Ayres v Queensland Building and Construction Commission
[2022] QCAT 328
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- Unreported Judgment
- Ayres v Queensland Building and Construction Commission[2022] QCAT 328
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Ayres v Queensland Building and Construction Commission[2022] QCAT 328
Ayres v Queensland Building and Construction Commission[2022] QCAT 328
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ayres v Queensland Building and Construction Commission [2022] QCAT 328 |
PARTIES: | JESSIKA ROSE AYRES (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR416-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 7 September 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – 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 33, s 61 Cardillo v Queensland Building Services Authority [2011] QCAT 574 Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 |
APPEARANCES & REPRESENTATION: | 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
- [1]On 22 April 2020, the Queensland Building and Construction Commission (‘QBCC’) made a decision not to issue a direction to rectify in response to a complaint made by Ms Ayres.
- [2]The QBCC 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.
- [3]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.
- [4]Ms Ayres indicated that she received the decision on 23 April 2020. The application for review was therefore required to be made by 21 May 2020.
- [5]On 27 October 2020, Ms Ayres filed an application to review the decision with the Tribunal. The application was filed out of time, so Ms Ayres also filed an application for an extension of time on the same date.
- [6]Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘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.
- [7]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:[1]
- (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.
- (a)
- [8]
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
- [9]On 21 May 2020, Ms Ayres lodged an application for a domestic building dispute with the Tribunal, in which she named the QBCC as the second respondent. This proceeding was numbered BDL117-20.
- [10]On 6 August 2020, the Tribunal removed the QBCC as the second respondent in BDL117-20.
- [11]On 25 September 2020, a compulsory conference was held in BDL117-20.
- [12]On 23 November 2020, Ms Ayres lodged a notice of withdrawal in BDL117-20, in which she stated:
Note that this case is being pursued through QBCC rather than the respondent directly – QCAT case #GAR416-20.
- [13]Ms Ayres lodged the following statement in support of her application for an extension of time in the present proceedings:
After obtaining independent legal advice prior to the original submission of cases BDL117-20, both QBCC and Wesley Michael Hudson were submitted within the same application as recommended by my lawyer. I put all my trust into the advice given by this lawyer, given it is his profession to provide accurate advice in all aspects of the law.
It wasn’t until the directions hearing that the Member for this case noted that the two respondents could not be dealt with in the same application and thus handed down a decision to remove QBCC; (whom at the time was unprepared and not legally represented), and pursue the contractor applicant; Mr Wesley Hudson who had legal representation prepared. Given the orders were the same for both respondents, I agreed to this decision.
After an unsuccessful hearing with Mr Wesley Hudson (no resolution was agreed upon), the Member advised that I could pursue the QBCC if I re-filed an application however, would now need to request an extension of time given the lengthy time taken to pursue Mr Hudson. Thus, I would like to re-file my application against QBCC who are equally responsible for the defective work carried out by one of their licenced contractors.
…
The QCAT processes have been lengthy due to Covid. This application has been years in the making and my family are the ones that continue to suffer. The original application (BDL117-20) was filed within the 28-day time frame as required by QBCC/QCAT. Submission of this application (GAR416-20) surpasses the 28-day time frame, however, has been unavoidable and largely out of my control. I have done my very best to manage timeframes, make myself available for all hearings and ensure everything has been submitted on time.
…
This is my first interaction with the legal system, navigating processes, paperwork, seeking and obtaining legal advice, representing myself has all been an eye-opening experience for me …
- [14]I am prepared to accept that Ms Ayres has a good reason for her delay, up until the time that the QBCC was removed as the second respondent in BDL117-20 on 6 August 2020. Ms Ayres had acted in a timely manner and in reliance on legal advice, albeit erroneous advice.
- [15]However, I am not satisfied that Ms Ayres has provided a satisfactory explanation for her delay from 6 August 2020 until the filing of the application for review on 27 October 2020. Having been advised by the member that her application was out of time, one might have expected her to have shown a degree of urgency in filing the application for review rather than delaying a further approximately 11 weeks. While I appreciate that this may have been Ms Ayres first encounter with the Tribunal, the Form 23 ‘Application to review a decision’ is relatively straightforward and can be completed in a matter of minutes or hours, rather than days or weeks.
- [16]For completeness, I do not place any significance on the date of the compulsory conference on 25 September 2020. While Ms Ayres may or may not have received advice from the member at that conference, parties are not dependent upon the provision of advice from the Tribunal prior to exercising their rights. Ms Ayres was aware that she had no proceedings on foot against the QBCC from 6 August 2020, and the 28 day time limit had previously been set out in the QBCC’s decision.
Length of delay
- [17]Ms Ayres’ total delay in filing the application for review with the Tribunal was approximately five months. Relevantly, she delayed approximately 11 weeks in filing the application for review after the QBCC was removed as the second respondent in BDL117-20. In the context of a 28 day time limit, I consider an approximately 11 week delay to be substantial.
The strength of the case
- [18]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 Ms Ayres every benefit of the doubt, I will assume that her case has some merit.
Prejudice to adverse parties
- [19]The QBCC has not pointed to any specific prejudice.
Interests of justice
- [20]The interests of justice do not favour an extension. As Thomas J noted in Coppens,[3] 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 Ms Ayres to file this application after a substantial delay.
Conclusion
- [21]The absence of prejudice to the QBCC and the possibility of some merit to Ms Ayres’ case point in favour of extending the time for Ms Ayres to apply for review of the exclusion decision.
- [22]However, I am of the view that these factors are outweighed by the absence of a satisfactory explanation for the substantial delay after 6 August 2020 and the interests of justice. 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”.[4] Ms Ayres has not done this.
- [23]The application for an extension of time is refused. The application to review a decision is therefore dismissed.