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NTL Constructions Pty Ltd v Queensland Building and Construction Commission QCAT 329
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
NTL Constructions Pty Ltd v Queensland Building and Construction Commission  QCAT 329
ntl constructions pty ltd
queensland building and construction commission
General administrative review matters
28 September 2021
On the papers
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether extension of time to file application for review can be granted under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – effect of s 86F(1)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether Tribunal has jurisdiction to hear the matter – whether time should be extended for filing an application for review
Queensland Building and Construction Commission Act 1991 (Qld), s 86F, 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 9(1), s 13, s 17(1), s 33, s 47, s 61, 62(1)
Anderson-Barr v Queensland Building and Construction Commission  QCAT 438
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bein v Queensland Building and Construction Commission  QCAT 109
Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor  QCATA 6
Campaigntrack Victoria Pty Ltd v The Chief Executive,
Department of Justice and Attorney-General & Ors  QCA 37
Childs v Queensland Building and Construction Commission  QCAT 281
Coppens v Water Wise Design Pty Ltd  QCATA 285
Creek v Raine & Horne Real Estate Mossman  QCATA 226
Dey v Victorian Railways Commissioners  78 CLR 62
Gallagher v QBSA  QCAT 383
Jensen v Queensland Building and Construction Commission  QCATA 232
McCrystal v Queensland Building and Construction Commission  QCAT 207
Pavlovic v Queensland Building and Construction Commission  QCAT 128
Yeo v Brisbane Polo Club Inc  QCAT 261
APPEARANCES & REPRESENTATION:
QBCC Legal Services
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
- The tribunal has jurisdiction to deal with matters if empowered to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) or by an enabling Act.
- The tribunal’s review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.
- Section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) provides that an application may be made to the tribunal for a review of a “reviewable decision… as provided under the QCAT Act”.
- Section 33 of the QCAT Act requires an application for review of a “reviewable decision” to be made within twenty-eight days of the day the applicant is notified of the decision.
- Section 61 of the QCAT Act empowers the tribunal to extend a time limit fixed for the start of a proceeding, or otherwise to waive compliance with another procedural requirement, in certain circumstances.
- On 1 May 2020 NTL Constructions Pty Ltd (“the builder”) filed an application for the tribunal to review a decision of the Queensland Building and Construction Commission (“QBCC”) being a direction to rectify made 9 May 2019 (“the DTR”). The builder also filed an application to extend time, as, on the face of it, the application for review was filed out of time.
- Upon a closer reading of the material supporting the application and the application to extend time, it appears the applicant also seeks a review of the QBCC’s decision regarding work not fixed or completed made 12 August 2019 (“the DRWNF”).
- The QBCC in response seeks that the application for review be struck out on the grounds that it is out of time and is an abuse of process as:
- (a)the DTF is not a “reviewable decision”; and
- (b)time should not be extended with respect to the DRWNF; and
- (c)each review request requires its own application; and
- (d)on those bases, the application for review should be struck out.
- The tribunal is therefore being asked, at this interlocutory stage, to determine:
- (a)the application by the builder to extend time; and
- (b)the application by the QBCC for striking out.
Background to the QBCC decisions
- On 16 March 2016 named property owners contracted with the builder for construction of a dwelling in Pimpama, Queensland.
- On 11 July 2017 the owners first made a complaint with the QBCC alleging one hundred and fifty items of defective and incomplete work by the builder.
- According to the builder, between 7 October 2017 and 23 April 2019 three onsite inspections took place and rectification work was variously undertaken by the builder or by tradespersons engaged by them.
- On 9 May 2019 the QBCC issued the direction to rectify seventeen items then remaining and it was sent to the builder by email on 13 May 2019. Rectification was required by 10 June 2019 and the letter to the builder also contained the following information:
Internal Review – QBCC
You have the right to have this decision internally reviewed by a QBCC officer independent of the original decision. An internal review application must be lodged within 28 days of the date of this letter.
Should you be dissatisfied with a QBCC internal review decision, that decision may also be reviewed by QCT.
External Review - QBCC
You have the right to have this decision externally reviewed by the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of the date of this letter.
- Following an inspection on 1 August 2019, the QBCC made the DRWNF, which was communicated to the builder by a letter dated 12 August 2019 that contained the same “internal review” and “external review” information the DTR letter contained.
- On 14 November 2019 the QBCC notified the builder of its first scope of works decision. On 10 December 2019, the builder requested both an internal and an external review of that decision. The internal review led to an amended scope of works decision that was communicated to the builder on 8 January 2020. The external review application remains on foot in the tribunal as matter GAR487-19.
- On 4 December 2019 the builder was informed that the QBCC had approved the owner’s claim under the Statutory Insurance Scheme and that the claim cost is the builder’s responsibility.
- Following the compulsory conference in GAR487-19 that took place on 26 March 2020, the builder filed these proceedings.
The builder’s case
- Among other things, the builder says:
- (a)it co-operated with QBCC processes and inspections between 2017 and 2019 but the QBCC lost records and gave conflicting information to the builder which led the builder to lose its willingness to engage;
- (b)it is self-represented and has no legal experience, as well as limited experience with the QBCC and tribunal processes;
- (c)the QBCC has “bullied and rail roaded” the builder throughout the process and mislead the builder as to when QCAT proceedings may be filed; and
- (d)the scope of works application having been filed within time, and the conciliation conference in that matter having proceeded, the builder was simply complying with a tribunal suggestion that he submit further paperwork for the other decisions to be reviewed.
The QBCC’s case
- The QBCC say that:
- (a)Sections 86(1)(e) and (f) of the QBCC Act define “reviewable decisions” as:
- (e)a decision to give a direction not rectify or remedy… ; and
- (f)a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard…
- (b)Section 86F(1)(b) sets out decisions that are not (their emphasis added) reviewable including:
- (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 -
- (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
- (ii)the commission has –
- (B)served a notice on the person advising a claim under the statutory insurance scheme has been approved…
- (a)on 9 May 2019 the QBCC issued the DTR; and
- (b)on 4 December 2019 the builder was informed of the QBCC’s approval of the owner’s claim under the Statutory Insurance Scheme; and
- (c)the builder’s application to the tribunal for a review of the DTR was not made until 1 May 2020,
the DTR is no longer a “reviewable” decision over which the tribunal has jurisdiction under section 87.
- Finally, they say that, with respect to the DRWNF, the application to extend time should not be granted because:
- (a)the builder has not given adequate reasons for the delay, and in particular, to the extent that he pleads ignorance as to the process, his review rights and application time limits were clearly spelt out in the letters to him communicating the decision;
- (c)the builder, having sought to review the scope of works decision in lieu of, and well after, the DTR and DFWNF decisions, cannot change his mind during an ongoing proceeding to review two different decisions, relying upon Childs v Queensland Building and Construction Commission  QCAT 281 per Member Cranwell at  who said:
It is not for the Tribunal to facilitate [the builder’s] belated realisation that he perhaps should have been seeking review of a different decision of the QBCC; and
- (d)the review application is futile because it was not validly made as it seeks review of two separate decisions. They note the decision of the Appeal Tribunal in Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor in which it was stated that “simply roll[ing] it all into one application for review to challenge a myriad of decisions” is not valid; and
it is important that time limits are observed so that the processes and procedures followed by the administrative decision-makers are not hampered or detrimentally affected so that the statute, more broadly, operates effectively.
- (ii)the owner has already been advised that the claim under the Statutory Insurance Scheme was approved and the owner is entitled to assume that matters have been concluded and that the property will be rectified.
The extension of time application
- The power to extend time for the filing of a proceeding involves the exercise of discretion and a consideration of:
- (a)whether there is a reasonable explanation for the delay;
- (b)whether there has been any prejudice suffered as a result of the delay in filing the application;
- (c)whether the proposed claim has some merit; and
- (d)whether it would be fair and equitable in all of the circumstances.
- A time limit cannot be extended if this would cause prejudice or detriment not able to be remedied by an order for costs or damages.
- Importantly, the tribunal’s ability to waive procedural requirements does not extend to waiving substantive requirements.
- As Member Paratz summarised in Bein v Queensland Building and Construction Commission  QCAT 109 at :
The power of the Tribunal to extend time under section 61 of the QCAT Act therefore applies to procedural requirements only and does not apply where an explicit provision of an enabling Act provides that a time period cannot be extended as a substantive provision.
- Section 86F(1)(c) of the QBCC Act is a substantive provision, as it provides that a decision of the type described in section 86F(1)(c) of the Act is not a reviewable decision. As the decision itself is not reviewable, then there is no procedural requirement – namely, the ability to file an application for review under section 87 of the QBCC Act – that the tribunal can extend time for.
- I accept those submissions and for those reasons, the application to extend time with respect to the DTR is dismissed.
- With respect to the DRWNF:
- (a)I am not satisfied that the builder has given a reasonable explanation for the delay because:
- even if the builder believed in December 2019 when he applied for a review of the scope of works decision that this also included the DTR or DRWNF (and there is nothing to suggest that he did in fact hold that belief), there had, by then, already been a period of four months pass which is well beyond the twenty-eight days each letter notified him was allowed; and
- each letter notifying the builder of the decisions clearly informed the builder of his review rights and the time limits that applied;
- although the builder may have been somewhat “process-fatigued” following his ongoing dealings with the QBCC and repeated inspections between 2017 and 2019, these dealings culminated in the DTR in May 2019 and the DRWNF in August 2019 and the time to challenge them was within twenty-eight days of those decisions being notified to the builder. The builder was well able, despite process-fatigue, to apply within time to review the scope of works decision that followed shortly afterwards in November 2019, and in those circumstances the builder appears to have had a change of mind in deciding to review the DRWNF in May 2020 rather than having any other reasonable explanation as to why he did not apply sooner.
- (b)I am satisfied that the owner and the QBCC will suffer prejudice as a result of the delay because:
- the delay has been significant;
- they are entitled to rely on time limits being observed in the ordinary course and then proceed with next steps in reliance upon time expiring. As Senior Member Howard noted in Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor:
…legislative time limits are imposed in the interests of justice. There are sound public policy reasons why the legislature might impose a time limit. For example, as here, other decisions that may then be made by a statutory authority flow from an earlier one;
- (iii)following the expiry of time for review of the DTR, then the DRWNF, a Statutory Insurance Claim was approved and notified to the owner some six months before the application for review was filed and the owner is entitled to reply upon that as having resolved the matter; and
- (iv)the QBCC has invested time and resources in pursuing the alternative course of action – namely the review of the scope of works – requested by the builder, in the intervening period.
- (c)I am not satisfied that the claim has merit in its current form because the application is for the review of two decisions.
- (d)I do not consider that it would be fair and equitable in all of the circumstances to extend time particularly following the finding in Coppens v Water Wise Design Pty Ltd that:
Clear definition of time limits assists in achieving the objects outlined in section 3(b) of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical and quick….This is fair for all parties.
- For those reasons the application to extend time with respect to the DRWNF is also dismissed.
The striking out application
- The extension of time applications having failed, that is the end of the proceeding and the striking out application, technically, need not be separately dismissed.
- For the sake of completeness, however, I note that the objects of the QCAT Act include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the Act requires the tribunal, among other things, to encourage the early and economical resolution of disputes before the Tribunal.
- Section 13 of the QCAT Act obliges the tribunal to make orders that it considers fair and equitable to the parties to the proceeding and, if the tribunal considers it appropriate, to make an order dismissing the application.
- The High Court has recently observed in relation to court resources generally that they serve “… the public as a whole, nor merely the parties to the proceedings”.
- Section 47 of the QCAT Act allows the tribunal to strike out or dismiss a proceeding (47(2)) however, the power should only be exercised “sparingly” and “to prevent an abuse of process when a claim is groundless or futile”.
- As the tribunal does not have jurisdiction in the circumstances to extend the time for filing an application to review the DTR made 9 May 2019 and has declined the application to extend time for the application to review the DSNWF made 13 November 2019, it follows that the striking out application, if it is necessary, must succeed.
  QCATA 285 at –.
 QCAT Act, s 9(1).
 QCAT Act, s 17(1).
 Builder’s written submissions dated 26 July 2020.
 For example, Pavlovic v Queensland Building and Construction Commission  QCAT 128 at  and Anderson-Barr v Queensland Building and Construction Commission  QCAT 438 at .
 Childs v Queensland Building and Construction Commission  QCAT 281 at .
  QCATA 6.
 Ibid at .
 McCrystal v Queensland Building and Construction Commission  QCAT 207 at .
  QCATA 232 at  per Member Traves.
 McCrystal v Queensland Building and Construction Commission  QCAT 207 at .
 Gallagher v QBSA  QCAT 383 at .
 QCAT Act, s 61(6).
  QCA 37.
 Ibid at  and .
  QCATA 6 at .
  QCATA 285 at –.
 Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor  QCATA 6 at .
 Section 3(b) of the QCAT Act.
 Section 4(b), ibid.
 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 cited in.Creek v Raine & Horne Real Estate Mossman  QCATA 226, .
 Yeo v Brisbane Polo Club Inc  QCAT 261, - citing Dey v Victorian Railways Commissioners  78 CLR 62.
- Published Case Name:
NTL Constructions Pty Ltd v Queensland Building and Construction Commission
- Shortened Case Name:
NTL Constructions Pty Ltd v Queensland Building and Construction Commission
 QCAT 329
28 Sep 2021