Jenkins v Queensland Building and Construction Commission
[2022] QCAT 215
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- Unreported Judgment
- Jenkins v Queensland Building and Construction Commission[2022] QCAT 215
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Jenkins v Queensland Building and Construction Commission[2022] QCAT 215
Jenkins v Queensland Building and Construction Commission[2022] QCAT 215
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jenkins v Queensland Building and Construction Commission [2022] QCAT 215 |
PARTIES: | colin walter jenkins (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO: | GAR559-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 14 June 2022 |
HEARING DATE: | 14 June 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where engineer applied for review of decision not to issue a notice to rectify – where application filed more than 28 days from notice of decision – where notice to rectify may issue for defective “building work”- where “building work” does not include engineering practice – where applicant did not address strength of his case on review or why interests of justice favoured extending time – case for extension of time not made out Queensland Building and Construction Commission Act 1991 (Qld), s 72(1) Queensland Building and Construction Commission Regulation 2018 (Qld), Sch 5, s 5 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Parker & Kissane, Solicitors & Attorneys |
Respondent: | Self-represented 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
What is this case about?
- [1]A home owner complained to the Queensland Building and Construction Commission (“the Commission”) about slab movement and related issues in her home. The Commission concluded that the issues with the home were not caused by the builder. Rather, the Commission considered that the applicant, an engineer, was responsible for defective engineering design and site classification.
- [2]Because it had decided that the builder was not at fault, and it cannot issue a notice to rectify to an engineer for engineering services, the Commission decided not to issue a notice to rectify. Instead, it provided the applicant with a list of the issues arising out of the allegedly faulty engineering services to give the applicant an opportunity to consider his position before the Commission treated and assessed the owner’s complaint as a claim under the statutory insurance scheme.
- [3]The applicant wishes to apply for review of the Commission’s decision not to issue a notice to rectify. An application for review of a reviewable decision must be made within 28 days of the applicant being notified of the decision.[1] This application was filed one day late. The applicant has sought an extension of the 28-day period for filing the application for review.
- [4]The application for extension of time is supported by an affidavit by the applicant’s solicitor, deposing that the delay was caused by her errors and not by the applicant who had provided timely instructions to the solicitor. The Commission accepts that the extension sought is short and, if granted, the delay of one day would be unlikely to cause relevant prejudice that would, as outlined below, be a barrier to extending the time. Nevertheless, the Commission opposes the extension of time on the grounds that, in effect, the application for review is doomed to fail.
- [5]I have decided that the application for extension of time must be refused. My reasons follow.
Should the time for review be extended?
- [6]The Tribunal is empowered by s 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to extend the time fixed for starting a proceeding. The time cannot be extended if to do so would cause a detriment not able to be remedied by an appropriate order: s 61(3).
- [7]Case authorities establish that considerations relevant to the exercise of this power include the length of, and explanation for, the delay; the strength of the case the applicant wishes to bring; and overall whether it is in the interests of justice to grant the extension.[2] In view of the short extension sought, and the explanation provided, the Commission, with respect appropriately, mainly relies on its submissions regarding the strength of the applicant’s case for review of the decision not to issue a notice to rectify.
- [8]In that regard, a notice to rectify may only be issued in respect of “building work” and certain associated works.[3] Under s 5 in Schedule 5 of the Queensland Building and Construction Commission Regulation 2018 (Qld), “work performed by an engineer in the engineer’s professional practice” is excluded from being “building work”.
- [9]Accordingly, an engineer cannot be given a notice to rectify in respect of their work as an engineer. It is difficult, therefore, to see any basis on which the Commission’s decision not to issue a notice to rectify to the applicant could be overturned.
- [10]I have considered whether the notice given to the applicant could be construed as implicitly including notice of a decision not to issue a notice to rectify to the builder. If that were so, and the time to apply for review were to be extended, the application for review could be treated as, or as including, an application to review the decision not to issue a notice to rectify to the builder.
- [11]However, two factors have persuaded me against that view. First, the notice makes no reference of any kind to a notice to rectify issuing or not issuing to the builder. Secondly, the applicant is legally represented and there is no suggestion in the submissions filed on his behalf that the applicant proposes to argue along those lines.
- [12]Ultimately, it falls to an applicant to make out a case for an extension of time. The applicant’s submissions do not provide any analysis of the potential strength of his case for review of the decision not to issue a notice of review nor, besides the reference to the delay not being of his making, why it is in the interests of justice for the extension to be granted.
- [13]Noting that the applicant’s solicitors appear to practise interstate, and the issues raised in the Commission’s submissions regarding the apparent lack of prospects of the applicant succeeding in an application for review, I have considered whether to provide the applicant with time to respond to the Commission’s submissions. However, although no directions were made for the applicant to provide submissions in reply to the Commission’s submissions, as noted, the applicant is legally represented and there has been ample time for the applicant to seek leave to file reply submissions if he wished to do so. No such leave has been sought.
Disposition of this matter
- [14]Having regard to the discussion above, in particular the applicant’s failure to address the strength of his case if the extension were to be granted and, more broadly, to make out a case why the interests of justice favour an extension of time to apply for review; and the exclusion of engineering services from the category of building work for which a notice to rectify may issue, I am not satisfied that an extension of time should be allowed.
- [15]It follows that the application for extension of time must be refused and the application for review dismissed.[4]
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33.
[2]See Jensen v Queensland Building and Construction Commission [2017] QCAT 232 and the authorities there cited.
[3]Queensland Building and Construction Commission Act 1991 (Qld), s 72(1).
[4]While making no observations in this regard, I note that the Commission pointed out in its submissions that notice of the relevant scope of works relating to the insurance claim was provided to the applicant and that the applicant had internal and external review rights in respect of the scope of works decision.