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- Unreported Judgment
Childs v Queensland Building and Construction Commission QCAT 281
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Childs v Queensland Building and Construction Commission  QCAT 281
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
13 September 2019
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
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 19 May 2017, the Queensland Building and Construction Commission (‘QBCC’) issued a direction to rectify to Benix Pty Ltd in response to a complaint made by Mr Childs.
- The letter advising Mr Childs 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.
- On 15 July 2019, Mr Childs filed an application to review the decision with the Tribunal. On the application form, Mr Childs stated that he received the decision under review on 19 May 2017.
- The application was filed out of time, so Mr Childs subsequently filed an application for an extension of time on 5 August 2019.
- 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 Childs referred to directions made in proceedings GAR320-17 on 3 June 2019, namely:
The Applicant, Jonathan Childs must file two (2) copies of an application to review a decision to give direction to rectify and/or complete No. 0102093 to Benix Pty Ltd dated 19 May 2017 along with an application to extend or shorten a time limit or for waiver of compliance with a procedural requirement, by:
4:00pm on 15 July 2019
- With respect to Mr Childs, this is not an explanation for his delay in filing his application to review a decision. Nor is it an indication by the learned Member making the directions that an application to extend a time limit would be met with success.
- The relevant history of this matter was set out in my decision delivered on 6 August 2019 dismissing Mr Childs’ application to review a decision in proceedings GAR320-17:
On 31 October 2017, Mr Childs lodged an application to review a decision with the Tribunal. In Part B of the application, he identified as the decision to be reviewed a decision made by an officer of the Queensland Building and Construction Commission (‘QBCC’) on 19 September 2017.
The decision made by the QBCC on 19 September 2017 identified items which were not covered under the statutory insurance scheme. In particular, the decision stated that items 10, 140, 146 and 166 were not covered.
The Tribunal invited the QBCC to reconsider its decision pursuant to s. 23(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and, on 22 March 2018, the QBCC decided to approve items 10, 140, 146 and 166 as part of Mr Childs’ claim under the statutory insurance scheme.
On 9 August 2018, the Tribunal directed:
Jonathan Childs must tell the Tribunal and the Queensland Building and Construction Commission in writing what the reviewable decision is that he is seeking to review, by: 4:00 pm on 17 August 2018.
On 17 August 2018, Mr Childs advised that:
The applicant respectfully requests that the Tribunal review the respondent’s decision dated 27 July 2018 in relation to the scope of works to be rectified by the respondent under the applicant’s claim for assistance under the statutory insurance scheme …
The QBCC subsequently filed a strike out application on 29 August 2018. The Tribunal (differently constituted) dismissed the strike out application on 18 March 2019.
In dismissing the strike out application, the Tribunal directed that Mr Childs to (amongst other things) precisely identify the orders which he is seeking in the application to review a decision. Mr Childs filed a document on 16 April 2019, in which he indicated that he was seeking certain orders amending the scope of works decision made on 27 July 2018.
A careful review of the directions made in this proceeding indicates that Mr Childs has never been granted leave to amend the application for review. While he was asked to advise what decision he was ‘seeking’ to review, no directions were made to give effect to Mr Childs’ request. If there is an undecided application for leave to amend the application for review, I would not now grant leave on the basis that the scope of works decision was not in existence at the time the application for review was lodged: see Vanden Hoven & Anor v Queensland Building and Construction Commission  QCAT 456. As it stands, therefore, the decision under review is the one made on 19 September 2017.
Mr Childs no longer seeks any orders in respect of the decision under review. The orders sought by Mr Child relate to the decision made on 27 July 2018, which is not under review in the present proceedings.
In these circumstances, I consider that the proceeding is lacking in substance pursuant to s. 47(1)(b) of the QCAT Act. Accordingly, I dismiss the application to review a decision.
- What is apparent to me is that at some point during the 21 months that proceedings GAR320-17 was on foot, Mr Childs changed his mind in relation to the decision that he wished to review. How Mr Childs moved from wishing to seek review of a decision relating to the statutory insurance scheme, to wishing to seek review of a scope of works decision, to now wishing to seek review of a direction to rectify has not been satisfactorily explained by Mr Childs.
- Mr Childs persisted for a considerable period of time in pursuing a review of a decision relating to the statutory insurance scheme after obtaining a favourable outcome in relation to that decision. It is not the role of the Tribunal to facilitate Mr Childs’ belated realisation that he perhaps should have been seeking review of a different decision of the QBCC. If Mr Childs was to be given a second chance, that second chance was given to him with the directions of the Tribunal made on 9 August 2018. He did not avail himself of that chance in relation to the direction to rectify decision made on 19 May 2017.
- I am not satisfied that Mr Childs has a reasonable explanation for his delay in filing his application to review a decision in these proceedings.
Length of delay
- Mr Childs delayed over two years 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 very lengthy 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 Childs 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 Childs to file this application after a considerable delay.
- The absence of prejudice to the QBCC, and the possibility of some merit to Mr Childs’s case, point in favour of extending the time for Mr Childs to apply for review of the exclusion decision.
- However, I am of the view that these factors are strongly outweighed by the interests of justice and the absence of a satisfactory explanation for what was a very lengthy 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 Childs 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:
Jonathan Childs v Queensland Building and Construction Commission
- Shortened Case Name:
Childs v Queensland Building and Construction Commission
 QCAT 281
13 Sep 2019