Bigby v Queensland Building and Construction Commission [2014] QCAT 169

CITATION: Bigby v Queensland Building and Construction Commission [2014] QCAT 169 PARTIES: Graham Bigby (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR076-14 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gardiner DELIVERED ON: 1 May 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to extend a time limit is dismissed. CATCHWORDS: PROCEDURE – Extension of time to lodge a review – where applicant sought extension of time to file a review application – whether extension should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61 Cardillo v Queensland Building Services Authority [2011] QCAT 574 followed 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] On 26 February 2014 Mr Graham Bigby filed an application to review a decision of the Queensland Building Services Authority (as it then was) to refuse an insurance claim made by Mr and Mrs Bigby under the statutory insurance scheme. -- 1 of 8 -- 2 [2] In the rejection letter to Mr and Mrs Bigby, the Commission says that the work was performed by the builder Daniel Kondra at their property at the Gap. This work was performed in 2003 and completed, on the Commission’s reckoning, on 6 August 2004. [3] In 2008 a damaging storm swept through the Gap and the Bigbys’ house suffered critical damage. A complaint form was lodged with the then Authority on 7 August 2013. [4] The Commission says that it could not have issued a direction to rectify to Mr Kondra as more than six years and three months has passed. The Commission says that Mr and Mrs Bigby are unable to claim under the insurance policy for the work as the time for rectification expired. [5] The solicitors for Mr Bigby have filed an application to extend time to within which to file a review of the denial. [6] The original letter to Mr Bigby was dated 28 August 2013 and it is common ground that the letter was sent to the wrong address for Mr Bigby. [7] However Mr Bigby’s original application also had an email address on it which was the solicitors for the Bigbys. [8] It is conceded by the solicitors for Mr Bigby that the denial letter was also sent to the email account of Mr Heath, the solicitor having conduct of this matter on 18 September 2013. [9] Mr Heath says he was travelling interstate at the time and due to a clerical error within his office, the denial letter was not downloaded and placed on file for Mr Heath’s attention. [10] Mr Heath says he was not aware that the Commission had made a decision in respect of Mr Bigby’s claim and in fact wrote to the Commission on 15 January 2014 asking for information. After the Commission’s response to the 15 January letter, Mr Heath reviewed his email inbox and became aware that he received the email. [11] Mr Heath says that Mr Bigby should have the advantage of having the 28 days run for the filing of a review application from when he became aware of the email on 31 January 2014. [12] The Commission says while they agree that they sent the original letter to the wrong address, they sent the email to the email address given in the application. Issue [13] The matter for determination by the Tribunal is whether the Tribunal should grant an extension of time in the circumstances of this particular matter. -- 2 of 8 -- 3 [14] The application is pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [15] The factors that are to be considered in respect of an application to extend time have been summarised in the leading case of Cardillo v Queensland Building Services Authority.1 They are: 1. Has a satisfactory explanation been given to account for the delay; 2. The strength of the case the applicant will bring if allowed to proceed; 3. Will other parties be prejudiced; 4. Has the delay been short or long; and 5. Is it in the interests of justice to grant the extension. Has a satisfactory explanation been given? [16] The solicitors for Mr Bigby submit that the sending of the letter of denial to the wrong postal address caused some delay through the conduct of the Commission. [17] Notwithstanding Mr Heath’s concession that he received the email on 18 September 2013, Mr Heath seems to be highlighting a difference between the non-reception of the denial letter by Mr Bigby by post and the letter being sent to Mr Heath’s email address, although not read by him at the time. [18] The Commission says that even if the original posting was not proper notification (and it appears that this is the case because the address was incorrect) the insurance decision notice was sent to the nominated email address on 18 September 2013. It is, the Commission submits, not effectively their responsibility to ensure that somebody reads the email. The email was sent to the address nominated and says the Commission that is the end of the matter (my paraphrasing). [19] The Commission says the applicant has effectively received notice of the insurance decision on 18 September 2013. The application for review was not filed until 26 February 2014 over five months the Commission says after the applicant was notified. [20] The Commission has a point. It is not the Commission’s responsibility nor this Tribunal’s, to ensure that where a nominated email address is provided, emails to that address (when properly sent) are read and actioned. [21] Mr Heath says that this was a clerical error while he was interstate. [22] I am not satisfied that this adequately explains the overlooking of this email. I am assuming that even if Mr Heath does not himself open all of 1 [2011] QCAT 574; subsequently affirmed in Molier v The Body Corporate for Q1 CTS 34498 [2012] QCATA 8. -- 3 of 8 -- 4 the emails in his inbox, then someone with appropriate responsibility and ability to identify the importance of communications received would be acting on his behalf in that regard. [23] The Commission points particularly to the comments of the learned Member in Cardillo2 It has been said that it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. Further it has also been said that it is a precondition to the exercise of discretion in the applicant's favour that the applicant for extension show an acceptable explanation of the delay. …3 [24] The Commission submits that the applicant has failed to provide an explanation for a delay and accordingly the prima facie rule should apply. [25] I am satisfied that no satisfactory explanation has been given for the clerical error arising in Mr Heath’s office as the reason for the late reading of the email and the inability of it to come to Mr Heath’s attention. Strength of the case the applicant will bring [26] Mr Heath’s submissions say that the Commission’s reasons for denying Mr Bigby’s claim can be summarised as follows: a) The claim was not submitted during the currency of the policy insurance held by Mr Kondra which expired on 6 August 2010; b) The statutory insurance policy does not respond in circumstances where there is another insurance policy and Mr and Mrs Bigby held a home insurance policy at the time of the storm; c) The insurance policy does not respond in circumstances where the rectification work was undertaken without the prior approval of the Commission; and d) The policy does not respond in circumstances where damage was caused by or contributed to by an excluded storm event. [27] Mr Heath submits that the Commission was engaged at an early juncture in the investigation of the damage caused following the storm and of the allegedly defective work performed by Mr Kondra. Evidence of this can be seen in the disciplinary proceedings before this Tribunal against Mr Kondra himself. Mr Heath submits the Commission was aware of the alleged defects in the construction of the dwelling prior to the expiry of the policy because of the disciplinary action. [28] Mr Heath concedes that Mr and Mrs Bigby did hold an insurance policy at the time of the storm but says that the risk insured under that insurance policy was not the same risk as that insured under the statutory insurance policy held by the Commission. He says that the double insurance 2 At [33]. 3 Lucic v Nolan [1982] FCA 217; Hunter Valley Developments Pty Ltd v Barry Cohen Minister for Home Affairs [1984] FCA 176 at [18]. -- 4 of 8 -- 5 exclusion clause in the statutory policy is not triggered so as to exclude the applicant’s claim. [29] Mr Heath submits that the Commission was aware in its investigations of Mr Kondra that the dwelling had been demolished and was in the process of being reconstructed prior to the expiry of the insurance policy. Mr Heath seems to infer this meant the Commission had given some form of prior approval to that process. [30] Finally, Mr Heath says that it is arguable the damage was not caused by the storm but rather by the alleged defective construction of the dwelling by Mr Kondra, with the storm simply being a triggering event. The policy is therefore not excluded because of a storm event. [31] The Commission submits that Mr Bigby has no real prospects of success if allowed to proceed. [32] The Commission says that the claim was not submitted until three years after the insurance policy had expired and that the home had a higher insurance policy that was in place at the time of the loss. The dwelling was demolished and reconstructed without the Commission’s approval and the storm was a contributor, which is specifically excluded under the policy. [33] The Commission points to clause 5.1 of the insurance policy which requires written approval of the Authority prior to work being completed or rectified. The Commission says no such written approval was given, particularly as the house was completely demolished and rebuilt. [34] Clause 5.4 of the insurance policy says that the insured is not entitled to pay for loss where the loss is caused by or contributed to by a storm. [35] Referring to clause 5.5.4 of the insurance policy, the Commission asserts that the loss was contributed to (my emphasis added) by an excluded event (the storm). The Commission says that contributed to by the storm requires a lesser causal link then a loss that must be caused or occasioned by the excluded event. In this regard, the Commission says the loss was contributed by the storm and therefore the exclusion in paragraph 5.4 is enlivened. [36] The Commission further says that in any event, the applicant has no prospects of success because there was another insurance policy in place at the time as is contemplated by clause 4.6 of the Commission’s insurance policy. [37] The Commission says while this home insurance policy was in place at the time of the loss, the applicants failed to notify the Commission in writing of the home insurance policy and also failed to identify that there was any excess payable in breach of clause 4.6 of the statutory policy. -- 5 of 8 -- 6 Discussion [38] I accept there was another insurance policy over the home. I also accept that the home was demolished and rebuilt without the Commission’s approval in writing in breach of clause 5.1 of the insurance policy. [39] I accept that the Commission was aware of the alleged defects in the construction of the dwelling prior to the expiry of the policy because of the disciplinary action against Mr Kondra but I also accept that the storm contributed to the loss by the homeowners which appears to enliven the exclusion in paragraph 5.4 of the policy. [40] It also appears that the home owners have substantial difficulties with the terms of clause 4.6 of the policy where other insurance policies exist and the Commission is only required to pay the amount in excess of any amount payable under that policy. [41] On balance, I am not satisfied the homeowners have a strong case in these circumstances. Will other parties be prejudiced [42] The Commission says it will be prejudiced should the extension of time application be granted because: i) the Bigbys’ insurance policy was in place at the time of the loss; ii) the rectification of the dwelling has already occurred; and iii) the Bigbys have commenced proceedings in the Supreme Court to cover a substantial amount of money from the builder whilst simultaneously attempting to recover under the statutory insurance fund. [43] So far as the Commission is concerned, the applicant had been notified for a significant period and took no steps. [44] Mr Heath on behalf of Mr Bigby said that the Commission has suffered no prejudice as a result of the delay in these circumstances due to its involvement with the prosecution of Mr Kondra and the information it gained from that process. [45] Mr Heath says that the Commission has an intimate knowledge of the manner of construction and the alleged deficiencies in the construction of the dwelling by Mr Kondra. Discussion [46] I am not satisfied the Commission suffers loss if time is extended. I agree that the Commission had knowledge of the circumstances surrounding this house because of the prosecution of Mr Kondra and would not have been taken by surprise by the claim. -- 6 of 8 -- 7 The length of the delay [47] Depending on the version of events the delay in filing the review was between three and five months. In the greater scheme of things, this is not a lengthy delay. [48] I am not in these circumstances, satisfied that three to five months is such a long time as to prejudice either party. I consider it to be a relatively short delay in the nature of these proceedings and I give no importance to this particular factor other than to note that the delay between notification and the filing of the extension application was somewhere between three and five months (depending on the view of the party concerned). Interests of justice [49] The Commission submits that it is not in the interests of justice to grant the extension. The Commission says: i) the applicant had the opportunity to review the decision and failed to do so within the prescribed time limits; ii) the Commission is now unfairly prejudiced; and iii) the applicant cannot now say he is unfairly prejudiced if he is unable to challenge the decision. [50] The Commission says Mr Bigby has not provided an adequate explanation for the delay not only in regard to the application for review but also for the application to extend time and has limited prospects of success if allowed to proceed. [51] Mr Bigby’s solicitors submit that it is in the interests of justice that the Commission’s decision should be reviewed in circumstances where the Commission has considered it appropriate to bring disciplinary action against Mr Kondra the builder, especially given that these proceedings were successful. [52] Mr Heath points out that the delay in making this application in excess of three months was caused by a clerical error and contributed to by the Commission. [53] Mr Heath also says that continued correspondence with the Commission and a request for policy terms on 7 August 2013 demonstrate that Mr Bigby was motivated to receive the Commission’s decision and to consider any potential denial of his application. The Commission, the applicant says, was essentially put on notice that Mr Bigby would carefully consider the reasons for any denial with reference to the policy terms delivered to Mr Heath and that the finality of any decision might be contested. -- 7 of 8 -- 8 Discussion [54] Overall, I do not consider the applicant has provided a satisfactory explanation for the delay arising for the clerical error in Mr Heath’s office. [55] More importantly, I am not satisfied Mr Bigby has a strong case under the terms of the insurance policy. There was a second policy, the storm contributed to the damage of the home and the dwelling was completely demolished and reconstructed without the Commission’s written approval. [56] I am not satisfied the Commission suffers loss if time is extended and I give no importance to be a relatively short delay in the general nature of these proceedings. [57] Because in particular I am not satisfied Mr Bigby has a strong case under the terms of the insurance policy, I do not propose to exercise my discretion to extend time. Instead I rely on the prima facie rule as enunciated in Cardillo that proceedings commenced outside the prescribed period will not be entertained. [58] Mr Bigby’s application to extend a time limit is dismissed. -- 8 of 8 --