Morgan and Commissioner of State Revenue
[2022] QCAT 397
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- Unreported Judgment
- Morgan and Commissioner of State Revenue[2022] QCAT 397
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Morgan and Commissioner of State Revenue[2022] QCAT 397
Morgan and Commissioner of State Revenue[2022] QCAT 397
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Morgan and Commissioner of State Revenue [2022] QCAT 397 | ||
PARTIES: |
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APPLICATION NO/S: | GAR684-21 | ||
MATTER TYPE: | General administrative review matters | ||
DELIVERED ON: | 17 November 2022 | ||
HEARING DATE: | 27 October 2022 | ||
HEARD AT: | Brisbane | ||
DECISION OF: | Member Bishop | ||
ORDERS: | The application to review a decision is dismissed. | ||
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – when application made out of time allowed in enabling Act – whether to exercise power to extend time First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 | ||
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REASONS FOR DECISION
- [1]Ms Morgan made an application for the HomeBuilder Grant and her application was refused on 12 May 2021. Ms Morgan objected to that decision and a Senior Review Officer (SRO) confirmed the decision under review on 27 July 2021.
- [2]On 27 July 2021, Ms Morgan was sent an email advising her of the outcome of the objection and attaching a “Notice of decision and statement of reasons” (the Notice). The Notice included the following information:
Your rights of further review
If you are dissatisfied with the decision on your objection, you may apply for a review of the decision by the Queensland Civil and Administrative Tribunal (the Tribunal) as provided under the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
Unless otherwise ordered by the Tribunal, the grounds of application for review are limited to the grounds of objection.
To apply to the Tribunal for a review of this decision, the QCAT Act prescribes that you must file an application in the approved form in the Tribunal registry within 60 days after you receive this notice of decision…
- [3]The Notice contained contact details for the Tribunal.
- [4]Based on the evidence before it, the Tribunal is satisfied Ms Morgan received the Notice on 27 July 2021 and, under section 59 of the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld), she had until 27 September 2021 to file an application for review in the Tribunal.
- [5]On 19 October 2021 Ms Morgan had a conversation with the SRO who reviewed the original decision. Ms Morgan is recorded as stating Don Brown (MP) had told her to lodge an application with QCAT. The SRO advised Ms Morgan her application should have been lodged on or before 27 September 2021 and she was now out of time. The SRO recorded she advised “her only choice was to lodge a Ministerial or a complaint.”[1]
- [6]Ms Morgan made an application to QCAT on 9 December 2021. The Tribunal finds Ms Morgan filed her application outside of the time allowed.
- [7]Under section 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act) the Tribunal can extend a time limit fixed for the start of a proceeding by an enabling Act. However, the Tribunal cannot extend time if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.[2]
- [8]On 17 December 2021 Ms Morgan was directed to file in the Tribunal an application for an extension of time and supporting written submissions but failed to do so.[3] On 13 January 2022[4] Ms Morgan was again directed to file in the Tribunal an application for an extension of time and supporting written submissions but failed to do so. On 14 February 2022[5] Ms Morgan was directed to file in the Tribunal a reasonable excuse for her failure to comply with the directions dated 13 January 2022. On 23 February 2022 Ms Morgan sent an email to the Tribunal stating she did not receive the directions dated 13 January 2022. She states she did not lodge her application within 60 days because she had a medical condition and Don Brown’s electoral office was following the matter up with “Queensland Ministry”.[6]
- [9]Despite being directed to do so, Ms Morgan has not filed in the Tribunal a formal application for an extension of time - although she has provided reasons for her delay. However, the Tribunal can extend a time on its own initiative.[7]
- [10]On 17 January 2022 the Commissioner of State Revenue (the Commissioner) lodged an application in the Tribunal to dismiss or strike out the proceedings. The Commissioner submitted the Tribunal should not exercise its power to extend the time to file and should dismiss the application for lacking in substance under section 47 of the Act.
- [11]On 14 February 2022 Ms Morgan was directed to file a response to the Commissioner’s application. On 23 February 2022 Ms Morgan emailed to the Tribunal paperwork from a builder certifier approving “the building of the granny flat.”[8]
- [12]When exercising the Tribunal’s discretion to grant an extension of time the relevant factors for consideration were summarised in Crime and Misconduct Commission v Chapman & Anor[9] to be:
- (a)whether there is a satisfactory explanation or good reason for the delay;
- (b)the strength of the case the applicant wishes to bring;
- (c)the likelihood of prejudice to the other parties;
- (d)the length of the delay; and
- (e)overall, whether it is in the interests of justice to grant the extension.
- (a)
Reason for the delay
- [13]Ms Morgan’s reasons for the delay were twofold. One, she had a medical condition and, two, Don Brown’s electoral office (the MP’s office) was following the matter up. Ms Morgan did not provide details about when she had a medical condition or how that condition precluded her from making her application sooner. Nor did she provide supporting medical documentation. Based on the evidence before it, the Tribunal is not satisfied Ms Morgan’s delay was caused by a medical condition.
- [14]Ms Morgan did provide emails between herself and the MP’s office about her application for the grant being refused. Those emails indicated Ms Morgan contacted the MP’s office on 16 September 2021 and emailed documents to them on 17 September 2021.[10] On 5 October 2021 the MP’s office advised Ms Morgan to lodge an application at QCAT within 60 days.[11] On 19 October 2021 Ms Morgan replied that she was too late for QCAT and had been advised to go through the local Minister.[12] Ms Morgan then asked the MP’s office to follow up with the housing minister on 1 November 2021.[13]
- [15]Ms Morgan was advised on 5 October 2021 to lodge an application for review of the decision with QCAT within 60 days but failed to follow up on that advise until 19 October 2021 when she contacted the SRO. On 19 November 2021, the MP’s office advised Ms Morgan that it would be inappropriate for their office or the Commissioner to comment further on the matter, that QCAT had the discretion to extend time and she should contact QCAT to discuss her options.[14]
- [16]The Tribunal accepts Ms Morgan acted on the erroneous advice of the SRO and pursued, what she believed, to be her only option of lodging a Ministerial or a complaint from 19 October 2021 until 19 November 2021 (31 days). However, the Tribunal is not satisfied that was a reason for the other 42 days delay.
- [17]Based on the evidence before it, the Tribunal is not satisfied Ms Morgan has a good reason for the delay.
Strength of the case
- [18]Ms Morgan applied for the HomeBuilder grant on 7 December 2020.[15] The administrative direction Australian Government HomeBuilder Grant – Queensland (the Direction) in force at the time stated an eligible transaction for the payment of the grant included:
A substantial renovation contract made by the freehold owner of a home in Queensland if the contract commencement date is between 4 June 2020 and 31 December 2020 (both dates inclusive) and the construction commencement date is on or after the contract commencement date and within 3 months of the contract commencement date….
- [19]The Direction states a substantial renovation contract is not an eligible transaction if the consideration was less than $150,000 or more than $750,000.
- [20]Ms Morgan’s completed HomeBuilder grant application form indicated she entered a renovation contract for $162,000 on 30 August 2020 with herself as the builder. She indicated she provided, amongst other things, copies of the building contract, evidence of construction commencement and receipts showing $150,000 had been paid to the builder. However, no building contract or receipts showing $150,000 had been paid were before the Tribunal. What was before the Tribunal was a quote for the supply of labour dated 30 August 2020 for $26,1232.80.
- [21]The Commissioner submitted to the Tribunal Ms Morgan’s grant application was refused, in part, because she had not entered into a written contract with a builder, and she had not provided evidence of at least $150,000 being paid to that builder.[16] On its face those evidentiary issues remain outstanding.
- [22]On 23 February 2022 Ms Morgan sent the Tribunal a building approval for a “Detached Dwelling Extension (Two Bedrooms with Veranda).”[17] In the covering email she advised the Tribunal it was the approval paperwork for “the building of the granny flat”.[18] The Direction defines a substantial renovating contract as:
- a contract for the renovation of an existing dwelling which substantially alters the existing dwelling and improves the accessibility or safety or liveability of the property…
But does not generally include:
a. a contract for the construction of a standalone granny flat……
- [23]Based on a preliminary assessment of all the evidence before it, the Tribunal considers the success of Ms Morgan’s review application is poor.
Likelihood of prejudice to the other parties
- [24]The Commissioner submitted there is no prejudice to them that could not be remedied by an appropriate costs order and the Tribunal agrees with that submission. This factor supports granting an extension of time.
Length of the delay
- [25]Ms Morgan delayed lodging her application for 74 days. In the context of a 60-day time limit, the Tribunal is of the view that this is a considerable delay.
Interests of justice
- [26]Although no prejudice to the other party was identified that could not be remedied by costs, the Tribunal was not satisfied Ms Morgan had a good reason for the considerable delay in making her application. And, on its face, the Tribunal considered the prospects of Ms Morgan’s application succeeding to be poor. These factors are not favourable to Ms Morgan and, overall, the Tribunal is not satisfied it is in the interests of justice to extend the time to 9 December 2021 for Ms Morgan to file her application for review.
Conclusion
- [27]The Tribunal has decided not to exercise its power to extend the time limit to file and the application to review a decision is therefore dismissed.
Footnotes
[1] See record of incoming telephone communication dated 19 October 2021.
[2] See section 61(3) of the Act.
[3] See Tribunal Directions dated 17 December 2021.
[4] See Tribunal Amended Directions dated 13 January 2022.
[5] See Tribunal Directions dated 14 February 2022.
[6] See email from Ms Morgan to the Tribunal dated 23 February 2022 and sent at 12.19pm.
[7] Section 61(4) of the Act.
[8] See email from Ms Morgan to the Tribunal dated 23 February 2022 and sent at 12.19pm.
[9] [2011] QCAT 229, 3 [9]; See also Reeve v Hamlyn [2015] QCATA 133.
[10] See email sent from Ms Morgan to Capalaba Electorate Office on 17 September 2021 at 10.39am.
[11] See email from Capalaba Electorate Office to Ms Morgan on 5 October 2021 at 9.05am.
[12] See email from Ms Morgan to Capalaba Electorate Office on 19 October 2021 at 11.21am.
[13] See email from Ms Morgan to Capalaba Electorate Office on 1 November 2021 at 11.51am.
[14] See email from Capalaba Electorate Office to Ms Morgan on 19 November 2021 at 1.51pm.
[15] HomeBuilder grant application form signed and dated 7 December 2020.
[16] Annexure A to Form 40 dated 17 January 2022.
[17] Decision Notice – Approval – Q570-21 received in the Tribunal on 23 February 2022.
[18] See email from Ms Morgan to the Tribunal on 23 February 2022 at 12.19pm.