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- Unreported Judgment
Anderson-Barr v Queensland Building and Construction Commission QCAT 438
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Anderson-Barr v Queensland Building and Construction Commission  QCAT 438
PETER JOHN ANDERSON-BARR
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
12 December 2018
On the papers
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
Acts Interpretation Act 1954 (Qld), s 39A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 33, s 61
Cardillo v Queensland Building Services Authority  QCAT 574
Coppens v Water Wise Design Pty Ltd  QCATA 309
Crime and Misconduct Commission v Chapman & Anor  QCAT 229
Jensen v Queensland Building and Construction Commission  QCAT 232
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- On 20 March 2018, the Queensland Building and Construction Commission (QBCC) decided not to issue a direction to rectify in response to a complaint made by Mr Anderson-Barr.
- The letter advising Mr Anderson-Barr of this decision contained the following statement:
You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision.
- 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.
- The effect of s 39A of the Acts Interpretation Act 1954 (Qld) is that the decision letter is taken to have been received ‘at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved’. In the case of a regular letter, that is three to four business days, which in this case was by 26 March 2018.
- The application for review was therefore required to be made by
23 April 2018.
- On 4 June 2018, Mr Anderson-Barr filed an application to review the decision with the Tribunal. The application was filed out of time, so Mr Anderson-Barr subsequently filed an application for an extension of time on 10 August 2018.
- Section 61 of 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.
- 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:
- (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.
- In Coppens v Water Wise Design Pty Ltd (‘Coppens’), Thomas J said that:
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
- In his application to extend time, Mr Anderson-Barr stated:
On a telephone conversation with QCAT on the 30 Jul 18 I was informed that the extension of time was required as QBCC needed more time to answer my application.
I have not received any response from QBCC in relation to this application in front of the Tribunal. Without this response it is difficult for the Tribunal to progress the matter further.
I am unable to make any further decisions in relation to this matter without the response from the QBCC.
- This does not provide an explanation for his delay in filing his application to review a decision, which took place prior to any telephone conversation with the Tribunal on 30 July 2018. When given a further opportunity to provide an explanation, Mr Anderson stated in an email dated 15 November 2018:
I have made my case in relation to this matter and cannot add anything else.
Length of delay
- Mr Anderson-Barr delayed six weeks, from 23 April 2018 to 4 June 2018, before filing his application with the Tribunal. In the context of a 28 day time limit, I am of the view that this is a considerable delay.
The strength of the case
- I am not in a position on this application to make findings on the issues for determination in the substantive review should the extension of time be granted. However, in order to give Mr Anderson-Barr every benefit of the doubt, I will assume that his case has some merit.
Prejudice to adverse parties
- The QBCC has referred to the following observations of Member Traves in Jensen v Queensland Building and Construction Commission:
The 28-day time limit is there for a reason. In administrative review proceedings it is important that time limits are observed so that the processes and procedures followed by the administrative decision-maker are not hampered or detrimentally affected so that the statute, more broadly, operates effectively.
- While I agree with the sentiments expressed by Member Traves, the QBCC has not pointed to any specific prejudice to it in its submissions.
Interests of justice
- The interests of justice do not favour an extension. As Thomas J noted in Coppens, 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 Anderson-Barr to file this application after a considerable delay.
- The absence of prejudice to the QBCC, and the possibility of some merit to Mr Anderson-Barr’s case, point in favour of extending the time for Mr Anderson-Barr to apply for review of the exclusion decision.
- However, I am of the view that these factors are outweighed by the interests of justice and the absence of a satisfactory explanation for the delay. 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’. Mr Anderson-Barr has not done this.
- The application for an extension of time is refused. The application to review a decision is therefore dismissed.
- Published Case Name:
Peter John Anderson-Barr v Queensland Building and Construction Commission
- Shortened Case Name:
Anderson-Barr v Queensland Building and Construction Commission
 QCAT 438
12 Dec 2018