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Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 482

Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 482

CITATION:

Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 482

PARTIES:

Barry Pitt Constructions Pty Ltd

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR208-15

MATTER TYPE:

Building matters

HEARING DATE:

16 May 2016

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

8 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application filed on 30 March 2016 to allow the application to review a decision filed by the application on 24 November 2015 to proceed out of time is dismissed.
  2. The application to extend time to lodge an application for review of the Queensland Building and Construction Commission’s decision dated 29 September 2015 is dismissed.
  3. Time is not extended to lodge an application for review of the Queensland Building and Construction Commission’s decision dated 26 August 2015 to give a direction to rectify.
  4. The application to review a decision is dismissed.

CATCHWORDS:

ADMINISTRATIVE REVIEW – BUILDING – where extension of time to lodge review requested – where issue of what it the reviewable decision

Queensland Building and Construction Commission Act 1991 s 86, s 86F, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 17, s 19, s 33, s 61

Queensland Civil and Administrative Tribunal Regulation 2009 (Qld), Schedule 1

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 30, 31, 32

Kowalski v Repatriation Commission [2008] AATA 903

Smith v Queensland Building Services Authority [2010] QCAT 448

APPEARANCES:

 

This matter was partly heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

APPEARANCES:

Mr Barry Pitt

RESPONDENT:

Ms Rojas and Mr Tan, in house lawyers with the Queensland Building and Construction Commission

REASONS FOR DECISION

Background

  1. [1]
    The applicant in these proceedings is Barry Pitt Constructions Pty Ltd (BPC). The application to be determined is an application to extend the time for BPC to lodge an application for review of a decision of the Queensland Building and Construction Commission (‘the QBCC’). The timeline of events relevant to the application before me is important.
  2. [2]
    On 26 August 2015, BPC was directed by the QBCC to rectify certain building work at a particular site (‘the direction to rectify decision’):
  1. Weep holes to the garage walls have been compromised by covering them with the external concrete paths this contravenes the BCA Part 3.3.4 weatherproofing of masonry, AS 3660.1   3.6 Termite and Risk Management AS4773.2  2010 Section 9.6.2 Damp-Proof Courses (DPC) – Pertains to Item 1 on the QBCC complaint form
  2. Stormwater piping to shed does not comply with the local authority’s requirement in that connection of stormwater is to be connected to existing stormwater inlet – pertains to Item 3 on the QBCC complaint form.
  1. [3]
    The rectification work was to be completed by 26 September 2015.
  2. [4]
    On or about 29 September 2015, the QBCC carried out a further inspection to determine whether BPC had complied with the direction to rectify. The QBCC effectively concluded that in relation to item 1 no works had been carried out to rectify the issue to allow compliance with the relevant part of the Building Code of Australia.
  3. [5]
    The QBCC then sent a letter to BPC on 29 September 2015 notifying it that it had not satisfactorily rectified item 1 (‘the failure to rectify decision’).
  4. [6]
    The notice of the decision dated 29 September 2015, informed BPC of the potential consequences of its failure to satisfactorily rectify the direction items including that the failure may result in a claim for the owner under the QBCC Home Warranty Insurance Policy. BPC was also notified that it had a right to have the decision externally reviewed in this tribunal and that an external review application must be lodged with the tribunal within 28 days of the decision. Alternatively, BPC was notified that it could seek internal review of the decision by a QBCC officer and that an internal review application must be lodged within 28 days. The decision maker was Ms Nicola White, Assessment Officer.

History of the applications now before the Tribunal

  1. [7]
    According to the internal documents of the Tribunal’s registry, on 27 October 2015, BPC lodged in the Tribunal a Form 36 (Response and/or counter application). The Tribunal stamped the form received on that date. In that form, the QBCC was named as the respondent. That form was initially inputted to another matter involving BPC before this Tribunal. However, the case officer later considered, based on the content of the form that it was perhaps intended to be a new application for review. In the section of the form at Part D, “Details of Counter-application”, item 2 “The reasons I consider the order/s sought should be made are;” BPC has stated: “Nothing has been compromised and there is no structural defect. No rectification is warranted/needed” and then reasons are offered as to why that is so. BPC also lodged at that time, an “Alleged defective work/incomplete work schedule” form. That is a form that must be lodged with a Form 25 (Application for commercial building dispute) or a Form 26 (Application for domestic building dispute).
  2. [8]
    On 30 October 2015, registry staff had a discussion with Mr Pitt and he confirmed that he was seeking to review a decision of the QBCC and he was correctly informed that the appropriate form for that purpose was a Form 23. As Mr Pitt was to lodge a new application it was decided to hold the Form 36 until 11 November with a view to possibly returning it to him once the Form 23 was received and processed.
  3. [9]
    On 24 November 2015, BPC filed in the Tribunal a Form 23, “Application to review a decision”. The application was duly stamped by the registry, the relevant fee is recorded as having been paid and the application was allocated a case number. Part B of that form states:

“Details of decision to be reviewed…:

1151046-14

When was the decision made?

? 29/09/2015

When did you receive the decision?

? 29/09/2015”

  1. [10]
    In Part C of the Form 23, when asked to state briefly why the applicant thinks the decision is wrong or not properly made, BPC states, amongst other things, “Nothing has been compromised and there is no structural defect. No rectification is warranted/needed” and then reasons are offered as to why that is so. The Form 23 was thus in similar terms to the Form 36 previously lodged on 27 October 2015.
  2. [11]
    Upon BPC lodging the application for review on 24 November 2015, it was decided that there was no need to return the service copies of the Form 36 to BPC as it not relevant to an application for review.
  3. [12]
    The application to review a decision was accepted by the registry and on 11 December 2015 directions were issued by the Tribunal for the future progress of the matter.
  4. [13]
    On 11 December 2015, BPC was notified by the QBCC that it was proceeding with a claim for defective work under the Queensland Home Warranty Scheme and that if any payment was made on the claim, the QBCC may seek recovery from BPC under s 71 of the QBCC Act.
  5. [14]
    On 17 December 2015, The QBCC served a notice on BPC advising that it had approved a claim under the statutory insurance scheme.
  6. [15]
    By letter dated 7 January 2016, the QBCC informed the Tribunal that the application for review was not lodged within time and BPC had not applied to extend the time limit for lodging the application for review.

The applications to extend time or proceed out of time

  1. [16]
    Following an application for miscellaneous matters being filed by the QBCC, the Tribunal made directions that BPC file and serve an application for an extension of time together with submissions in support of the application by a certain date. The QBCC was directed to file and serve submissions in response and it was directed than the application for an extension of time would be determined on the papers unless the parties requested an oral hearing.
  2. [17]
    On 30 March 2016, BPC made an application for miscellaneous matters seeking directions that consideration be given to allowing BPC’s application filed 24 November 2015 to proceed out of time because the principal registrar accepted the application under s 35 of the QCAT Act and the Tribunal had made directions in the proceeding.
  3. [18]
    On 7 April 2016, BPC filed an application to extend or shorten a time limit or for waiver of compliance with procedural requirement.
  4. [19]
    On 16 May 2016, the Tribunal initiated a hearing in this application in order to ensure that the parties were given a proper opportunity to make submissions in relation to all potential issues for the tribunal’s determination. Mr Barry Pitt attended that hearing on behalf of BPC. The QBCC was represented by Ms Rojas. The Tribunal asked BPC whether in fact BPC sought to have the direction to rectify decision in relation to item 1 reviewed by the Tribunal. BPC informed the Tribunal that it did. It was also agreed that BPC had not undertaken any rectification works in relation to item 1 of the direction to rectify as it did not consider that the work was defective.
  5. [20]
    The Tribunal also raised with the parties whether it was open for the Tribunal to regard BPC’s application to review a decision as an application to review the direction to rectify decision and BPC’s application to extend the time for making the application as an application to extend the time to apply for a review of the direction to rectify decision. Further, the Tribunal asked BPC about the delay in filing the application to review a decision. Mr Pitt in response informed the Tribunal of the documents he had previously filed in October 2015. Out of that hearing, the Tribunal made further directions for filing of further written submissions.
  6. [21]
    Upon receipt of BPC’s submissions outlining that he had earlier lodged incorrect forms with the tribunal and had waited for their return before filing the application for review in these proceedings, the Tribunal conducted a search for any such documents. The Tribunal located the Form 36 and associated documents which are referred to in these reasons.
  7. [22]
    The Tribunal provided the relevant documents to the QBCC following a further directions hearing on 15 September 2016 and provided the parties with an opportunity to lodge and further submissions. Mr Tan represented the QBCC at the directions hearing.
  8. [23]
    In determining the two applications made by BPC, the Tribunal has considered the applications and all written submissions made by the parties as well as the oral information provided to the parties at the hearing and directions hearing. 

What is the reviewable decision?

  1. [24]
    This Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision made by another entity under that Act known as a “reviewable decision”.[1] In this case, the enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
  2. [25]
    Section 86 of the QBCC Act lists each decision that is a “reviewable decision”. Included in the list are the following decisions:
  • a decision to give a direction to rectify[2]
  • a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard.[3]
  1. [26]
    The QBCC says that while BPC’s application for review states that it seeks to review QBCC’s decision dated 29 September 2015 that building work undertaken at the direction of the Commission is not of a satisfactory standard, in fact, BPC seeks a review of QBCC’s decision to give the direction to rectify on 25 August 2015, specifically item 1.
  2. [27]
    It is common ground that BPC has not undertaken any building work in compliance with the direction given in relation to item 1.
  3. [28]
    The QBCC says that BPC is prevented from reviewing the decision to give a direction to rectify because of s 86F(1)(b) of the QBCC Act which provides:
  1. (b)
    a decision to give a person a direction to rectify or remedy, and any finding by the commission in arriving at the decision if—
  1. (i)
    28 days have elapsed from the date the direction was served on a person and the person has not, within that time, applied to the tribunal for a review of the decision; and
  1. (ii)
    the commission has—
  1. (a)
    started a disciplinary proceeding against the person under part 6A; or
  1. (b)
    served a notice on the person advising a claim under the statutory insurance scheme has been approved in relation to the building work relevant to the direction; or
  1. (c)
    started a prosecution, or served an infringement notice, for an offence against section 73 in relation to the direction;
  1. [29]
    BPC agreed at the hearing that it takes issue with the decision to give the direction to rectify. The material it filed in the Tribunal prior the application for extension of time clearly seeks to establish that there were no grounds for the direction to be given. As the Tribunal has already said, it is common ground that since the direction was given, no rectification work has been carried out by BPC in relation to item 1 of the direction to rectify.

Does the Principal Registrar’s acceptance of the application cure any issue regarding the application being lodged outside the relevant time limit?

  1. [30]
    Section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) sets out how a proceeding is started. Section 33(3) provides that 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. “Relevant day” in this case means the day the applicant is notified of the decision.[4]
  2. [31]
    Section 35 of the QCAT Act upon which BPC relies provides that the principal registrar may accept the application without imposing any condition and may reject an application if it is made after the expiry of the period within which it is required to be made under the QCAT Act. While this provision gives the principal registrar a discretion not to reject an application made after the expiry of a time period, it must be read in the context of Part 3 of the QCAT Act which relates to starting proceedings.
  3. [32]
    Section 36 provides that a proceeding starts when the principal registrar accepts an application or referral whether or not on conditions.
  4. [33]
    Section 33(3) is plain and specifically refers to applications for review of a reviewable decision; the application must be made by filing it in the registry within 28 days of the relevant day. Under s 61 of the QCAT Act, the Tribunal can extend the a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act or waive compliance with another procedural requirement under the QCAT Act or the enabling Act or the rules. The Tribunal considers it worthwhile setting out the terms of s 61:

61 Relief from procedural requirements

  1. (1)
    The tribunal may, by order—
  1. (a)
    extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  1. (b)
    extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
  1. (c)
    waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  1. (2)
    An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  1. (3)
    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.
  1. (4)
    The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  1. (5)
    The tribunal’s power to act under subsection (1) is exercisable only by—
  1. (a)
    the tribunal as constituted for the proceeding; or
  1. (b)
    a legally qualified member, an adjudicator or the principal registrar.
  1. [34]
    As s 33(3) is the more specific provision to ss 35 and 36, the Tribunal is satisfied that the principal registrar’s acceptance of the application filed 24 November 2015 cannot supersede the requirement for BPC to apply for an extension of time in order for its application for review to be considered properly filed in the registry under s 33(3).[5]

Has BPC applied within time to review a reviewable decision?

  1. [35]
    The application for review lodged with the Tribunal on 24 November 2015 appears to substantially comply with the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). In accordance with rule 31 it was filed as the principal registrar stamped it with the tribunal’s seal. It also states the reasons for the application so that it satisfied s 33(2) of the QCAT Act. It is in the appropriate form, a Form 23.
  2. [36]
    BPC does not say with any specificity when it was notified of the failure to rectify decision made 29 September 2015. BPC submits that the Tribunal should determine that the notice was sent by letter and received in the ordinary course of the post i.e. two business days later on 1 October 2015. Therefore, any application for review was required to be lodged by no later than 29 October 2015. The Tribunal finds accordingly.
  3. [37]
    Applying that same calculation to the direction to rectify decision made 25 August 2015, any application for review was required to be lodged by no later than 24 September 2015. The Tribunal finds accordingly.
  4. [38]
    Therefore, the application for review filed 24 November 2015 was filed more than 28 days after notice of both the direction to rectify decision and the failure to rectify decision was given to BPC.
  5. [39]
    BPC relies on its lodgement of the Form 36 on 27 October 2015 and further that part of the reason for its failure to lodge the Form 23 until 24 November 2015 was that BPC was awaiting the return of the Form 36 documents by the Tribunal. While BPC’s submissions about when the earlier incorrect forms were lodged was somewhat inconsistent with the documents located by the Tribunal, further searches by the Tribunal of other files relating to BPC failed to locate any other documents. At the last directions hearing, BPC accepted that the forms located by the Tribunal were likely the forms referred to in its submissions. Based on the evidence before me, in particular, the location of the documents filed on 27 October 2015; the searches conducted by the Tribunal for any other documents; Mr Pitt’s description of his interaction with the Tribunal’s registry in relation to the documents he filed in error being largely consistent with what is recorded by the registry in relation to those documents filed on 27 October 2015, the Tribunal finds that the only other documents filed by the BPC which purported to challenge the decisions of the QBCC were the Form 36 and other documents lodged on 27 October 2015.
  6. [40]
    The Form 36 was lodged within 28 days of the failure to rectify decision made 29 September 2015. However, it was not lodged within 28 days of the direction to rectify decision made on 25 August 2015.

Can the Form 36 be regarded as an application for review of a reviewable decision?

  1. [41]
    Section 33 of the QCAT Act sets out the requirements for making an application. Section 33(2) provides that the application must be in a form substantially complying with the rules and state the reasons for the application and be filed in the registry.
  2. [42]
    Rule 30 of the QCAT Rules provides that a document filed by post must be accompanied by a stamped envelope for return post. It is unclear to the Tribunal whether a stamped envelope for return post was included with the Form 36.
  3. [43]
    Rule 31 of the QCAT Rules provides that a document is filed when the principal registrar records the document and stamps the tribunal’s seal on it. The Form 36 does not bear the Tribunal’s seal.
  4. [44]
    Rule 32 of the QCAT Rules provides that the principal registrar may refuse to file a document if it does not comply with the rules or it cannot otherwise be filed. If the principal registrar refuses to file a document a person filed by post, the principal registrar must return the document to the person in the envelope accompanying the document under rule 30. It is clear that the Form 36 was not returned to BPC.
  5. [45]
    In Smith v Queensland Building Services Authority[6] it was held that an application was not filed for the purposes of s 33 if the tribunal seal was not stamped on the document. However, the Tribunal was prepared to exercise its power under s 61(1)(c) of the QCAT Act to waive this procedural requirement in circumstances where, although the application had been lodged and accepted, the filing fee had not been paid.
  6. [46]
    While it is clear that BPC in fact lodged the Form 36 within the relevant time limit for seeking review of the failure to rectify decision made 29 September 2015, BPC does not seek to review that decision. It is clear that it seeks to review the decision to give the direction to rectify made 25 August 2015.
  7. [47]
    Further, and in any event, it is common ground that BPC has not undertaken any building work in relation to item 1 of the direction of the QBCC. Therefore, any application to review the failure to rectify decision made 29 September 2015 is without merit.
  8. [48]
    For those reasons, the Tribunal does not consider there is any utility in waiving the procedural requirements to enable the Form 36 to be regarded as an application for review of the failure to rectify decision made by the QBCC on 29 September 2015.
  9. [49]
    For the same reasons, the Tribunal will not exercise its discretion to extend the time for the lodging of the application for review filed 24 November 2015 insofar as it can be taken to be an application for a review of the QBCC’s decision dated 29 September 2015.

Can the Form 36 or the application for review lodged 24 November 2015 be regarded as an application for review of the decision to give the direction to rectify?

  1. [50]
    The QBCC says that the application for review lodged 24 November 2015 identifies the decision under review as the decision that the building work undertaken at the direction of the Commission is not of a satisfactory standard. The identifying information is the following:

Details of decision to be reviewed…:

1151046-14

When was the decision made?

? 29/09/2015

When did you receive the decision?

? 29/09/2015

  1. [51]
    However, the Tribunal notes that the QBCC also relies on the fact that the grounds for the review referred to by BPC clearly reference his objection to the giving of the direction to rectify in the first place.[7] Indeed, the QBCC argues that BPC’s application to review has no merit for that reason. BPC also confirmed at the hearing that it is the giving of the direction to rectify in relation to item 1 that it says was not correct and seeks to challenge.
  2. [52]
    Even allowing a week for the receipt of the direction to rectify decision, BPC had until the end of September 2015 to apply for review. The Form 36 was not lodged with the Tribunal within the 28 days period. 
  3. [53]
    Therefore, BPC can only proceed to have the direction to rectify decision reviewed if the Tribunal:
    1. Treats the application for review filed 24 November 2015 as an application to review the direction to rectify decision made 25 August 2015; and
    2. Extends the time for the making of the application to review under s 61(1) of the QCAT Act.
  4. [54]
    The QBCC submits that it is clear from BPC’s application to review that BPC sought to review the failure to rectify decision and has not applied to review the direction to rectify decision. The QBCC further submits that the Tribunal cannot ‘substitute’ the direction to rectify decision for the failure to rectify decision to allow BPC to review the direction to rectify decision. The QBCC submits that s 86F of the QBCC Act applies so that since 11 December 2015 the direction to rectify decision is not a reviewable decision.
  5. [55]
    The Tribunal does not seek to substitute the direction to rectify decision for the failure to rectify decision but it has considered whether the application to review a decision filed on 24 November 2015 can be taken to be an application to review the direction to rectify decision. It is the Tribunal’s view that it can. It is clear from the grounds of the application that BPC sought to review the direction to rectify decision. The Tribunal has been guided by the following reasoning of the Administrative Appeal Tribunal constituted by Deputy President Jarvis in the decision of Kowalski v Repatriation Commission[8]:

…Instruments should be construed in accordance with the maxim falsa demonstratio non nocet, that is, an imperfect or inaccurate description will not vitiate an instrument. …

I think that the application of the falsa demonstratio maxim in the present circumstances is also supported by Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 where Gaudron and Kirby JJ, after referring to a provision similar to s 119(1)(g) of the VE Act, said at, [76], that it would be an error of law for the Refugee Review Tribunal to decline jurisdiction because of some technical error in the application for review. Section 119(1)(g) requires the Commission (and this tribunal standing in its shoes) to act according to substantial justice and substantial merits of the case without regard to legal form and technicalities.

The above common law maxim applies where the intention of the person who made the instrument is clear. In the present case, Mr Kowalski clearly intended to invoke the jurisdiction of this tribunal because he was dissatisfied with the decision of the VRB. The error he made in referring to the wrong decision was an obvious error, and should not render his application for review ineffective.

  1. [56]
    That means that BPC’s application to review the direction to rectify decision was filed on 24 November 2015 and was filed prior to the notice issued by the QBCC on 17 December 2015. While s 86F(1)(b)(i) was met at the time of filing the application to review as 28 days had elapsed since the direction to rectify decision was made, s 86F(1)(b)(ii)(B) of the QBCC Act was not at that time satisfied. The direction to rectify decision remained a reviewable decision subject to the granting of an extension of time in which to file the application.
  2. [57]
    In determining whether to extend the time for making the application to review the Tribunal must consider a number of matters. Section 61(3) of the QCAT Act is relevant and has already been set out above.

The delay

  1. [58]
    BPC has not explained why it did not seek review of the decision to give a direction to rectify within the 28 days of receiving the decision. This weighs against exercising the discretion to extend the time. The delay in this case is a month. It is not a lengthy delay.

Is it fair and reasonable?

  1. [59]
    BPC has filed material to support its contention that there was no defective work. The direction to rectify decision has ramifications for BPC’s licence. A notation of the decision will appear on any search of BPC’s licence.
  2. [60]
    From the QBCC’s point of view, its administrative decision making process has moved on, as it was of the view that BPC wished to review the decision of the QBCC that BPC had not satisfactorily carried out rectification work as directed. The QBCC has processed a claim under the statutory insurance scheme. The QBCC argues that if the extension of time is granted it will be significantly disadvantaged as it would have lost the ability to withhold payment pursuant to the statutory insurance scheme. The QBCC further submits that will be deprived of the opportunity to reject the insurance claim on the basis of matters now sought to be agitated by BPC after the claim has been approved. The QBCC submits that throughout the dispute resolution process, BPC had plenty of opportunity to raise the reasons as to why the defects were alleged by it not to be defects but it did not do so.[9]
  3. [61]
    The QBCC further submits that now that it has made a payment under the insurance scheme, if time were extended and BPC successful it would have to recover the amounts already paid under the insurance scheme. That would impact others. It submits that granting of an extension of time will have implications in relation to the recovery of the insurance claim. The homeowner will be impacted. It is further submitted that this would be contrary to the justice of the case.[10]
  4. [62]
    The Tribunal accepts the prejudice to the QBCC and others as submitted by the QBCC. In addition to the arguments raised by the QBCC the Tribunal considers that there is a public interest in finality of administrative decision making.
  5. [63]
    The Tribunal considers that the prejudice to the QBCC and others and taking into account the public interest outweighs the prejudice to BPC. The Tribunal considers that those matters weigh in favour of finding that it is not fair and reasonable to extend time.

Prejudice

  1. [64]
    The matters relating to whether it is fair and reasonable to extend time are also relevant to a consideration of the prejudice to the parties.
  2. [65]
    The Tribunal considers that the prejudice to the QBCC and third parties if the extension of time is granted outweighs the prejudice to BPC if the extension of time is not granted. Further as I have already found, the public interest weighs against extending the time to file the application to review.

Prospects of success

  1. [66]
    BPC has filed material in the Tribunal including from an engineer and PHD Timber Importers and provided his own evidence as to the work he carried out and the work carried out by others. It is not for the Tribunal in considering this application to make any findings in relation to the issues for the determination in the substantive review should the extension of time be granted. However, based on the material filed by BPC and the QBCC I consider that BPC’s case is not without some merit.

Conclusion

  1. [67]
    The Tribunal concludes that BPC’s failure to properly explain its reasons for not seeking review of the direction to rectify decision within time, the prejudice to the QBCC and third parties and the public interest all weigh against extending the time for BPC to apply for review of the direction to rectify decision.
  2. [68]
    The Tribunal has also concluded that as there is no merit to an application by BPC to review the failure to rectify decision, it will not exercise the discretion in s 61(1) to waive compliance with the rules for starting proceedings. Further, the Tribunal will also not extend the time for the application to review lodged 24 November 2015 to review the failure to rectify decision.
  3. [69]
    The application to extend or shorten a time limit or for waiver of compliance with procedural requirement filed 7 April 2016 by BPC is dismissed.
  4. [70]
    The application for miscellaneous matters filed 30 March 2016 by BPC is also dismissed.
  5. [71]
    It follows that the application for review filed 24 November 2015 must also be dismissed the application filed by BPC cannot start a proceeding under s 33 as it was filed out of time.

Footnotes

[1] QCAT Act, s 17.

[2] QBCC Act s 86(1)(e).

[3] QBCC Act s 86(1)(f).

[4] S 33(4)(a).

[5] Also see the notes to s 33(3).

[6] [2010] QCAT 448 at [13].

[7] Respondent’s submission in response to application to extend time dated 21 April 2016 at [20] to [24] inclusive.

[8] [2008] AATA 903 at [133] to [135] inclusive.

[9] Submissions of the QBCC dated 6 October 2016 [28] and [29].

[10] Submissions of the QBCC dated 6 October 2016 [30]-[32] inclusive.

Close

Editorial Notes

  • Published Case Name:

    Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Barry Pitt Constructions Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 482

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie

  • Date:

    08 Dec 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Kowalski v Repatriation Commission [2008] AATA 903
2 citations
Jump To
Cite 1 - [2008] AATA 903
Cite 2 - [2008] AATA 903
Minister for Immigration v Eshetu (1999) 197 CLR 611
1 citation
Jump To
Cite 1 - (1999) 197 CLR 611
Smith v Queensland Building Services Authority [2010] QCAT 448
2 citations
Jump To
Cite 1 - [2010] QCAT 448
Cite 2 - [2010] QCAT 448

Cases Citing

Case NameFull CitationFrequency
Murtagh v Queensland Building and Construction Commission [2018] QCAT 2581 citation
Valuers Registration Board of Queensland v Murphy(2021) 8 QR 382; [2021] QCA 1591 citation
1

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