Aramac Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 364

CITATION: Aramac Constructions Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 364 PARTIES: Aramac Constructions Pty Ltd (Appellant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR097-15 MATTER TYPE: General administrative review matters HEARING DATE: 8 September 2015 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 9 September 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for extension of time is dismissed. 2. The application for review is dismissed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – jurisdiction – whether application for review out of time – where extension of time sought – whether Tribunal may grant extension – whether decision of Commission duly served – whether presumption of service by post rebuttable – whether presumption rebutted Acts Interpretation Act 1954 (Qld) ss 39, 39A Acts Interpretation Act Amendment Act 1991 (Qld) s 35 Corporations Act 2001 (Cth) s 109X Corporations (Ancillary Provisions) Act 2001 s 9 Queensland Building and Construction Commission Act 1991 (Qld) ss 71, 75, 86, 87, 109A, 111C Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17-24, 61 -- 1 of 5 -- 2 Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184 Gem Po-Chioh Cheong v Webster; ex parte Gem Po-Chioh Cheong [1986] 2 Ad R 374 Hope & Anor v Brisbane City Council [2013] QCA 198 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238 Queensland Building and Construction Commission v Watkins [2014] QCA 172 Thunder Corp Pty Ltd v Queensland Building Services Authority [2008] QCCTB 214 APPEARANCES and REPRESENTATION: APPLICANT: Mr A J Cummings RESPONDENT: Mr B Szima, solicitor, Queensland Building and Construction Commission REASONS FOR DECISION [1] On 8 May 2015 the applicant, Aramac Developments Pty Ltd (Aramac), filed an application seeking review1 of a decision (the subject decision) of the respondent Commission (QBCC). Simultaneously Aramac filed an application for extension of time to pursue its substantive application. [2] The subject decision concerns the scope of works to be undertaken under the QBCC’s statutory insurance scheme to rectify or complete “tribunal work”2 on premises at Cedar Vale, Queensland. [3] In principle, the Tribunal may review such a decision.3 However, the application for review must be commenced within 28 days of the service of the decision upon the building contractor, namely Aramac.4 [4] The QBCC submits that Aramac’s application is out of time and apt to be dismissed for want of jurisdiction.5 [5] If the review application is indeed out of time the request for an extension must fail. The special limitation period prescribed by the Queensland Building and Construction Commission Act 1991 (“QBCC Act”) is not merely 1 QCAT Act ss 17-24; Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) s 87. 2 As defined in QBCC Act s 75. 3 QBCC Act ss 86(1)(g) (subject to s 86F(1)(c)), 87. 4 Ibid s 86F(1)(c). 5 QBCC submissions 9 July 2015 paragraph 34. -- 2 of 5 -- 3 procedural, as are comparable time limits set out in rules of court6 and the Tribunal7. [6] There is clear authority that the limitation now in question is not merely procedural, but mandatory and substantive. If it is not observed, the right to seek review is not merely suspended, but extinguished. The Act awards high priority to finality. Time cannot be extended by the Tribunal applying the procedural provisions of section 61 of the QCAT Act.8 My reasons for this ruling are set out in my decision in Watkins v Queensland Building Services Authority,9 as approved by the Court of Appeal10, and need not be recited here. [7] The QBCC’s case is that it served the decision upon Aramac by post on or about 12 November 2014.11 If that is so, the substantive application is several months out of time, and the application for review must be dismissed. [8] However, it is a question whether service was duly effected on or about 12 November 2014. Aramac says that it had no notice of the subject decision until 9 April 201512, when its director, Mr Cummings, visited the QBCC’s office and was given a copy of it by an employee of the Commission.13 [9] On the other hand, there is evidence that the decision was posted by prepaid letter to Aramac’s address, as recorded with the QBCC, on 10 November 2014, and that the letter containing it was not returned to the Commission. That evidence relies upon the assumption that normal office practice was followed, but the deponent also says that she recalls handling the particular letter, as well as its collection by Australia Post “at approximately 2.45 pm on 10 November 2014”.14 One may be forgiven for doubting that there was any real recollection of such mundane events some eight months after the event.15 [10] The QBCC Act relevantly provides: 6 For example Uniform Civil Procedure Rules 1999 r 748(a) (time for appealing: 28 days). 7 For instance, QCAT Act s 143(4)(a) (application for leave to appeal: 21 days.) 8 Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238 at [11]; Hope & Anor v Brisbane City Council [2013] QCA 198; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 42-43. 9 [2013] QCAT 535. 10 Queensland Building and Construction Commission v Watkins [2014] QCA 172. 11 QBCC submissions 9 July 2015 paragraph 11; affidavit of Anne-Marie McAuley affirmed 13 July 2015. 12 Affidavit of Allan James Cummings, sworn 10 August 2015 (“Affidavit 1”) paragraphs 4, 8, 17; Affidavit of Mr Cumming’s, sworn 21 August 2015 (“Affidavit 2”) paragraphs 4, 6, 8, 17. See also affidavit of A J Cummings sworn 24 July 2015 and affidavit of Lynn Mari Cummings sworn on 24 July 2015 (each filed in Magistrates Court action 2661 of 2015). 13 Affidavit 1” paragraph 9 (see also Affidavit 2, paragraph 9) he was then given an opportunity to read the notice of 10 November 2014. However, at a hearing on 8 September 2015 he informed the Tribunal that he was actually given a copy of that material. 14 Affidavit of Anne-Marie McAuley paragraph 9. 15 The affidavit was made on 13 July 2015. -- 3 of 5 -- 4 A document may be served under this Act on a licensee by ... sending it by post ... to the address of the licensee in the register of licensees kept by the commission.16 [11] That provision does not derogate from section 39 of the Acts Interpretation Act 1954 (“the AIA”), which states: If an Act requires or permits a document to be served on a person, the document may be served ... on a body corporate – by ... sending it by post ... to the head office, a registered office or a principal office of the body corporate.17 [12] And the Corporations Act 2001, in a provision that complements, without conflicting with18 the QBCC Act or the AIA, enacts: For the purposes of any law, a document may be served on a company by ... (b) delivering a copy of the document personally to a director of the company who resides in Australia.19 [13] Section 39A of the AIA, inserted in 1991, provides in part: If an Act requires or permits a document to be served by post, service – (a) may be effected by properly addressing, prepaying and posting the document as a letter; and (b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.20 [14] Aramac raises no issue about observance of the posting formalities in section 39A. [15] Prior to 1991, the proviso “unless the contrary is proved” was transferred from the existing section 39 of the AIA to the new section 39A. When it was contained in section 39 – before there was a section 39A – it followed immediately after the words “properly addressing, prepaying and posting a letter or packet containing such document”, and was open to the narrow interpretation that the presumption of service could be rebutted only by proving that the “addressing, prepaying” (etc) procedure was not strictly followed. That was the position when authority now relied on by the QBCC21 was decided in 1985. [16] But as the AIA now stands, the phrase “unless the contrary is proved” are not so closely tied to the posting formalities; instead, they follow the reference to delivery. This legislative change, in my view, warrants a broader interpretation of the proviso, so as to permit an attempt to prove that delivery did not in fact occur. I am fortified in this view by the opinion of 16 QBCC Act s 109A(1). 17 Acts Interpretation Act 1954 (Qld) s 39(1)(b). 18 Compare Corporations (Ancillary Provisions) Act 2001 (Qld) s 9(1)(a). Section 109X merely provides an additional alternative. 19 Corporations Act 2001 s 109X(1). 20 Emphasis added. 21 Gem Po-Chioh Cheong v Webster; ex parte Gem Po-Cheong [1986] 2 Qd R 374 (decided in December 1985). -- 4 of 5 -- 5 a judicial member of the Tribunal, a former member of the Court of Appeal22, that an issue of due delivery is now simply a question of evidential fact.23 In that earlier case there was “evidence that no such [communication] was received, and the Adjudicator was entitled to act upon it”.24 [17] Here the evidence of non-delivery amounts to more than a bare denial. Apart from circumstantial evidence of occasional errors or omissions in postal deliveries in the Loganholme area, there are Mr Cumming’s expressions of dismay and disbelief when he saw the decision of 9 April 2015. There is no good reason to discredit that evidence, and the QBCC does not dispute it, despite two opportunities to do so. It is, then, a reasonable inference that, if Mr Cummings was aware of the decision in November 2014, it is unlikely that he would have remained silent about it for several months afterwards. I find it more probable than not that his first knowledge of the decision arose in April 2015. [18] But unfortunately for Aramac and Mr Cummings25 that is not an end of this story. Even assuming that there was no service until 9 April 2015, the application is out of time. Twenty nine (29) days elapsed from 9 April 2015 (when he visited the QBCC office) until 8 May 2015 when the application for review was filed, and, as indicated above, the Tribunal has no discretion to extend, by any period, the time limited by the QBCC Act. My reluctant conclusion is that the delivery of a copy of the decision to Mr Cummings, a director of Aramac26, on 9 April 2015, was service upon his company. [19] Bound as I am by mandatory and inflexible legislation, I have no alternative but to hold that the application for review was not commenced within the time limited in section 86F(1)(c) of the QBCC Act, and must therefore be dismissed for want of jurisdiction. [20] It does not inevitably follow that Aramac has no remedy. In any court action taken by the QBCC to enforce its claim27 the company may contest issues of liability, or quantum, or both. The effect of this decision is simply that those matters cannot be reviewed in this Tribunal. ORDERS 1. The application for extension of time is dismissed. 2. The application for review is dismissed. 22 Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184 AT [39]-[40] (per Mr J B Thomas QC). See also Thunder Corp Pty Ltd v Queensland Building Services Authority [2008] QCCTB 214. 23 Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238. 24 Ballada Pty Ltd v North Point Brisbane & Anor (above) at [40]. 25 Directors may be made liable for debts arising from decisions of the present kind: QBCC Act s 111C(6). 26 As recorded on page 2 of the licence search annexed to the affidavit of Anne-Marie McAuley affirmed on 13 July 2015. 27 QBCC Act s 71. -- 5 of 5 --