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  • Unreported Judgment

Body Corporate for Alto Gladstone v Queensland Building and Construction Commission

 

[2020] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor [2020] QCATA 6

PARTIES:

Body Corporate for Alto Gladstone CTS 45291

(applicant\appellant)

 

v

 

Queensland Building and Construction Commission

(first respondent)

APPLICATION NO/S:

APL136-18

ORIGINATING

APPLICATION NO/S:

GAR118-18

MATTER TYPE:

Appeals

DELIVERED ON:

10 January 2020

HEARING DATE:

24 July 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The Tribunal’s orders numbered 2 and 8 dated 24 May 2018 are set aside.
  4. The following order is substituted:

The Body Corporate for Alto Gladstone must amend the following applications to reflect that the application relates only to the review of the decision of Queensland Building and Construction Commission dated 6 March 2018: 

  1. (i)
    its application to review filed in GAR 118-18; and
  2. (ii)
    its application for extension of time filed with that application to review a decision, by:

                         4.00pm on 31 January 2020.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – MATTERS OF PROCEDURE – GENERALLY – where applicant in original proceedings sought to review five decisions of the respondent in one proceeding – where review application for four of the decisions was filed out of time – where original decision maker determined the review was only to proceed in relation to one decision – where original decision maker dismissed application for extension of time for other decisions – whether original decision maker failed to properly identify all decisions sought to be reviewed – whether there was a breach of procedural fairness in original proceedings – whether multiple review applications can be made in one application to review a decision – whether leave to appeal should be granted – whether appeal should be allowed – whether appeal tribunal may decide question of statutory construction or whether question should be remitted to tribunal

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL --  PROCEDURE FOR MAKING APPLICATION FOR REVIEW –where question of statutory construction concerning whether review of multiple decisions may be sought in one application -- where legislative provisions in singular—whether provision in Acts Interpretation Act 1954 (Qld) displaced -- where time limits imposed in interests of justice 

Acts Interpretation Act 1954 (Qld) s 4, s 32C(a)

Queensland Building and Construction Commission Act 1991 (Qld) s 86, s 86(1)(e), s 86(1)(f)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), 17, s 18, s 19, s 21(1), s 24(1), s 31(1), s 31(2), 33, s 33(3), s 33(4), s 38(1), s 38(2), s 54, s 55, s 61

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 7

Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128

Coppens v Water Wise Design Pty Ltd [2013] QCATA 285

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Jensen v QBCC [2017] QCAT 232

McCrystal v QBCC [2018] QCAT 20

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Pickering v McArthur [2005] QCA 294

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

APPEARANCES &

REPRESENTATION:,

 

Applicant:

Mr C E Taylor of Counsel, instructed by Wilson Ryan Grose Lawyers

Respondent:

Mr T Schmitt of Counsel, instructed by the Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    The Body Corporate for Alto Gladstone CTS 45291 (‘the Body Corporate’) applied to review decisions of the Queensland Building and Construction Commission (‘QBCC’) dated 15 January 2016; 17 May 2016; 13 September 2016; 10 November 2016 and 6 March 2018. The application for review was filed together with an application for extension of time to review all of the decisions except the decision dated 6 March 2018.
  2. [2]
    At a directions hearing on 24 May 2018 an acting Senior Member made what were referred to as directions in the decision issued by the Tribunal, including the following:

2. The application to review a decision filed on 9 April 2018 will proceed as a review of the Queensland Building and Construction Commission’s decision of 6 March 2018 that it will not be issuing a direction to rectify to Head Constructions Pty Ltd.

….

8. The application to extend or shorten time filed on 3 April 2018 is       dismissed.

  1. [3]
    The Body Corporate filed an application for leave to appeal or appeal the decision of the Tribunal dated 24 May 2018 with respect to directions or orders numbered 2 and 8.
  2. [4]
    The grounds of appeal may be summarised as follows:
    1. (a)
      The Tribunal failed to properly identify, and did not take into account a material consideration, or alternatively made a mistake as to the fact, that the Body Corporate also sought to review the decisions of the QBCC of 15 January 2016, 17 May 2016, 13 September 2016 and 10 November 2016 and that a determination of those decisions was inextricably linked to the review of the decision dated 6 March 2018 as those decisions form the basis for the decision of 6 March 2018;

Further and/or alternatively, in doing so,

  1. (b)
    the Tribunal acted on a wrong principle;
  2. (c)
    The Tribunal failed to afford the Body Corporate procedural fairness by either seeking submissions from it or allowing it to be heard on the remainder of the application;
  3. (d)
    The Tribunal failed to address the remainder of the application that was before it and thus consider it in its entirety.
  1. [5]
    The appeal proceedings were heard by me on 24 July 2019. I directed the parties to provide further written submissions following the oral hearing, which they did on 2 August and 19 August 2019, respectively. In particular, they made submissions about whether, as a matter of statutory construction, one review application could be made in respect of the review of five separate purportedly reviewable decisions of the QBCC.
  2. [6]
    I say ‘purportedly reviewable decisions’ because there is an issue about whether each of the nominated decisions for review is a reviewable decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). I do not need to, and do not, decide that issue in these proceedings. These reasons for decision should not be interpreted to suggest otherwise.

Background

  1. [7]
    When an application for review is made outside of the legislatively prescribed time limits, an extension of time must be sought and obtained before the review application may proceed. If the application for an extension of time fails, that is the end of the proceeding. The review application technically need not be separately dismissed. Here, in the directions hearing, the review application was initially discussed and order 2 was made. Later, the application for extension of time was discussed, and was the subject of order 8.
  2. [8]
    There were no reasons given or requested by either party for the Tribunal’s decision of 24 May 2018.
  3. [9]
    A transcript is available. The solicitor for the Body Corporate (Mr Carey) was contacted by telephone by the Tribunal for the directions hearing. He advised that he had not received any correspondence from QCAT in relation to the directions hearing. The acting Senior Member’s response was to the effect that the file indicated the notice of the directions hearing had been emailed.[1] It transpired that the notice had been provided directly to the Body Corporate, and not separately to its legal representative.
  4. [10]
    The transcript includes the following:-

Senior Member:… So the first issue that needs to be determined is what is the reviewable decision and the date of the reviewable decision that the Applicant is seeking to review.[2]

Then later:

Senior Member: Okay. So what’s the date of the reviewable decision and the reviewable decision?

Mr Carey: Well, that is one of those dates. The other dates…

Senior Member: So what …

Mr Carey: …mentioned in the application…

Senior Member: So what was the date? Sorry, Mr Carey. I didn’t hear that.

Mr Carey: The date of – well there are a number of decisions, Member, as outlined in part B but the most recent of which is that one you just referred to. Sixth of March 2018, I believe it is.

Senior Member: Okay. So there’s a– so that’s – the email that was sent in by Wilson Ryan Gross Lawyers…

Mr Carey: yes

Senior Member: …attaches a letter dated 6 March…[3]

………..

Senior Member: …. Okay. So is that the decision the Applicant seeks to review in respect of this application to review?

Mr Carey: Yes, that’s correct.[4]

  1. [11]
    After some further exchange, the learned acting Senior Member said:[5]

So I’ll direct that the application to review a decision filed on 9 April 2018 – and stop me if I say something that’s not the case, Mr Carey, because I’m attempting to capture what you’ve indicated you client will be seeking to review.

So the application to review a decision filed on 9 April 2018 will proceed as a review of the Queensland Building and Construction Commission’s decision of 6 March 2018 to – that it will not be issuing a direction to rectify to Head Constructions Proprietary Limited.

  1. [12]
    Mr Carey does not suggest that that is not correct. Later in the directions hearing the acting Senior Member says as follows:[6]

Senior Member: …And given that it’s not necessary to extend the time for filing the application to review, Mr Carey, having identified that the reviewable decision is a decision of 6 March, would you agree that it’s appropriate to dismiss the application to extend time?

Ms O’Hanlon: Yes, the QBCC would.

Mr Carey: Yes, Senior Member.

  1. [13]
    The learned acting Senior Member then proceeded to make an order dismissing the application for extension of time in respect of the earlier four reviewable decisions identified in the application.
  2. [14]
    Before concluding, the acting Senior Member asks, “Anything further Mr Carey?”,[7] he responds:[8]

Mr Carey: No, thank you, Senior Member.

  1. [15]
    Shortly thereafter the directions hearing concludes.

Leave to appeal

  1. [16]
    The review proceeding has not been disposed of. It could be argued that the decisions embodied in 2 and 8 were directions of a procedural interlocutory nature, rather than orders. That said, directions or orders 2 and 8 effectively determined the review application in so far as it related to the QBCC decisions other than the decision dated 6 March 2018. The Body Corporate submits that those orders prevent the Body Corporate from bringing fresh applications for review in respect of the decisions (other than the decision dated 6 March 2018) on the basis that those applications were finally disposed of by the orders.
  2. [17]
    If they are not final decisions, leave to appeal is required. If they are final decisions, leave would only be required if the appeal grounds raise some issues of mixed law and fact.
  3. [18]
    Whether leave to appeal should be granted is to be determined according to established principles. It will usually only be granted when there is a reasonably arguable case of error and an appeal is necessary to correct a substantial injustice caused by the error.[9] It may also be granted in a case which is otherwise of general importance and a decision of an appeal body would be to public advantage.[10]
  4. [19]
    Having regard to the discussion below, the issues raised in the appeal are of general importance in respect of the process of making applications to the tribunal. Further, there is an arguable case of error which resulted in a substantial injustice to the Body Corporate which requires correction. To the extent that leave to appeal is necessary, it should be granted.

Was there a breach of procedural fairness?

  1. [20]
    Because of my conclusions, I propose to deal firstly with the argument made in the alternative, that the Body Corporate was not afforded procedural fairness in respect of the review application (in so far as it related to the QBCC decisions other than the decision dated 6 March 2018) and the application for extension of time.
  2. [21]
    The Body Corporate argues that it was not properly on notice of the directions hearing in which the orders sought to be impugned were made. In this regard, it submits that its address for service was its legal representative. The lawyers were not provided with the notice of the directions hearing: it was sent directly to the Body Corporate.
  3. [22]
    As a consequence, it submits, Mr Carey was unable to prepare for, or adequately address, the Tribunal in relation to the issues raised. Further, it submits that that Mr Carey’s apparent agreement to the decisions made cannot, in the circumstances, be understood such that the Body Corporate abandoned its review application in so far as it related to the QBCC decisions other than the decision dated 6 March 2018 and its application for extension of time. Mr Carey was unprepared for the Tribunal’s questions and the directions hearing generally.
  4. [23]
    The QBCC made no submissions in respect of this ground of appeal.
  5. [24]
    Having regard to the extract from the transcript referred to earlier, I accept that Mr Carey was surprised when contacted for the directions hearing. Parties would not necessarily be on notice of routine matters of a procedural nature to be discussion at a directions hearing. However, in respect of applications to be decided, the Tribunal makes directions in advance to give notice of its intention to determine the applications to accord parties with procedural fairness.
  6. [25]
    Here, I observe that the Tribunal made directions on 18 May 2018 to the effect that a directions hearing would be held on 24 May 2018 in the proceedings. The direction issued nominated the ‘Initiating document’ as the application for review and the application for extension of time. A notice also sent to the parties referred to a directions hearing being held on 24 May 2018. Neither the directions, nor the notice gave the parties notice that the Tribunal intended to determine at the directions hearing the application for review in so far as it related to the QBCC decisions other than the decision dated 6 March 2018 nor the application for extension of time. Therefore, even had they been provided to the Body Corporate’s legal representative, they would not have constituted notice that the application for review (in so far as it related to the QBCC decisions other than the decision dated 6 March 2018) and the application for  extension of time were to be heard and determined on 24 May 2018.
  7. [26]
    As discussed above, the review application (in so far as it related to the QBCC decisions other than the decision dated 6 March 2018) was made outside of the prescribed time frame, and would not usually be the subject of separate orders dismissing the review in as far as it related to the review of decisions made outside of the prescribed time limits, if the application for an extension of time to bring the applications failed. That said, order 2 may reasonably be interpreted, although not explicitly so framed, as an order effectively disposing of or dismissing the review application in respect of the decisions of the QBCC dated 15 January 2016; 17 May 2016; 13 September 2016; and 10 November 2016.
  8. [27]
    Even if order 2 is not interpreted to have amounted to an effective dismissal of the review application other than the review of the decision of 6 March 2018, order 8 dismissed the application for extension of time in respect of each of those other decisions. Thereby, they were concluded.
  9. [28]
    Having regard to the transcript, neither the application for review in so far as it related to the QBCC decisions other than the decision dated 6 March 2018, nor the application for extension of time, was in any proper sense ‘decided’ by the Tribunal following submissions from the parties. Rather, they were dismissed on the basis of apparent concessions of the Body Corporate’s legal representative. That said, the subject ‘directions’ or orders were not made by consent.
  10. [29]
    Procedural fairness is a flexible concept. However, one of the most certain rules is the hearing rule. Broadly, the hearing rule requires that a party be given a proper opportunity to present its case. This requires the giving of adequate notice to parties of applications to be decided and the case against it. Other requirements of the hearing rule do not need to be discussed here. 
  11. [30]
    No notice of the hearing of the application for extension of time (in respect of the review of the decisions of the QBCC dated 15 January 2016; 17 May 2016; 13 September 2016; and 10 November 2016), nor the review application (in so far as it related to the QBCC decisions other than the decision dated 6 March 2018) was given by the Tribunal to the Body Corporate. As a consequence, the Body Corporate was not afforded a proper opportunity to present its case. Accordingly, the hearing rule was not observed and the Tribunal failed to accord natural justice to the Body Corporate in making orders effectively finally disposing of the review application in respect of the decisions other than 6 March 2018.
  12. [31]
    In making these findings, I make the observation that it is not uncommon for matters such as those raised here to be addressed at a directions hearing and for concessions to be properly made that might affect the scope or course of an application before the Tribunal. In the usual course, if instructions weren’t held by a legal representative or proper notice had not been given, a legal representative for a party would make that submission. Directions would then be made for submissions to be delivered or filed. The Tribunal is entitled in the ordinary course to accept concessions made by a party’s legal representative.
  13. [32]
    Given the failure of the Tribunal here to give notice that the application for review, as far as it related to the decisions other than the decision of 6 March 2018, and the application for extension of time would be determined at the directions hearing,  procedural fairness was not observed. An injustice results if the Tribunal’s orders are allowed to stand and the Body Corporate is prevented in future from seeking extension of time to review the decisions other than the decision of 6 March 2018.
  14. [33]
    The Tribunal erred in this respect. The appeal should be allowed.

Did the tribunal fail to properly identify and take into account the material consideration or make a mistake of fact in that review was sought of the QBCC decisions dated 15 January 2017, 17 May 2016, 13 September 2016 and 10 November 2016?

Did the tribunal act on a wrong principle?

Did the tribunal fail to address the remainder of the applications and thus consider the application in its entirety?

  1. [34]
    It is convenient to deal with the remaining grounds of appeal together.
  2. [35]
    In view of the findings made above, I do not need to decide these grounds. However, in case I am wrong, I make the following observations.
  3. [36]
    The Body Corporate argues that its specificity in the application for review and the application for an extension of time in setting out the individual decisions sought to be reviewed and the decisions in respect of which an extension of time was sought, the individual decision-maker in each instance, and why it considered each decision was wrong or not properly made. It submits that accordingly the acting Senior Member’s questions of Mr Carey were unnecessary in light of the clarity of expression.
  4. [37]
    While acknowledging that the learned acting Senior Member identified the Body Corporate’s references to more than one decision in the review application, the Body Corporate criticises her for not enquiring of Mr Carey what those other decisions were, suggesting that she constrained discussion to the single decision of 6 March 2018. Further, the Body Corporate submits that, in asking as a starting point, which decision was sought to be reviewed, when the application clearly referred to the review of five separate applications, the Tribunal acted on a wrong principle. Further, the Body Corporate submits that in the premise, the Tribunal failed to properly address the remainder of the decisions and consider the applications in their entirety.
  5. [38]
    Having regard to the transcript of the directions hearing, and as acknowledged in effect by the Body Corporate’s own submissions, there is no doubt that the learned acting Senior Member identified, understood and took into account when making her orders or directions that, the application for review and the application for extension of time, on their face, were made in respect of multiple decisions. She made no mistake of fact and did not act on a wrong principle. She did not fail to address the remainder of the applications: rather she disposed of them in making her orders.
  6. [39]
    As discussed above, there is nothing unusual about concessions being made and the abandonment of some aspect/s of a claim, including at a directions hearing. In particular, in my experience, it is not uncommon for parties to refer to multiple prior decisions in making applications for review in effect relating the history of QBCC decisions rather than in fact seeking to review each and every one.
  7. [40]
    The learned Member specifically sought to clarify what the application related to by exploring the decision intended as the subject of the review. She was led into error by the responses she received on behalf of the Body Corporate. In particular, instead of making clear submissions to the effect that all of the five decisions specified were sought to be reviewed, its representative agreed that the decision of 6 March 2018 was the subject of the review. Further, that being so, she explored whether the application for extension of time could be dismissed, since the review of the decision of 6 March 2018 was filed within the prescribed timeframe. Again, the Body Corporate’s representative agreed that was appropriate.
  8. [41]
    In summary, although the Tribunal erred in failing to ensure the observance of procedural fairness as discussed above, it was not mistaken as to the applications, did not act on a wrong principle, or fail to address the remainder of the applications.

An issue in disposing of the appeal: Can multiple reviewable decisions be reviewed in a single application to review a decision?

  1. [42]
    An important issue of general significance emerges in this appeal proceeding.
  2. [43]
    In particular, an issue arises about whether the Body Corporate was entitled to file one review application that sought review of five separate decisions of the QBCC. This raises a question of the proper statutory interpretation of the relevant legislative provisions.
  3. [44]
    The Body Corporate had submitted at the oral hearing that the issue of statutory construction is not an issue with which the Appeal Tribunal should concern itself. It submitted that the Body Corporate was content for the appeal to be allowed and for the various applications to be remitted to the tribunal for it to determine, returning the parties to their respective positions before the decisions were made and the issue of proper construction could be decided by the tribunal at first instance.
  4. [45]
    I acknowledge that the Tribunal below did not consider or decide the issue of whether multiple decisions can properly be the subject of one review application and application to extend the time for filing the application, as purportedly done here.  However, the parties have made submissions, including subsequent written submissions, about the issue in the appeal proceeding.
  5. [46]
    I have allowed the appeal on a question of law only. The statutory construction issue is purely a question of law. The parties have been given the opportunity to argue it. In proceeding under s 146 of the QCAT Act, I am not rehearing the matter in determining the statutory construction issue. In keeping with s 3 of the QCAT Act, it is expeditious to deal with the issue on appeal. I have concluded that I am entitled to do so and that I should do so in the interests of expedition in disposing of the appeal proceeding.

The legislative framework for review applications

  1. [47]
    The objects of the QCAT Act include having ‘the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.’[11]
  2. [48]
    The QCAT provides in s 33, that if a person may apply to QCAT to deal with a matter, the application must be in a form substantially complying with the rules; state the reasons for the application and be filed in the registry.[12] Time limits are provided for review applications. Section 33 is in the following terms:

33 Making an application

  1. (1)
     This section applies if this Act or an enabling Act provides that a person may apply to the tribunal to deal with a matter.
  1. (2)
     The application must –

(a) be in a form substantially complying with the rules; and

(b) state the reasons for the application; and

(c) be filed in the registry.

  1. If the application is for the review of a reviewable decision, the application must be made, by filing it in the registry, within 28 days after the relevant day.
  2. In this section –

relevant day, for an application for the review of a reviewable decision, means –

  1. the day the applicant is notified of the decision; or
  2. if the applicant has applied to the decision-maker for a written statement of reasons for the decision under section 158 – the earlier of the following days –
  1. the day the written statement is given to the applicant;
  2. the day by which the written statement is required to be given to the applicant under that section; or
  1. if the applicant has applied to the tribunal for an order under section 159 –
  1. if the tribunal makes the order – the earlier of the following days –
  1. the day the written statement of reasons the subject of the order is given to the applicant;
  2. the day by which the written statement of reasons the subject of the order is required to be given to the applicant under the order; or
  1. if the tribunal does not make the order – the day the applicant is satisfied of the tribunal’s decision to not make the order.
  1. [49]
    As a matter of practicality, a review application must generally be made within 28 days after the day on which an applicant is notified of a decision. Although there are other possibilities provided for when the 28 day period will commence from another day, there is still a time frame of 28 days after the relevant day.
  2. [50]
    Rule 7 of the QCAT Rules states:

 7 Form of application

  1. (1)
    An application to the tribunal to deal with a matter must be made –
  1. in the approved form; or
  2. if there is no approved form for the matter – in the way stated in rule 10.
  1. (2)
     The approved form for subrule (1)(a) must provide for the inclusion of the applicant’s statement of address for service.
  1. [51]
    Relevantly, an application to review a decision is made by QCAT Form 23.
  2. [52]
    The QCAT Act provides that an applicant must pay the prescribed fee for an application: s 38(1). It prohibits the tribunal from taking any action on an application until the fee is paid: s 38(2). The QCAT Regulations prescribe the fees to be paid for s 38(1) of the QCAT Act. For a review application, the prescribed fee at the time that the Body Corporate filed its application to review a decision was $326.80.
  3. [53]
    It is useful here to consider the nature of the review jurisdiction. Chapter 2 Division 3 of the QCAT Act provides for the tribunal’s review jurisdiction generally. In particular, ss 17, 18 and 19 provide:

17 Generally

  1. The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
  2. For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.

18 When review jurisdiction exercised

  1. The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
  2. A person may apply to the tribunal to exercise its review jurisdiction for a reviewable decision, and the tribunal may deal with the application, even if the decision is also the subject of a complaint, preliminary inquiry or investigation under the Ombudsman Act 2001.

19 Exercising review jurisdiction generally

In exercising its review jurisdiction, the tribunal—

  1. must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
  2. may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
  3. has all the functions of the decision-maker for the reviewable decision being reviewed.
  1. [54]
    A decision-maker must help the tribunal, ‘in a proceeding for the review of a reviewable decision…’[13] In deciding the review, the tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker for the decision with any directions it may consider appropriate.[14]
  2. [55]
    It is also useful to note other aspects of the statutory scheme. In particular, sections 54 and 55 of the QCAT Act provide respectively for consolidation of 2 or more proceedings concerning the same or related facts and circumstances and sequencing of 2 or more proceedings concerning the same or related facts and circumstances (although they remain separate proceedings). Those sections are in the following terms:

54 Consolidation

  1. The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances be consolidated into 1 proceeding.
  2. The tribunal’s power to give a direction under subsection (1) is exercisable only by a legally qualified member or an adjudicator.
  3. If 2 or more proceedings (each a pre-consolidation proceeding) are consolidated under subsection (1), evidence given in a pre-consolidation proceeding may also be given in the consolidated proceeding in relation to each of the other pre-consolidation proceedings.

55 Sequence

  1. The tribunal may direct that 2 or more proceedings concerning the same or related facts and circumstances —
  1. remain as separate proceedings but be heard and decided together; or
  2. be heard in a particular sequence.
  1. The tribunal’s power to give a direction under subsection (1) is exercisable only by a legally qualified member or an adjudicator.
  1. [56]
    Further, s 61 of the QCAT is relevant, as follows:

61 Relief from procedural requirements

  1. The tribunal may, by order —
  1. extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  2. extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
  3. waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  1. An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  2. The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  3. The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  4. The tribunal’s power to act under subsection (1) is exercisable only by —
  1. the tribunal as constituted for the proceeding; or
  2. a legally qualified member, an adjudicator or the principal registrar.
  1. [57]
    In this instance, the QBCC Act is the enabling Act for s 17 of the QCAT Act. The QBCC Act provides for external review of specified classes of decisions by affected persons pursuant to the QBCC Act. [15]

The parties’ submissions

  1. [58]
    The Body Corporate submits that although the language of the QCAT Act in providing for making of application for review of a reviewable decision is in the singular, there is no express prohibition on an application to review multiple decisions. Further, it submits that consistent with the objects of the QCAT Act to have the tribunal deal with matters in a way that is accessible, fair, just, economical and quick, such an approach promotes informality and minimises costs to parties. In this instance, it argues that the decisions here cannot be considered separately. It argues that more than arising out of the same or related facts in the manner that s 54 of the QCAT Act contemplates, they are inextricably linked and must be considered as one.
  2. [59]
    Therefore, it says that the applications were regularly made and that s 54 simply does not need to be invoked here. It argues that the statutory construction that it contends for is not inconsistent with the QCAT Act read as a whole, notwithstanding that s 54 would appear to have no purpose in these circumstances, if the construction contended for is correct.
  3. [60]
    The QBCC submits that time limits are imposed for a reason. Pursuant to s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), an exhaustive list of those decisions that are reviewable decisions is specified. Relevantly, some of those decisions are taken by the QBCC in reliance upon earlier decisions. For example, relevantly, a decision to give a direction to rectify is reviewable pursuant to s 86(1)(e). A subsequent decision that building work done under the direction is not to a satisfactory standard is reviewable under s 86(1)(f). The ‘knock-on effect’ illustrates the need for timely review within the prescribed time frame of 28 days.
  4. [61]
    Further, it argues that, the tribunal must, having regard to the established principles,[16] consider whether time should be extended in respect of each individual decision on its own merits.[17] Rolling it into one application improperly, it submits, clouds the consideration of whether an extension of time should be granted in respect of each application under s 61 of the QCAT Act.
  5. [62]
    It submits that had the Body Corporate exercised its review rights in time in relation to each of the earlier decisions (assuming for these purposes that each of them is a reviewable decision) then the later decisions of QBCC may have been different. In its present form, it argues that the Body Corporate’s application contemplates extending the review to the entire course of conduct of a public authority, here, the QBCC, in circumstances when the statutory process identifies, under the QBCC Act, specific milestones at which review rights may be exercised.
  6. [63]
    The QBCC submits that the Body Corporate’s approach unnecessarily complicates the exercise of the Tribunal’s review jurisdiction and that a person affected by a reviewable decision should make an application in respect of that decision as its review rights arise. That, it argues, would best achieve the purposes of both the QBCC Act and the QCAT Act. Further, as the QCAT Act contemplates in respect of multiple reviews, in appropriate circumstances, a direction may be sought consolidating or sequencing the proceedings that are on foot at the same time pursuant to ss 54 or 55.
  7. [64]
    To the extent that separate applications are necessary, it argues that a fee waiver may be sought in appropriate circumstances.

Discussion

  1. [65]
    As a matter of statutory construction, the QCAT Act should be read as a whole, in a manner consistent with its language and purpose: the construction given must be consistent with the legislative intent and avoid a construction that would produce an unjust or capricious result.[18]
  2. [66]
    At the outset, I observe the Acts Interpretation Act 1954 (Qld) (‘AI Act’) provides in s 32C(a) that in an Act, words in the singular include the plural. That said, the application of the AI Act may be displaced, wholly or partly by a contrary intention in any Act.[19]
  3. [67]
    Under the legislative scheme only particular decisions that an enabling Act, here the QBCC Act, provides are reviewable decisions, may be the subject of external review in QCAT. In the ordinary course, there will not be multiple reviewable decisions open for review within the prescribed 28 day time limit at any given time.
  4. [68]
    It appears to me that it is consistent, and indeed, promotes prompt disposition of proceedings if parties are expected generally to act promptly in their own interests in exercising their review rights if they are dissatisfied with a relevant reviewable decision made by a government officer or on behalf of statutory authority. Although the QCAT Act provides for extensions of time to be given in appropriate cases, that is, as an exception to the prescribed time limit as may be justifiable in the particular circumstances.
  5. [69]
    Further, if the facts and circumstances are related to another review, the tribunal may make orders for consolidation or sequencing under sections 54 or 55. If, as the Body Corporate contends, the decisions in a sequence of events spanning years were to be considered inextricably linked and therefore properly brought as one proceeding, there would be no work for sections 54 or 55 to do. The construction for which the Body Corporate contends would not give effect to the QCAT Act as a whole.
  6. [70]
    Nor would it give effect to the broader statutory scheme consisting of the enabling Act and the QCAT Act, which provides for prescribed time limits for review. I accept that legislative time limits are imposed in the interests of justice. There are sound public policy reasons why the legislature might impose a time limit. For example, as here, other decisions that may then be made by a statutory authority flow from an earlier one. The administrative arm of government, and QCAT in circumstances when decisions are reviewable in QCAT, would grind to a halt, if although parties had distinct review rights throughout a process of the making of multiple decisions, affected persons did not exercise them in a timely manner, and then years after the decisions were made, could simply roll it all into one application for review to challenge a myriad of decisions in which all of the circumstances are reviewed. As the QBCC submitted, a limitation period is not an ‘arbitrary cut-off point unrelated to the interests of justice….’.[20] A former President of QCAT, who held that there must be compelling reason for a time limit not to be complied with, has said:

‘Clear definition of time limits assists in achieving the objects outlined in section 3(b) of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical and quick….This is fair for all parties.’[21]

  1. [71]
    An interpretation that would allow the payment of one prescribed fee is argued by the Body Corporate to be in accordance with QCAT’s object to deal with matters in an economical manner. I do not accept this argument. Had the Body Corporate reviewed each decision within the prescribed time frame as parties are expected to do, it would have paid the requisite prescribed fee on each occasion. Its failure to do so does not support a valid argument of economy of the type intended by s 3 of the QCAT Act. As the QBCC submits, fee waivers are available in appropriate circumstances.
  2. [72]
    I also accept, as the QBCC submits, that on a proper construction, the QCAT Act requires a consideration of whether in the particular circumstances relating to each reviewable decision, an extension of time should be granted. This is plain from s 61 of the QCAT Act, and a reading of the QCAT Act as a whole.
  3. [73]
    I am satisfied that there are compelling reasons to conclude that a reviewable decision which may be the subject of a review application by QCAT pursuant to the statutory scheme, is to be read as a matter of statutory construction, in the singular and that separate review application is required to be filed in respect of each decision the subject of a review application. The application of s 32C(a) of the AI Act is displaced by contrary intention in the circumstances in the QCAT Act.
  4. [74]
    For the reasons discussed, I find that the QCAT Act requires that a separate review application is to be filed in respect of each decision sought to be reviewed, and a separate application for extension of time is required in respect of each reviewable decision that is made outside of the statutory time limit.

Conclusions and orders 

  1. [75]
    For the reasons discussed above, to the extent necessary, leave to appeal should be granted and the appeal should be allowed.
  2. [76]
    The decisions of the Tribunal in orders 2 and 8 dated 24 May 2018 should be set aside.
  3. [77]
    The Body Corporate should be placed in a position whereby there is no impediment to it seeking review of the decisions other than of 6 March 2018 in the event that it is successful in obtaining extensions of time to do so. Accordingly, I make orders that the Body Corporate must amend its application for review in the proceeding so that it relates only to the decision dated 6 March 2018 and similarly, that it amend its application for extension of time. Although the latter will then become otiose in this proceeding, it overcomes the Body Corporate’s concern that it might be argued against it that the application for extension of time in respect of the other decisions has been decided against it if the application for extension of time in this proceeding is dismissed in its current form. Further, it overcomes any potential argument that leave of the Tribunal to file any further applications for extension of time is required pursuant to s 46(3) of the QCAT Act, in the event that it withdraws the application.
  4. [78]
    The Body Corporate will then be at liberty to file any such further individual review applications as it may wish in relation to the other QBCC decisions that it had purported to review in this proceeding, together with an application for extension of time in each instance.
  5. [79]
    I make orders accordingly. 

Footnotes

[1]Transcript dated 24 May 2018, I-2, lines 37-35.

[2] Ibid, I-2, lines 33-35.

[3] Ibid, I-3, lines 40 to I-4, line 14.

[4] Ibid, I-4, lines 27-30.

[5] Ibid, I-5, lines 35-43.

[6] Ibid, I-7, lines 38-44.

[7]Ibid, I-8, line 25.

[8] Ibid, I-8, line 27.

[9]Pickering v McArthur [2005] QCA 294.

[10]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578; 580.

[11]  QCAT Act s 3(b).

[12]  QCAT Act, s 31(1) and (2).

[13]  QCAT Act s 21(1).

[14]  QCAT Act s 24(1)

[15]  QBCC Act s 86, 86F and 87.

[16]Jensen v QBCC [2017] QCAT 232, [113].

[17]McCrystal v QBCC [2018] QCAT 20.

[18]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69-71]; Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128, [27].

[19]Acts Interpretation Act 1954 (Qld) s 4.

[20]  Ibid, [18].

[21]Coppens v Water Wise Design Pty Ltd [2013] QCATA 285, [13]–[14].

Close

Editorial Notes

  • Published Case Name:

    Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Body Corporate for Alto Gladstone v Queensland Building and Construction Commission

  • MNC:

    [2020] QCATA 6

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard

  • Date:

    10 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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