Domestic Maintenance Pty Ltd v Queensland Building Services Authority [2012] QCATA 106

CITATION: Domestic Maintenance Pty Ltd v Queensland Building Services Authority [2012] QCATA 106 PARTIES: Domestic Maintenance Pty Ltd (Applicant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: APL447-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon J B Thomas, Member DELIVERED ON: 19 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant's application for leave to appeal is dismissed; 2. The tribunal’s order of 17 October 2011 in QCAT proceeding GAR113-11 is confirmed; 3. The applicant's application to extend time for commencement of proceedings is dismissed. CATCHWORDS: Building work – "Tribunal work‖ – direction by QBSA to rectify – delay by applicant builder in seeking review – reviewable decision – circumstances when the tribunal "must not review" decision under s 86(2) of QBSA Act – whether QCAT has jurisdiction to extend time under QCAT Act, s 61 – whether time runs only after provision of full reasons by QBSA – effect of section 157 of QBSA Act – jurisdiction of QCAT to deal with matter – appeal Queensland Building Services Authority Act 1991, ss 86(2), 157 Queensland Civil and Administrative Tribunal Act 2009, s 61 -- 1 of 7 -- 2 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 (QCAT Act). REASONS FOR DECISION [1] The appellant (Domestic Maintenance Pty Ltd) will be referred to as ―the builder‖ and the respondent as ―the QBSA‖. [2] The builder is appealing against the dismissal of its application to QCAT to review a direction issued by the QBSA to rectify certain building work. The basis of the dismissal was lack of jurisdiction. [3] It is common ground that the builder’s application to QCAT was out of time, and that the builder needed to obtain an extension from QCAT to enable the review to proceed. The dismissal of the builder’s application for review was based on the ground that in the circumstances QCAT has no jurisdiction to review the direction to rectify, or to extend time for reviewing it. Jurisdiction [4] Prima face QCAT has jurisdiction to review any decision of the QBSA to direct the rectification of ―Tribunal work‖ as defined in sections 75 and 76 of the Queensland Building Services Authority Act 1991 (―the QBSA Act‖). [5] Section 86 of the QBSA Act relevantly provides: ―86 Reviewable decisions (1) The tribunal may review the following decisions of the authority— … (e) a decision to direct or not to direct rectification or completion of tribunal work; …‖ [6] However section 86(2) explicitly prohibits any such review in prescribed circumstances. Relevantly it states: ―(2) The tribunal must not review the following decisions of the authority— (a) a decision to recover an amount under section 71; (b) a decision to direct rectification or completion of tribunal work by a building contractor and any finding by the authority in arriving at the decision if— (i) 28 days have elapsed from the date the direction to rectify or complete was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision; and (ii) the authority has— (A) started a disciplinary proceeding against the building contractor by an application under division 4; or -- 2 of 7 -- 3 (B) served a notice on the building contractor advising a claim under the statutory insurance scheme has been approved in relation to tribunal work stated in the direction; or (C) started a prosecution, or served an infringement notice, for an offence against section 72(10);‖ [7] Section 87 provides: “Application for review A person affected by a reviewable decision of the authority may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.‖ [8] It will be noted that section 87 does not provide any time limit for the commencement of the review in QCAT, but section 86(2)(b) carries dire consequences if the application is made after 28 days have elapsed. [9] The actual prescription of time for commencement of the QCAT review appears in the Queensland Civil and Administrative Tribunal Act 2009 (―the QCAT Act‖), section 33(3) of which prescribes 28 days. Power to extend time is given to the Tribunal under section 61(1) of the QCAT Act 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.” [10] The power in section 61(1)(a) to extend any time limit fixed by an enabling Act is to some extent circumscribed by sections 6 and 7 of the QCAT Act, in particular section ss 6(4), 6(7)(a), 6(7)(b), 7(1) and 7(2). [11] Relevantly section 7 of the QCAT Act provides: “7 Application of Act if modifying provision in enabling Act (1) This section applies if a provision of an enabling Act (the modifying provision) provides for— (a) the tribunal’s functions in jurisdiction conferred by the enabling Act; or (b) a matter mentioned in section 6(7). (2) The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.‖ Jurisdictional facts [12] The relevant direction to rectify was in the form of a notice issued by the QBSA dated 30 July 2010. It directed the builder to carry out specified work within 28 days. [13] On 16 September 2010, subsequently to the expiry of the 28 day period, an infringement notice was served on the builder. -- 3 of 7 -- 4 [14] On 24 March 2011 the QBSA commenced disciplinary proceedings against the builder. [15] On 21 April 2011 the builder filed its application to review the infringement notice decision. That application was dismissed by a QCAT Member on 18 October 2011. The present appeal is against that decision. Builder’s submissions [16] The builder in a 52 page submission, has raised a number of issues that go to the merits of whether the direction to rectify was justified. These include claims that the relevant subsidence was caused by the acts of others, that the directed rectification is impossible, and that the defects are the direct result of incompetent work performed by two building contractors earlier on the site. [17] These, and other points, raise matters of concern, and if shown to be of substance, would be relevant matters of defence in any disciplinary proceedings, assuming that such proceedings are continued. However they are not relevant to the question whether QCAT has jurisdiction to conduct a review. [18] Other submissions of the builder include that the builder is a ―trade contractor‖ as distinct from a ―building contractor‖; that consequently it is not liable for any subsidence that occurred; that the QBSA decision maker wrongly treated the work as ―assessable development‖ instead of ―exempt development‖; that the builder was not informed at any stage that the site was a fill site; that the pool shell was already in place and that the builder was not provided with any data suggesting the existence of any foundation problem. The builder also complains that the direction to rectify did not contain adequate reasons for the decision and that it fails to set out any findings on the material questions of fact. I have mentioned these matters merely to indicate that there are some serious questions that have been raised, and that in the absence of any serious non- compensable prejudice to the QBSA I may have been inclined to grant an extension of time if there were jurisdiction to do so. [19] However such considerations are in vain if QCAT has no jurisdiction to conduct any review of the decision of 30 July 2010. Discussion on issue of jurisdiction [20] Plainly the events that have happened bring the matter within section 86(2) of the QBSA Act. When such circumstances exist the section explicitly states that the Tribunal ―must not review‖ the decision. [21] It is true that QCAT has jurisdiction to extend time for reviews, and that the QBSA Act does not impose an actual time limit for commencement of a review under sections 86-87. However, even assuming that QCAT has jurisdiction to extend time, it would be absurd to extend time for a review that the Tribunal is prohibited from conducting. -- 4 of 7 -- 5 [22] The builder referred to its statutory right under section 157 of the QCAT Act to be given reasons for the decision and contended that ―the 28 days should begin on the day, the relevant day, that adequate information was provided to (the builder) in order for (the builder) to decide whether to rectify or to seek review.‖ [23] The notice in question referred to an ―inspection report detailing the BSA's assessment of the owner’s items of concern‖, and asserted that ―the evidence relied upon in making this decision has been previously provided to you‖. [24] The builder claims to have asked for a copy of the engineering report obtained by the QBSA by an email of 21 July 2010, and that the report was not provided until after the infringement notice issued. This, the builder claims, means that time does not begin to run until after it received the engineering report. This brings into play sections 33(4), 157 and 158 of the QCAT Act. [25] Section 157 of the QCAT act provides 157 Information notice to be given (1) The decision-maker for a reviewable decision must give written notice of the decision to each person who may apply to the tribunal for a review of the decision. (2) The notice must state the following— (a) the decision; (b) the reasons for the decision; (c) the person has a right to have the decision reviewed by the tribunal; (d) how, and the period within which, the person may apply for the review; (e) any right the person has to have the operation of the decision stayed under section 22. (3) It is sufficient compliance with this section for the decision-maker to give the person, as required under the enabling Act, a written notice stating the matters mentioned in subsection (2)(a) to (e). (4) A failure to comply with this section does not affect the validity of the reviewable decision. [26] The builder’s request does not appear to amount to an application ―for a written statement of reasons for the decision under section 158‖ within the meaning of those words in section 33(4)(b) of the QCAT Act. The builder was no doubt attempting to gather evidence relating to the dispute, but it does not amount to an application ―for a written statement of reasons for the decision‖ under section 33(4)(b) or section 158. [27] The effect of section 157 is problematical. It deals with the notice that a decision maker must give to the recipient of the decision subsection 2 requires that the notice must state the decision and the reasons for the decision. It is not entirely clear whether this section is intended to impose a duty upon the makers of all reviewable decisions under all enabling Acts at the time when the original decision is given, or alternatively whether it applies to the time after commencement of a review. The section refers to -- 5 of 7 -- 6 persons ―who may apply … for a review‖, and to that extent speaks of a situation before commencement of any review. It is therefore arguable that this section obliges all decision makers of reviewable decisions to give reasons with their decisions conformable to section 27B of the Acts Interpretation Act 1954, and if they have not provided such reasons at that time, obliges them to provide reasons when requested for the purposes of the review. In that way the section has a continuing operation. Importantly however, subsection (4) provides that ―a failure to comply with this section does not affect the validity of the reviewable decision.‖ [28] It follows that even if the QBSA’s original decision and notice were deficient in stating reasons, and even if the engineering report ought to have been supplied at that time, the reviewable decision remained valid, and its date for the purposes of application of these sections remains as 30 July 2010. [29] For this reason, and for the further reason given by the learned QCAT Member pointing out that the request for the engineer’s report preceded the direction to rectify, and that no relevant request was made under section 33(4)(b), I reject the builder’s submission that its application for review was within time. It may also be noted that the builder’s application to QCAT was not made until 21 April 2011, many months after the admitted receipt by the builder of the engineering report. [30] The requirements of section 86(2) of the QBSA Act are mandatory. If 28 days have elapsed from the date of the direction to rectify, and a supervening event such as a disciplinary proceeding against the builder has occurred, QCAT simply has no jurisdiction to review the matter. In such circumstances the builder can not be a ―person who may apply to a Tribunal for a review of a decision‖ under section 157(1), and the decision maker is not under any further obligation under that section to give a statement of reasons for the decision. [31] I agree with the following statement of the learned Member in the decision the subject of the present appeal: ―There is simply no scope for the exercise of discretion pursuant to section 61 of the QCAT Act where the exercise of such would amount to a contravention of the clear injunction against such conduct set out in section 86(2) of the QBSA Act.‖ [32] As QCAT lacks the jurisdiction to conduct the review which the builder seeks, it is highly doubtful that it has any power under section 61 of the QCAT Act to extend time. It would be the extension of a time limit fixed for the start of a prohibited proceeding. It is difficult to see how such a power could be ancillary to a jurisdiction that does not exist, and, as earlier observed, it would be absurd to extend time for a review that the tribunal is prohibited from conducting. Conclusion -- 6 of 7 -- 7 [33] In the circumstances QCAT has no jurisdiction to conduct the review sought by the builder. The application to review the QBSA’s decision of 30 July 2010 was rightly dismissed. The appeal should be allowed and the QCAT Member’s decision of 17 October 2011 should be confirmed. -- 7 of 7 --