Bein v Queensland Building and Construction Commission [2021] QCAT 109

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bein v Queensland Building and Construction Commission [2021] QCAT 109 PARTIES: JOHN JOSEPH BEIN (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR 084-20 MATTER TYPE: General administrative review matters DELIVERED ON: 9 March 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: The Application to extend time, filed by John Joseph Bein on 28 February 2020, is dismissed. The Application to Review a decision, filed by John Joseph Bein on 2 March 2020, is to proceed having regard only to the decision of the Queensland Building and Construction Commission made on 13 February 2020. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether extension of time to file application for review can be granted under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – effect of s 86F(1)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether Tribunal has jurisdiction to hear the matter Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 Queensland Building and Construction Commission Act 1991 (Qld), s 86F Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor [2020] QCATA 6 -- 1 of 9 -- 2 Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 Col Jenkins & Associates v Queensland Building and Construction Commission [2019] QCAT 117 Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59 Queensland Building and Construction Commission v Watkins [2014] QCA 172 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: QBCC Legal Services 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] John Joseph Bein (‘the builder’) filed an Application to review a decision, in the Tribunal, on 2 March 2020 (‘the review application’). The application lists three decisions of the Queensland Building and Construction Commission (‘the QBCC’) as being sought to be reviewed: (a) 26 September 2019; (b) 18 October 2019; (c) 13 February 2020. [2] The builder filed an Application to extend or shorten a time limit or for waiver of compliance with procedural requirement, in the Tribunal, on 28 February 2020 (‘the EOT application’). [3] The QBCC filed an Application for miscellaneous matters, in the Tribunal, on 5 May 2020 (‘the limitation application’). [4] I gave directions on 9 September 2020 that submissions were to be filed in relation to the EOT application and the limitation application, and that those applications would be determined on the papers. Those applications have been referred to me for determination, and these are my reasons and decision in relation to them. The builder’s submissions [5] The application for extension of time filed on 28 February 2020 asks the Tribunal to make the following order: To grant an extension of time for this to be correctly sorted. [6] The reasons that the builder states in the Application as to why he considers the orders sought should be made are as follows: -- 2 of 9 -- 3 1. We have tried from the very beginning to complete this project but, unable to do so through constant bastardisation from the owners and no help from QBCC. 2. For the past 12 months John Joseph Bein has been extremely ill due to the stress that this job has caused him. Please refer QCAT BDL 164-19 [7] A submission was filed by the builder’s wife on 9 October 2020, together with a large bundle of documents containing emails, reports and letters, in relation to both the EOT application and the limitation application. [8] The submission seeks to address, in a general way, why an application to review the decisions of 26 September 2019 and 18 October 2019 was not made within 28 days of each decision. [9] The submission does not separately address the limitation application. [10] The submission recounts much of the history of the matter, and a related building dispute between the builder and the owners which is being heard in the Tribunal (BDL 164-19). The submission refers to various emails and interactions with the QBCC. [11] The submission says that the builder’s son telephoned the QBCC in mid-to-late January 2020 to ask what the situation was in relation to the matter and was told that remedial work had commenced. The subsequent lodging of the application to review is described as follows:1 We were then left with no alternative but to begin the case against the QBCC. When we took all the paperwork into QCAT, the lady at the front desk saw the dates on the Directions to Rectify and said they have expired all except one. That would be the one that you are needing answers on. Had we of [sic] understood the process, we would have commenced this action long ago. Instead we began the action against the owners themselves believing that was where the problem lay. The problem to us is that it is not just this Direction it is the whole job. We have been willing from the beginning to complete all the work that we were responsible for. We have attended every inspection and advised the QBCC of the results when trying to do the work. It would not be too difficult to understand the QBCC position, if the builder John Joseph Bein had of [sic] been a rogue builder but a man of then 74 years when the work commenced, now 77 years, with over 60 years experience [sic] in the trade and 43 years as a registered builder with no blemishes to his record and also willing to complete any work that is responsible for in this situation, is very difficult to understand. [12] The builder refers to the awareness of the matter by the QBCC, and addresses his knowledge of the appropriate procedure as follows:2 John Joseph Bein has over 60 years experience [sic] in the trade with no marks against his name. All the work that he was responsible for would have been completed to all professional standards. It was unable to be completed due to bullying abusive stand-over behaviour of the clients. The QBCC were notified 1 Submission of John Joseph Bein filed 9 October 2020, p 3. 2 Ibid p 5. -- 3 of 9 -- 4 of the impending problem in April 2018 when John Joseph Bein called into the office of the QBCC to notify them of the problems that he was having. All documents and correspondence are in the file BDL164-19. John Joseph Bein did not understand that there was a protocol to be followed within the QBCC system, as his intention was always to, complete the work. He asked for help many times as to how this could be done. He was also fighting to save his own life at the time as he was being treated for an aggressive case of non-hodgkin’s lymphoma, followed by two heart attacks. Being the honest man that he is, this put an enormous amount of stress on his life. [13] The submission concludes as follows:3 A lengthy explanation to the question regarding a request for an Extension of Time. We are sorry for that but do not know how else to explain a very difficult situation. Submissions of the QBCC [14] The QBCC filed a submission on 30 October 2020 in relation to the EOT application. It notes that it appears that the builder seeks to extend the time to review various antecedent decisions made by the commission throughout the course of the dispute including the matter as a whole, and submits as follows:4 For reasons further developed in the Limitation Application, the Commission submits that the only decision capable of review in this proceeding is the Commission’s decision about the scope of work dated 13 February 2020. The Commission submits that the other decisions contained in the Application to review a decision are not capable of review, by virtue of section 86F(1)(c) of the Queensland Building and Construction Commission Act 2009 [sic] (as over 28 days have elapsed since those decisions were served on the Applicant). [15] The QBCC filed the limitation application on 5 May 2020, and sought the following order: The application to review a decision filed on 2 March 2020 is amended so that the decision under review is the decision of the Commission dated 13 February 2020, about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete Tribunal work. [16] The QBCC filed submissions in support of its limitation application together with that application on 5 May 2020, and further submissions on 30 October 2020. The later submissions say that the QBCC relies on the limitation application and the initial supporting submissions. [17] A summary of the key events relevant to the matter is set out in the QBCC submissions.5 It is useful to set those events out as background information. I will edit the summary to provide a concise review of the events: 3 Ibid p 6. 4 Submissions of the QBCC, 30 October 2020, p 1. 5 Submissions of the QBCC, 5 May 2020, p 4 to 6. -- 4 of 9 -- 5 (a) 19 February 2018 – the builder and the owners enter into a contract for the renovation of a dwelling at Mango Hill in the state of Queensland in the amount of $150,000. (b) 25 July 2018 – the owners lodge a noncompletion claim with the QBCC. (c) 20 August 2018 – the QBCC decides the owners had validly terminated the contract at the default of the builder. (d) 15 October 2018 – the QBCC advises the builder that it had identified items of defective work. (e) 21 November 2018 – the QBCC gives the builder a Direction to Rectify and/or complete work No. 0104088. (f) 26 July 2019 – the QBCC allows the owners’ claim for noncompletion and defective work under the statutory insurance scheme. (g) 31 July 2019 – the QBCC prepares a scope of works to be undertaken under the statutory insurance scheme. (h) 26 September 2019 – following an internal review, the QBCC confirms the scope of works. (i) 15 October 2019 – the QBCC notifies the owners that the claim under the scheme is approved in the amount of $82,250.25. (j) 12 February 2020 – the insurance consultants to the QBCC, Sedgwick, request approval for a number of variations to the scope of works to be undertaken under the statutory insurance scheme. These relate to a kitchen bi-fold window (Variation 6) and a rumpus sliding door (Variation 7). (k) 13 February 2020 – the QBCC makes a decision about the scope of work to be undertaken under the statutory insurance scheme, and approves the variation to the scope of works as to Variation 6 and Variation 7. [18] The QBCC submits that the Review Application refers to three separate decisions involving a scope of works under the statutory insurance scheme. [19] It submits that section 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) contemplates one reviewable decision per application to the Tribunal and refers to the decision in Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor.6 [20] The QBCC submits that a decision about the scope of works to be undertaken under the statutory insurance scheme is not reviewable if 28 days have elapsed since the decision was served on the building contractor, pursuant to section 86F(1)(c) of the QBCC Act. It submits as follows: 6 [2020] QCATA 6, [73]. -- 5 of 9 -- 6 21. In Queensland Building and Construction Commission v Watkins7 the Queensland Court of Appeal held, in relation to an analogous section to the present section 86F of the QBCC Act, that the relevant section: … In prescribing that QCAT must not review decisions of the nature described in the section if 28 days have elapsed since the relevant decision or direction, makes it correct to conclude that it is a mandatory provision having substantive rather than procedural effect. 22. It is well-settled, and has been held by the Tribunal on a number of occasions, that the discretion to grant procedural relief, including an extension of time, under section 61 of the QCAT Act may not be exercised in respect of the mandatory time limitations imposed by section 86F of the QBCC Act. 23. Accordingly, and noting section 86F(1)(c) of the QBCC Act, both the decisions of 26 September 2019 and 18 October 2019 are out of time, and are now not reviewable by this Tribunal. 24. In the review application, the applicant also raises issues in relation to the quantum of the claim. Noting section 86(1)(a) [sic] of the QBCC Act, a decision to recover an amount is not reviewable. 25. In the commissions [sic] submission, the only decision capable of review identified by the review application is the decision about the scope of works dated 13 February 2020 (as detailed by Variation 6 and Variation 7). [21] The QBCC refers to previous decisions in relation to the jurisdiction of the Tribunal in a review of a decision about the scope of works to be undertaken under the statutory insurance scheme, and notes that the Tribunal has previously held that a scope of works review does not involve an examination of ‘issues of liability, surrounding issues of fault, or the cause of [the defects].’8 [22] The QBCC submits that the scope of the review proceedings should be limited to a consideration of whether the work to be performed in relation to the kitchen bi-fold window and rumpus sliding door is reasonable and necessary. Discussion [23] Section 86F(1)(c) of the QBCC Act refers to decisions that are not reviewable decisions: 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) ….. (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 7 [2014] QCA 172, [16]. 8 Col Jenkins & Associates v Queensland Building and Construction Commission [2019] QCAT 117, [26]. -- 6 of 9 -- 7 contractor and the contractor has not, within that time, applied to the Tribunal for a review of the decision; … [24] The Tribunal has power under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) to extend a time limit fixed for the start of a proceeding by an enabling Act in certain circumstances. That section provides as follows: 61 Relief from procedural requirements (1) The Tribunal may, by order – (a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or (b) extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or (c) waive compliance with another procedural requirement under this Act, an enabling Act or the rules. [25] The application of section 61 of the QCAT Act was considered by the Court of Appeal in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors.9 Applegarth J. noted that the jurisdiction of the Tribunal was limited by a provision in an enabling Act that acted as a prohibition:10 [34] The Appeal Tribunal’s reliance on Watkins was misplaced. That case concerned a provision of the Queensland Building Services Authority Act 1991 (Qld) which relevantly provided: “The Tribunal must not review the following decisions of the authority …” Dr Forbes, the member of QCAT who dealt with a related matter, concluded that the prohibition defined and limited the jurisdiction of the Tribunal. He stated: “It is not merely a procedural rule that may be relaxed under section 61 of the QCAT Act”. The matter before this Court was an appeal from an adjournment of an application for summary judgment. The respondent to that appeal did not challenge the decision of QCAT or make a submission contrary to its effect. Douglas J, with whom McMurdo P and Morrison JA agreed, did not question the correctness of the decision of QCAT and concluded that the relevant provision which prohibited the Tribunal from reviewing certain decisions of the Authority if 28 days had elapsed since the relevant decision or direction had a “substantive rather than procedural effect”. [35] This Court in Watkins was considering a very different kind of statutory provision to the kind of time period or time limit recognised by s 473(5)(b) and s 511(1)(a)(i) of PAMDA. As the Appeal Tribunal in this matter acknowledged, s 511(1)(a)(i), when read together with s 473(5)(b), is not couched as a prohibition, as the provision was in 9 [2016] QCA 37. 10 Ibid, [34] and [35]. -- 7 of 9 -- 8 Watkins. The provision in Watkins was a prohibition upon the Tribunal which, in the words of Dr Forbes “defines and limits the jurisdiction of the Tribunal”. [26] Applegarth J. further noted that a modifying section in an enabling Act which indicates that section 61 of the QCAT Act does not apply, prevails over section 61 of the QCAT Act:11 [49] Section 61 will not apply if the enabling Act indicates otherwise, for example, by stating that the period cannot be extended, that s 61 of the QCAT Act does not apply to empower the Tribunal to extend the time, or that an application must be brought in a certain time, failing which the Tribunal shall not decide the application. Where an intent to preclude an extension of time under s 61 is evident, there will be an inconsistency between the modifying provision and s 61 so that the modifying provision prevails in accordance with s 7 of the QCAT Act. [27] The power of the Tribunal to extend time under section 61 of the QCAT Act therefore applies to procedural requirements only and does not apply where an explicit provision of an enabling Act provides that a time period cannot be extended as a substantive provision. [28] I accept the submissions of the QBCC that section 86F(1)(c) of the QBCC Act is a substantive provision, as it provides that a decision of the type described in section 86F(1)(c) of the Act is not a reviewable decision. As the decision itself is not reviewable, then there can be no availability to extend time to review such a decision.12 [29] The builder did not file an application to review either of the first two decisions referred to in his Review Application within 28 days of the decisions being served upon him. [30] The builder has submitted that he did not earlier file applications to review those decisions as he did not understand ‘the QBCC system’, had personal health issues, and was involved in a building dispute with the owners. Those may be matters which would be relevant in an application to extend a procedural requirement but are not relevant in relation to a substantive requirement. [31] Accordingly, the Tribunal does not have jurisdiction in the circumstances to extend the time for filing applications to review in relation to the decisions made on 26 September 2019, and 18 October 2019, and the application to review those decisions must be dismissed. [32] The application to review the decision of 13 February 2020 was filed on 2 March 2020, which is within the 28 day period provided for in section 86F(1)(c), and therefore no extension of time is required in relation to that application, and that matter may proceed. [33] The QBCC has filed a separate application to amend the application to review a decision, the limitation application. The effect of that application is to seek the same 11 Ibid, [49]. 12 See also Eco-Builder Pty Ltd v Queensland Building and Construction Commission Pty Ltd [2018] QCAT 59. -- 8 of 9 -- 9 outcome as results from the failure of the application to extend time to review the decisions of 26 September 2019 and 18 October 2019. That application must consequently succeed. [34] The builder has enunciated numerous grievances he holds in relation to the actions of the owners and the QBCC. He has referred to his long history in the building industry, which he says is unblemished. Those matters, whilst of great personal significance to him, do not affect the clear provisions of the QBCC Act in relation to the review of decisions as to the scope of works under the statutory insurance policy and cannot affect the outcome of these applications. [35] I order that: The Application to extend time, filed by John Joseph Bein on 28 February 2020, is dismissed. The Application to Review a decision, filed by John Joseph Bein on 2 March 2020, is to proceed having regard only to the decision of the Queensland Building and Construction Commission made on 13 February 2020. [36] The matter will now proceed, in accordance with Direction 7 given on 9 September 2020, to a Directions Hearing, at a time and date to be advised to the parties by the Registry, for the making of further directions in relation to the progress of the Application to Review a decision. -- 9 of 9 --