Brown v Queensland Building and Construction Commission [2014] QCAT 487

CITATION: Brown v Queensland Building and Construction Commission [2014] QCAT 487 PARTIES: Deborah Brown (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR356-13 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 30 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Deborah Brown’s application to extend time in relation to the reviewable decision of the Queensland Building and Construction Commission dated 24 June 2011 is dismissed. 2. Deborah Brown’s application to extend time in relation to the reviewable decision of the Queensland Building and Construction Commission dated 9 January 2014 is allowed. 3. The time for filing in the Tribunal of an application to review a decision in relation to the reviewable decision of the Queensland Building and Construction Commission dated 9 January 2014 is extended to 4:00pm 24 October 2014. 4. Following Deborah Brown’s compliance or non compliance with Order 3 above the Tribunal will make further directions in relation to sequencing the hearings of this review proceeding in relation to the 2 September 2013 decision and the review proceeding to be commenced in relation to the 9 January 2014 decision. -- 1 of 6 -- 2 CATCHWORDS: EXTENSION OF TIME TO COMMENCE REVIEW – whether discretion should be exercised – lengthy delay – likely prejudice to builder Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 61 Queensland Building and Construction Commission Act 1991 (Qld), s 72(14) Hunter Valley Developments v The Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Molier v Body Corporate for Q1 CTS 34498 [2012] QCATA 8 Harburg v Queensland Building Services Authority [2003] CCT Q068-03 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Ms Brown seeks an extension of time to commence a review of the decisions of the Queensland Building and Construction Commission (‘the Commission’) made on 24 June 2011 (‘2011 Decision’) and 9 January 2014 (‘2014 Decision’). [2] The Commission opposes such an order being made in respect of the 2011 Decision. The Commission does not oppose such an order being made in respect of the 2014 Decision but submits that a new review application ought to be filed and standard directions made because the ‘issues including the relevant legislation and considerations are different’ to the decision dated 2 September 2013. [3] The Commission accepts that both decisions are reviewable decisions. Both decisions contain acknowledgements that the decision is reviewable by the Tribunal and that review applications must be made within 28 days. 2011 Decision [4] Ms Brown filed an Application to review on 14 October 2013 and specifically referenced a decision of the Commission made on 2 September 2013. In an attachment to her Application to review Ms Brown also referenced a number of other decisions of and correspondence from -- 2 of 6 -- 3 the Commission including the 2011 Decision. Ms Brown submits that she intended that the 2011 Decision was to be reviewed as part of her application. [5] The 2011 Decision stated: The items listed in your complaint are contractual issues and are therefore not determined to be defective building work.......For this reason BSA will not be issuing a Direction to Rectify....QCAT has jurisdiction over contractual disputes [6] The starting point is that if a matter is not commenced within time then it ought not be entertained.1 [7] However the Tribunal has discretion to allow an extension of time to start a proceeding.2 The Tribunal cannot extend time if it would cause prejudice or detriment not able to be remedied by an order for costs or damages.3 The Tribunal has previously considered the principles to be considered in exercising the discretion.4 Whether a satisfactory explanation or good reason is shown for the delay [8] Ms Brown elected not to apply to review the Commission’s decision at the time of receiving it and instead commenced proceedings against the builder claiming 156 items of defective work. These claims were pursued through to an appeal.5 Ms Brown does not explain why she chose that course as distinct from applying to review the Commission’s decision other than stating that she was unfamiliar with the processes and procedures and has not been able to afford legal assistance. [9] It is not uncommon in this Tribunal for a party in Ms Brown’s position to commence review proceedings and request they be ‘put on hold’ until contractual proceedings against the builder are determined. [10] The Tribunal delivered its original decision in the domestic building disputes jurisdiction on 3 February 2012. The Tribunal ordered the builder to rectify some of the defects claimed, being all the defects accepted as defects by an inspector employed by the Commission6 who provided a report to the Tribunal. The inspector also identified that some of the claimed defects were within acceptable industry standards and so not defects in his opinion and other claimed defects were assessed by the inspector as ‘contractual’ i.e. work which was claimed to not have been performed in accordance with the contract. 1 Hunter Valley Developments v The Honourable Barry Cowen, Minister for Home Affairs and Environment (1984) 3 FCR 344. 2 QCAT Act s 61(1). 3 Ibid s 61(3). 4 Cardillo v Queensland Building Services Authority [2011] QCAT 574; Molier v Body Corporate for Q1 CTS 34498 [2012] QCATA 8. 5 BDL181-11; APL035-12. 6 Then known as the Queensland Building Services Authority. -- 3 of 6 -- 4 [11] Ms Brown did not provide to the Tribunal any expert evidence in relation to the items found not to be defects by the inspector. The Member accepted the inspector’s evidence as it was the only independent evidence as to quality of the work. The Appeal Tribunal found that he was entitled to do so. [12] The Appeal Tribunal delivered its decision on 9 October 2012 which largely confirmed the original decision. There has been a delay between the handing down of the Appeal decision and the commencement of these proceeding of about 12 months. [13] Having pursued the builder for defective work Ms Brown was dissatisfied with the outcomes of that process and now seeks the same or at least very similar issues to be ventilated through the review process. [14] There is some explanation of the delay but no specific explanation for the delay since the handing down of the Appeal decision. Length of the delay [15] The Tribunal has previously accepted that a short delay is usually easier to excuse than a long one.7 On any view the delay here is lengthy. [16] There is no evidence as to when the 2011 Decision was received by Ms Brown. However it appears from the facsimile transmission report dated 6 July 20118 that Ms Brown had received it by that time. In all probability a review ought to have been commenced no later than late July 2011.9 As stated earlier Ms Brown commenced this review application on 14 October 2013, well in excess of 2 years later. Any prejudice to other parties [17] If an extension of time is allowed the builder and the Commission may suffer prejudice. [18] The Commission submits that in so far as the time for directing the rectification of category one defects has not yet expired there would not be prejudice to either the builder or the Commission. [19] If an extension of time is granted it is likely that the builder who has participated in the domestic building dispute proceedings through to an Appeal Tribunal decision will most likely become involved to some extent in these proceedings, possibly as a party. While a costs order might ameliorate some prejudice it will not address all of the prejudice. 7 CMC v Chapman & Ors [2011] QCAT 229. 8 Attachment to the Application to review dated 14 October 2013 (page prior to the document identified as Appendix 4). 9 28 days from receipt of the decision. -- 4 of 6 -- 5 [20] In any event the absence of prejudice does not in itself justify the exercise of the discretion.10 The likelihood of success if leave to commence is granted [21] Having had the opportunity to ventilate the allegations of defective work both before the Tribunal at first instance and the Appeal Tribunal I find that there are not good prospects of obtaining a different outcome in these proceedings. [22] In any review by this Tribunal of a decision of the Commission the purpose is to produce the correct and preferable decision by way of a fresh hearing on the merits.11 [23] The Tribunal may: a) confirm or amend the decision; b) set aside the decision and substitute its own decision; or c) set aside the decision and return it the decision – maker.12 [24] In conducting the review, the Tribunal has the functions of the original decision maker and there is no presumption that the original decision is correct.13 [25] Another factor to be considered is that the Tribunal standing in the Commission’s shoes is required to consider whether it would be unfair to direct a party.14 The builder has already had a determination in this Tribunal as to the 156 claimed defects. This prior determination would weigh in favour of it being ‘unfair’ to issue a direction in respect of those items. [26] I note that the Commission’s decision of 2 September 2013 relates to Ms Brown’s complaint dated 23 May 2013 and that the Commission in an email dated 3 June 201315 clearly stated that any matter contained in the complaint that had previously been dealt with by the Tribunal, the matter investigated by the Certification division and items that were considered contractual would not be investigated as part of that complaint. Is it in the interests of justice to grant the extension? [27] It is necessary to analyse the above factors and consider them in combination. On balance the factors do not support the exercise of the discretion to extend time in respect of the 2011 Decision. 10 Harburg v Queensland Building Services Authority [2003] CCT Q068-03 (5 August 2003). 11 QCAT Act s 20. 12 Ibid s 24. 13 Ibid s 19, s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9]. 14 Queensland Building and Construction Commission Act 1991 (Qld) s 72(14). 15 SOR45. -- 5 of 6 -- 6 2014 Decision [28] There is no evidence of when Ms Brown received this decision. It is likely that the time for commencing a review application expired by mid February 2014. [29] The Commission accepts that although Ms Brown did not commence a review application within 28 days of receiving the 2014 Decision, her statement dated 27 January 2014 in these proceedings ‘shows an intention to include the 2014 Decision’ as part of the review proceeding she had commenced in October 2013 and that she was disputing the decision. [30] The delay is relatively short. On becoming aware that not all decisions of the Commission were necessarily regarded as part of the proceedings Ms Brown took steps to clarify that she sought a review of this decision.16 [31] The 2014 Decision relates to the conduct of the certifier in relation to the Bushfire Attack level (BAL) of the dwelling. The BAL was not an issue determined in the proceedings against the builder as Ms Brown attempted to introduce it as a late issue and it was not permitted.17 The certifier was not a party to the earlier proceedings. [32] Having regard to all of the factors I find that it is appropriate to exercise my discretion to extend time in respect of the 2014 Decision. [33] Given the 2014 Decision relates to the certifier and not the builder I accept the Commission’s submission that a separate review application should be filed by Ms Brown. 16 Application for Miscellaneous matters filed 11 April 2014. 17 Decision Senior Member Stilgoe dated 24 January 2014. This decision was not appealed. -- 6 of 6 --