Domestic Maintenance Pty Ltd v Queensland Building Services Authority [2011] QCAT 736

CITATION: Domestic Maintenance Pty Ltd v Queensland Building Services Authority [2011] QCAT 736 PARTIES: Domestic Maintenance Pty Ltd (Applicant) V Queensland Building Services Authority (Respondent) APPLICATION NUMBER: GAR113-11 MATTER TYPE: Building Matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Michael Howe, Member DELIVERED ON: 17 October 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Application to Review a Decision GAR113-11 dismissed. CATCHWORDS: Building and Construction – Application to review a decision of the Queensland Building Services Authority – application out of time – whether s61 QCAT Act relief from procedural requirements able to be utilised – mandatory exclusion provisions of s86(2) Queensland Building Services Authority Act 1991 Queensland Civil and Administrative Tribunal Act sections 33(3), 33(4), 61(1) Smith v Queensland Building Services Authority [2010] QCAT 448 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Domestic Maintenance Pty Ltd completed building work for the owner of a property at Kedron on 14 August 2009. The building work involved the removal of an existing concrete slab and the supply and laying of approximately 46 square metres of new slab adjacent to a swimming pool and the laying of supplied pavers. The cost of the work was $9720. [2] In or about February 2010 it was noticed that the concrete slab around the pool appeared to have sunk. The owner complained to the Building Services Authority. An Authority building inspector inspected the site in April 2010. The Authority obtained a report from consulting engineers in June 2010. By letter dated 28 June 2010 the Authority wrote to Domestic and requested that Domestic undertake rectification work at the property. [3] No action was taken by Domestic within the requested 28 days, and therefore the Authority issued a Direction to Rectify defective building work on 30 July 2010 to be completed within 28 days. [4] The 28 day period expired on 30 August 2010. [5] No rectification work having been performed by Domestic within that period, on 16 September 2010 the Authority issued an Infringement Notice to Domestic based on its failure to rectify defective building work required by a direction of the Authority. [6] On 24 March 2011 the Authority commenced disciplinary proceedings in the Tribunal against Domestic. [7] On 21 April 2011 Domestic applied to the Tribunal for review of the Direction to Rectify dated 30 July 2010. At the same time Domestic applied to the Tribunal to have the time required within which the Application for Review should be started extended to date of filing, and sought orders to have the disciplinary proceedings and the review proceedings consolidated and heard together. The Queensland Building Services Authority Act 1991 [8] The Queensland Building Services Authority Act 1991 empowers the Tribunal to review a decision of the Authority to direct or not to direct rectification or completion of tribunal work (building work)1. The Tribunal is not permitted, however, to review a decision of the Authority directing rectification of tribunal work if 28 days have elapsed from the date the direction to rectify was served on the builder, the builder has not applied within that time for a review of the decision and the Authority has started disciplinary proceedings against the builder or served an infringement notice for an offence against s72(10).2 1 Section 86(1)(e) 2 Section 86(2)(i) and (ii) -- 2 of 4 -- 3 The Application to Dismiss [9] The Authority has now applied to have Domestic’s Applications dismissed and that has come before me for decision. The Authority says Domestic is out of time, there is no power in the Tribunal to extend time for review as sought and the Tribunal is not seized of jurisdiction in the matter. [10] The Direction to Rectify was issued on 30 July 2010. Domestic had until 30 August 2010 to apply to the Tribunal for review of that decision. It did not do so, and Domestic did not seek review before an Infringement Notice was issued on 16 September 2010. Statement of Reasons [11] Domestic submits its application for review was within time. It mounts an argument on a rather selective examination of the relevant provisions of the QCAT Act dealing with request for a statement or reasons following a reviewable decision. It says that it asked for a copy of the Engineering report obtained by the Authority by email request dated 21 July 2010, and that report was not provided until after the Infringement Notice issued. It’s argument then seems to be that until the statement or reasons as requested was provided, the time to apply for review was extant. [12] The email request was not a request for a statement of reasons concerning the reasons for decision. It preceded the Direction to Rectify. It followed the Authority’s request for the performance of rectification work. In the letter of request the Authority explained the purpose of the request was to allow the builder to rectify defective work “to avoid receiving a formal direction” with attendant penalties consequent on that. [13] The QCAT Act requires an applicant for review to apply within 28 days of the relevant day3. The relevant day for the purposes of Domestic was the earlier of the day Domestic was notified of the decision or if a request was made for a statement of reasons for the reviewable decision the day the written statement was either given or required to be given4. No such request was made within 28 days of the reviewable decision. It is quite clear from the relevant provisions that an application must be brought within the specified 28 days, regardless of whether a statement of reasons is given or not. Domestic’s argument on this point is therefore fatally flawed. 3 Section 33(3) 4 Section 33(4) -- 3 of 4 -- 4 Extension of Time [14] Domestic alternatively submits the Tribunal should extend the time for review through the general Tribunal power to extend a time limit fixed for the start of a proceeding by an enabling Act5. Domestic explains in its submissions supporting its Application that it was not conversant with the requisite procedure of the Tribunal and in giving notice to the Authority that it elected to have the Infringement Penalty Notice determined by the Tribunal, it believed the matter of whether the work it performed was defective (which it denies) would thereupon be open to consideration. [15] The power identified by Domestic which resides in the Tribunal is one for relief from procedural requirements. It says that in the heading to section 61 of the QCAT Act. By contrast, s86(2) of the QBSA Act is a statutory imperative that directs the tribunal not to exercise its powers of review in the circumstances prescribed by that provision. The imperative is mandatory. Amongst the powers of the Tribunal that cannot be exercised because that would offend s86(2) of the QBSA Act are the powers to grant relief from procedural requirements. [16] Regardless how sympathetic one may be to Domestic’s cause, there is simply no scope for the exercise of discretion pursuant to s61 of the QCAT Act where the exercise of such would amount to a contravention of the clear injunction against such conduct set out in s86(2) of the QBSA Act. Once s86(2) circumstances arise the tribunal has no jurisdiction associated with review that might be the subject of procedural consideration or application. [17] The Tribunal has concluded this previously.6 [18] Accordingly the Authority’s submission in this matter is correct and the appropriate order should be that Application to Review a Decision GAR113-11 should be dismissed. Given that order there is no necessity to make further orders as to joinder of the review decision and the disciplinary proceeding. Orders [19] The following order should be made: 1. Application to Review a Decision GAR113-11 dismissed. 5 Section 61(1) Queensland Civil and Administrative Tribunal Act 2009 6 Smith v Queensland Building Services Authority [2010] QCAT 448 -- 4 of 4 --