Priest v Queensland Building and Construction Commission
[2018] QCAT 243
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- Unreported Judgment
- Priest v Queensland Building and Construction Commission[2018] QCAT 243
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Priest v Queensland Building and Construction Commission[2018] QCAT 243
Priest v Queensland Building and Construction Commission[2018] QCAT 243
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Priest v Queensland Building and Construction Commission [2018] QCAT 243 |
PARTIES: | JAMES WILLIAM PRIEST (applicant) |
| v |
| QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR140-18 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 26 July 2018 |
HEARING DATE: | 20 July 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to extend time for leave to appeal PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the applicant filed an application to review a decision out of time – where the applicant filed an application for an extension of time – whether application for an extension of time should be granted Professional Engineers and Other Legislation Amendment Act 2014 (Qld) Queensland Building and Construction Commission Act 1991 (Qld), s 56AC Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 33, s 61 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 Crime and Misconduct Commission v Chapman & Anor [2001] QCAT 229 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 Paddon v Queensland Building and Construction Commission [2018] QCAT 100 Zizza v Commissioner of Taxation [1999] FCA 37 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C H Matthews, instructed by All Building Law Pty Ltd |
Respondent: | M Robinson, solicitor of Robinson Locke Litigation Lawyers |
REASONS FOR DECISION
- [1]On 6 December 2011, the Building Services Authority (‘the BSA’) made two decisions that Mr Priest was an excluded individual for the purposes of s 56AC of the then Queensland Building Services Authority Act 1991 (Qld). One of those decisions relates to the liquidation of Desmain Pty Ltd, of which Mr Priest was a director, and the other relates to his personal bankruptcy.
- [2]In the present proceedings, Mr Priest seeks review of the BSA’s decision that he was an excluded person arising out of his personal bankruptcy. The letter advising Mr Priest of this decision contained the following statement:
BSA’s decision that you are an excluded individual is reviewable in the Queensland Civil and Administrative Tribunal (QCAT). Review applications to QCAT must be made within 28 days. Before make an application, you should consider obtaining independent legal advice.
- [3]I note that s 33 of the QCAT Act provides that an application for the review of a reviewable decision must be made within 28 days of, relevantly, the day the applicant is notified of the decision.
- [4]Mr Priest indicated that he received the decision on or about 9 December 2011. The application for review was therefore required to be made by 6 January 2012.
- [5]On 23 April 2018, Mr Priest filed an application to review the decision with the Tribunal. The application was filed out of time, so Mr Priest subsequently filed an application for an extension of time on 23 May 2018.
- [6]Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) gives the Tribunal power to extend a time limit fixed for the start of a proceeding. The Tribunal cannot extend time if to do so would cause prejudice or detriment to a party or potential party to a proceeding, not able to be remedied by an appropriate order for costs or damages.
- [7]The relevant factors to be considered by the Tribunal in exercising its discretion to grant an extension of time were summarised in Crime and Misconduct Commission v Chapman & Anor:[1]
- (a)Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
- (b)The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
- (c)Prejudice to adverse parties.
- (d)Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one.
- (e)Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.
- (a)
- [8]
Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason (such as those listed above) to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation...
Reason for the delay
- [9]Mr Priest provided a statutory declaration dated 25 June 2018, setting out the relevant factual background.
- [10]Mr Priest was a director of Desmain Pty Ltd, which was placed into liquidation on 25 November 2011. Shortly thereafter, on 28 November 2011, Mr Priest became bankrupt. He was discharged from bankruptcy effective 29 November 2014.
- [11]The BSA evidently made a decision on 9 March 2012 that Mr Priest was a permanently excluded individual, on the basis of the two excluded individual decisions made on 6 November 2011. While Mr Priest did not believe that he should be permanently excluded, he did accept the five year exclusion. In his statutory declaration, Mr Priest put it in these terms:
So from April 2012 until April 2017 I accepted that I must “serve my time” which was the advice given by QMBA lawyer representatives in early 2012.
- [12]In May 2017, after the five year period had expired, Mr Priest set about gathering documents to give to the Housing Industry Association (the HIA). He did not think the matter was urgent. He passed his “brief” to the HIA in June 2017, which was in turn passed on to the Queensland Building and Construction Commission (‘the QBCC’). The QBCC lost the documents in July 2017, but found them in August 2017. At an unspecified time, the HIA was advised that the QBCC could not assist.
- [13]In early 2018, the HIA suggested that Mr Priest obtain legal advice. He contacted and subsequently engaged a lawyer in March 2018.
- [14]I am not satisfied that Mr Priest has provided a satisfactory explanation for his delay. Mr Priest was provided with a clear statement of the timeframe in which he was entitled to seek review of the decision that he was an excluded individual. He evidently decided not to seek review of the decision in the three months prior to him being declared a permanently excluded individual on 9 March 2012. While disagreeing with his permanent exclusion, he then decided not to seek review during the five year period between April 2012 and April 2017. It then took him almost another year before he finally lodged an application for review with the Tribunal. While individual components of Mr Priest’s delay may be explicable, when looking at the totality of the delay I am unable to avoid the conclusion that he demonstrated little sense of urgency in seeking review of the excluded individual decision prior to engaging a lawyer in March 2018.
- [15]I acknowledge that Mr Priest may have experienced financial restrictions on his ability to obtain advice and engage experts during the period that he was bankrupt. However, this period ended on 29 November 2014, over three years before the application for review was lodged.
- [16]For completeness, I do not accept that Mr Priest’s decision to ‘serve’ a five year exclusion before taking steps to seek review of his permanent exclusion is a satisfactory explanation. While Mr Priest stated that he was given legal advice to serve his time, he did not go so far as to say that the legal advice was to delay for five years in seeking a review of the BSA’s decision. Whatever legal advice Mr Priest was given, his decision to delay seeking review does not accord with any objective interpretation of the very clear statement he was given by the BSA about the timeframe for exercising his review rights.
Length of delay
- [17]Mr Priest delayed over six years, from 6 January 2012 until 23 April 2018, before filing his application with the Tribunal. I consider this delay to be considerable.
The strength of the case
- [18]Mr Priest’s prospects of success turn on an interpretation of the amendments made to the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) by the Professional Engineers and Other Legislation Amendment Act 2014 (Qld) (‘the PEOLA Act’).
- [19]Previously, where a person was categorised as an excluded individual in respect of two relevant events, he or she is permanently excluded from ever holding a building licence. However, the effect of the amendments made to s 56AC of the QBCC Act by the PEOLA Act is this consequence does not arise if the two relevant events are consequences flowing from what is considered in substance to be the one set of circumstances.
- [20]Mr Priest’s submission is that his personal bankruptcy and the liquidation of Desmain Pty Ltd flowed from what was in substance the one set of circumstances. It is trite to observe that the amendments made by the PEOLA Act, if they were to apply to Mr Priest, provide a potential exception to permanent exclusion which did not exist prior to the amendments.
- [21]Central to the question of whether the PEOLA Act amendments apply to Mr Priest is the reasoning of the Court of Appeal decision in Queensland Building and Construction Commission v D’Arro,[3] a decision described by Member Traves in Jensen v Queensland Building and Construction Commission with some justification as ‘difficult to follow’.[4] Notwithstanding these difficulties, Member Traves engaged in an erudite analysis of D’Arro before concluding:[5]
In this case, therefore, despite the cancellation of the applicant’s licence, because the amended provisions did not of themselves effect that cancellation, the amended provisions did not affect an accrued right or liability and were not retrospective in operation. The consequence is that the amended provisions would apply on review.
- [22]As this is the most favourable position for Mr Priest, I will accept that conclusion for present purposes without undertaking my own analysis. Arguably, because s 56AC(5) allows a corporate insolvency and an individual bankruptcy to be treated as one event where they arise out of the same set of circumstances, Mr Priest would have good prospects of success.
Prejudice to adverse parties
- [23]The QBCC has submitted that an extension of time in this case would ‘create prejudice to the licensing system that could not be tolerated’. In particular, the QBCC submitted that ‘it would open a “flood gates” (sic) whereby any person thought to be permanently excluded, would be open to re-opening their old matters’.
- [24]I note that Member Paratz accepted an identical submission in Paddon v Queensland Building and Construction Commission, observing:[6]
I accept that it would make the licencing system unstable if builders were to be now able to readily re-open matters from before 2015, many of which were many years old, when witnesses may have become unavailable, or memories may have faded, or documents may have been lost, and prejudice may conceivably readily arise to the QBCC from the delay.
- [25]While no evidence was filed in support of the claimed prejudice,[7] it seems to me that the observations made by Member Paratz are in large measure self-evident. I accept the QBCC’s submissions.
Interests of justice
- [26]The interests of justice do not favour an extension. As Thomas J noted in Coppens,[8] finality in litigation is highly desirable. The Tribunal’s obligation under s 3(b) of the QCAT Act to deal with matters, fairly, economically and quickly would not be achieved by allowing Mr Priest to file this application after a considerable delay.
Conclusion
- [27]Mr Priest’s good prospects of success points in favour of extending the time for him to apply for review of the BSA’s decision.
- [28]However, I am of the view that this factor is outweighed by the absence of a satisfactory explanation for the delay, the prejudice to the QBCC and the interests of justice. As Member Howe observed in Cardillo v Queensland Building Services Authority, “it has … been said that it is a precondition to the exercise of discretion in the applicant's favour that the applicant for extension show an acceptable explanation of the delay”.[9]Mr Priest has not done this.
- [29]The application for an extension of time is refused. The application to review a decision is therefore dismissed.