Ahmedov v The Regulator Under the Electrical Safety Act [2019] QCAT 376

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ahmedov v The Regulator Under the Electrical Safety Act [2019] QCAT 376 PARTIES: ABBOS ADAM AHMEDOV (T/AS SERVICE 2 GO PTY LTD) (applicant) v THE REGULATOR UNDER THE ELECTRICAL SAFETY ACT (respondent) APPLICATION NO/S: OCR207-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 26 November 2019 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: The application for an extension of time filed on 14 November 2019 is refused. The application to review a decision filed on 19 June 2019 is dismissed CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether application for an extension of time should be granted. Electrical Safety Act 2002 (Qld) s 121, s 172 Queensland Civil and Administrative Tribunal Act 2002 (Qld) s 3, s 33, s 61 Reeve v Hamlyn [2015] QCATA 133, [36] Herron v McGregor (1986) 6 NSWLR 246, 253 Brisbane South Regional Authority v Taylor (1996) 186 CLR 541, 552 REPRESENTATION: Applicant: Self-represented Respondent: Edwards J., Principal Appeals Officer for the Respondent -- 1 of 4 -- 2 APPEARANCES: 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 On 19 June 2019, the applicant applied to the Tribunal to review a disciplinary decision of the Electrical Licensing Committee dated 8 April 2019, made pursuant to s 121 of the Electrical Safety Act 2002 (Qld) (‘the Act’). By s 172 of the Act, application may be made to QCAT for a review of that decision, ‘as provided for under the QCAT Act’. By s 33(3) of the Queensland Civil and Administrative Tribunal Act 2002 (Qld) (‘QCAT Act’), the application for review must be filed within 28 days of the ‘relevant day’. For present purposes, the relevant day is the day the applicant was notified of the decision.1 The applicant states in his application for review that he was notified of the decision on 15 April 2019. However, the respondent states that the applicant phoned the respondent on 8 April 2019 advising that he had received the notice and ‘enquired as to whether it was possible to re-sit the hearing’.2 The application to review was filed on 19 June 2019, so that even on the account given by the applicant it was filed over 5 weeks after the permitted time limit. By s 61(1) of the QCAT Act, the Tribunal may extend a time limit. On 4 July 2019, directions were issued by the Tribunal requiring the applicant to file by 12 July 2019 an application to extend time, along with any written submissions in support of that application, and for the respondent to file any written submissions in response by 19 July 2019. It was further directed that the application to extend a time limit would be determined on the papers and without an oral hearing. The applicant filed an application to extend time on 14 November 2019, some four months after the required date, stating that he had been overseas with his family. No indication was given as to the period during which he was overseas. In accordance with the directions made on 4 July 2019, the respondent filed its written submissions on 19 July 2019. They were sent to the applicant at the email address provided by him. In opposing the application to extend time, the respondent referred to a history of non- engagement on the part of the applicant in the process of the original disciplinary proceedings. That included a failure to respond to an invitation to provide information relevant to a determination to be made by the respondent as to whether the complaint in question should be referred to a hearing in light of the Electrical Safety Officer’s findings, which findings were provided to the applicant. There was also a failure to attend the disciplinary hearing itself.3 Reference was also made to unsuccessful attempts to contact the applicant by email, registered post and telephone and to advice given that if he failed to appear at the hearing it may proceed in his absence.4 1 QCAT Act, s 33(4)(a). 2 Submissions on behalf of the respondent regarding the application to extend the time limit to file an application to review a decision, [24]. 3 Ibid, [6]-[17]. 4 Ibid, [6], [11], [13], [19]. -- 2 of 4 -- 3 In addition to the advice given in the disciplinary decision notice of 8 April 2019 as to the time within which an application to QCAT for review must be made, the respondent states that on 24 April and 9 May 2019 further advice was given to the applicant in relation to review of the decision, including in relation to applicable time lines.5 In his application for an extension of time, the applicant simply states that the original hearing was conducted without him and that a decision was made in the absence of his side of the story. He did not respond to any of the allegations made by the respondent, noted above. The principles applicable to an application for an extension of time are well settled. They are: (a) the extent of the delay and whether there is a satisfactory explanation for the delay; (b) the merits of the application and prospects of success; (c) the likelihood of prejudice to other parties; and (d) whether the extension of time is in the interests of justice.6 Even on the applicant’s account as to when the he was notified of the decision, there was a delay of over 5 weeks in filing the application to review a decision. No explanation has been given for that delay. As is noted above, there was a further lengthy delay in filing the application for an extension of time. No information has been provided by the applicant as to the merits of the application to review. In the application to review he states: ‘I accept my mistake’. However, he also states that ‘to suspend my business for 2 years is beyond punishment/penalty for my actions’. In the material attached to the disciplinary notice it is stated that the applicant ‘demonstrated negligence and incompetence in the performance of electrical installation work’, ‘performed non-compliant electrical installation work’, connected an electrical installation to a source of electricity in contravention of the legislation, and conducted specified installation work without being the holder of an electrical contractor’s licence. In the submissions of the respondent it is stated:7 The decision of the Electrical Licensing Committee was that the way in which the applicant performed the electrical works was electrically unsafe and that the extent and severity of non-compliance demonstrated negligence and deficiencies in his level of competence to perform electrical installation work as an electrical worker and Qualified Technical Person. If serious disciplinary action were not taken and the Applicant continued to operate without a better understanding of obligations and responsibilities under electrical safety 5 Ibid, [30], [33]. 6 Reeve v Hamlyn [2015] QCATA 133 at [36] (footnotes omitted). 7 Submissions on behalf of the respondent regarding the application to extend the time limit to file an application to review a decision, [55]. -- 3 of 4 -- 4 legislation the Electrical Licensing Committee considered it likely that further instances of unsafe outcomes and exposure to electrical risk for persons and property would ensue. It is also submitted that the applicant has admitted the breach, is opposing the penalty only and has not provided any submissions to negate the seriousness of the conduct or to suggest any reasonable prospects of success in the matter.8 The respondent ‘does not contend’ that it has suffered any prejudice as a result of the delay, but submits that ‘the certainty arising from decisions of the Electrical Licensing Committee would be placed in jeopardy should an applicant be able to ignore the relevant statutory time limits after being repeatedly advised of the procedure in which to seek a review of the Electrical Licensing Committee’s decision.’ It is added that the ‘severity of his actions has implications to the safety and wellbeing of workers and the community at large’ and that the respondent should be able to carry out its statutory duties of promoting safe work practices within the context of the statutory regime. As to the interests of justice, it is noted that one of the objects of the QCAT Act is ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’.9 As noted by McHugh J in Herron v McGregor, the ‘limitation period represents the legislature’s judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create’.10 McHugh J further noted in Brisbane South Regional Authority v Taylor that the ‘effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions’.11 It is evident that the applicant has been given ample opportunity to engage in the original decision making process and with the Tribunal. Not only did he fail to file the application to review on time, he has also failed to comply with directions made by the Tribunal, without a clear and adequate excuse. Further no material has been filed by the applicant suggesting that the application for review has merit. In the circumstances, the application for an extension of time should be refused and the application to review a decision dismissed. 8 Ibid, [56]-[57]. 9 QCAT Act, s 3(b). 10 (1986) 6 NSWLR 246, 253. 11 (1996) 186 CLR 541, 552. -- 4 of 4 --