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- Unreported Judgment
Quinlan v Queensland Building and Construction Commission QCAT 349
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Quinlan v Queensland Building and Construction Commission  QCAT 349
danny peter quinlan
queensland building and construction commission
General administrative review matters
7 November 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
All Building Law
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 13 December 2018, the Queensland Building and Construction Commission (‘QBCC’) decided that Joanne Logue had validly terminated a domestic building contract with Mr Quinlan, with the consequence of allowing a claim for non-completion under the statutory insurance scheme.
- The letter advising Mr Quinlan 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.
- On 25 July 2019, Mr Quinlan filed an application to review the decision with the Tribunal. On the application form, Mr Quinlan stated that he received the decision under review on or about 13 December 2018.
- Section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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. It follows that the application for review was required to be made by 10 January 2019.
- As the application for review was filed out of time, Mr Quinlan 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
- Mr Quinlan has raised five reasons for delay, which I will deal with in turn.
- Firstly, Mr Quinlan stated that he was notified of the decision shortly before the Christmas period, and that he had a range of family responsibilities including mounting expenses, mortgage payments, car payments, bills, credit card bills, solicitor’s bills, Christmas expenses, and caring for two school aged children.
- I am not satisfied that this amounts to a reasonable explanation for Mr Quinlan’s delay in filing his application for review. These are matters commonly experienced by ordinary members of the community.
- Secondly, Mr Quinlan stated that he was suffering from mental health issues, and that he sought to treat himself by self-help audio books and cleaning and detox programs.
- I do not accept that Mr Quinlan was suffering from mental health issues such that he was unable to file an application for review within 28 days. He has provided no medical or other evidence to support his assertions.
- Thirdly, Mr Quinlan stated that he lacked the financial resources to obtain legal advice.
- I am not satisfied that this amounts to a reasonable explanation for Mr Quinlan’s delay in filing his application for review. Section 43(1) of the QCAT Act states that:
The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
- The “Form 23 – Application to review a decision” is a straightforward form to complete. It requires the applicant to provide only basic details and brief explanations as to his or her position. It is not a pleading. Legal assistance is not required to complete this form, and thousands of applicants have completed the form without legal assistance. I note in passing that Mr Quinlan has neither sought, not been granted, leave to be legally represented pursuant to s 43 in any event.
- Fourthly, Mr Quinlan stated that another party was in control of relevant information about the decision, and that he needed time to obtain information relating to the contract before filing the application for review.
- I am not satisfied that this amounts to a reasonable explanation for Mr Quinlan’s delay in filing his application for review. The application for review attaches only the decision under review, which Mr Quinlan has stated he received on or about 13 December 2018. No other documents were provided with the application for review, and none were required. Parties frequently obtain further information as a proceeding progresses, including as a result of the decision-maker providing the documents required under s 21(2) of the QCAT Act.
- Fifthly, Mr Quinlan stated that he did not understand that the amount due to be paid under the statutory insurance scheme is over and above the amount Ms Logue was required to pay to Mr Quinlan under the contract.
- I am not satisfied that this amounts to a reasonable explanation for Mr Quinlan’s delay in filing his application for review. The decision clearly noted that the consequence of a valid termination of the building contract was to allow a claim for non-completion under the statutory insurance scheme.
- For completeness, the QBCC has advised that Mr Quinlan was informed of the precise quantum of the statutory insurance claim on 20 February 2019. Even after receiving this information, Mr Quinlan delayed a further five months in filing his application for review.
- I have considered each of Mr Quinlan’s explanations separately and cumulatively. For the reasons set out above, I am not satisfied that Mr Quinlan has a reasonable explanation for his delay in filing his application to review a decision in these proceedings.
Length of delay
- Mr Quinlan delayed over six months 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 Quinlan 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 which cannot be remedied by a costs order.
Interests of justice
- The interests of justice do not favour an extension. As Member Traves noted in Jensen:
In my view, the legislative intent underlying the QCAT Act and the QBCC Act is that review proceedings are to be commenced promptly. There is a strong public interest in complying with time limits, particularly in the context of administrative review when the review of decisions by public authorities often occurs at stages of a broader process.
- 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 Quinlan to file this application after a considerable delay.
- The absence of prejudice to the QBCC, and the possibility of some merit to Mr Quinlan’s case, point in favour of extending the time for Mr Quinlan 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 Quinlan 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:
Danny Peter Quinlan v Queensland Building and Construction Commission
- Shortened Case Name:
Quinlan v Queensland Building and Construction Commission
 QCAT 349
07 Nov 2019