15] The Tribunal’s objects include to promote the quality and consistency of tribunal decisions11 and to achieve the Tribunal’s objects the tribunal is to ensure like cases are treated alike.12 [16] The Contractor has not made any submissions that there are special circumstances in this case as to why the Tribunal should not follow the Appeal Tribunal’s decision. [17] These proceedings had been commenced well before the 8 June Decision was made and therefore well before any rights to have it externally reviewed arose. On the material before me there are no special circumstances. I accept the Appeal Tribunal’s decision that a separate application to review a decision is required for each decision sought to be reviewed. [18] An applicant for an application must pay the prescribed fee and the Tribunal is prohibited from taking any action on an application until the fee is paid.13 No filing fee is noted as having been paid in respect of the Second Application, which is 7 16 November 2021. 8 QBCC submissions filed 23 December 2021, [11]. 9 Filed 23 December 2021. 10 Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor [2020] QCATA 6. 11 QCAT Act, s 3(c). 12 Ibid, s 4(d). 13 Ibid, s 38. -- 3 of 4 -- 4 perhaps understandable as the Contractor has purported to file it in the current proceedings. [19] The 6 October 2021 Directions do not contemplate that the Contractor is to file an application for leave to amend the current proceedings to include a review of the 8 June Decision.14 The 6 October 2021 Direction 3 specifically contemplates that the Second Application and EOT Application would be filed in a new review proceeding and that if the EOT Application was allowed the Tribunal would make orders in relation to consolidation or sequencing. [20] Section 54 of the QCAT Act provides that the tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances be consolidated into 1 proceeding. [21] Section 55 of the QCAT Act provides that the tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances remain as separate proceedings but be heard and decided together or be heard in a particular sequence. [22] If a separate proceeding was not to be commenced by the filing of the Second Application, there would be no need to contemplate whether orders for consolidation or sequencing were required. [23] Section 33 of the QCAT Act provides that it applies if the QCAT Act or an enabling Act, in this case the Queensland Building and Construction Commission Act 1991 (Qld), provides that a person may apply to the tribunal to deal with a matter. It sets out the requirements for making an application including that if the application is for the review of a reviewable decision the application must be filed in the registry within 28 days after the applicant is notified of the decision.15 The notes to section 33 of the QCAT Act refer to the power under section 61 of the QCAT Act to extend the period within which a person must make an application. [24] The Second Application is a separate application to GAR135-2116 and the EOT Application is an application pursuant to section 61 of the QCAT Act for relief from procedural requirements in that separate application. [25] If the Contractor wishes to pursue the Second Application and have the EOT Application determined it must pay the prescribed fee. 14 Ibid, s 64. 15 Ibid, s 33(3), s 33(4). 16 Ibid, s 33. -- 4 of 4 --