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Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 62

Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 62

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor [2022] QCAT 62

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

MARK ELLIOT AGIUS

(second respondent)

APPLICATION NO/S:

GAR209-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. The application to extend time filed on 12 October 2020 is dismissed.
  2. The application to review a decision filed on 19 March 2021 is dismissed.

CATCHWORDS:

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 for an extension of time – where the applicant filed an application to review a decision out of time – whether application for an extension of time should be granted

Acts Interpretation Act 1954 (Qld), s 39A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 33, s 61

Cardillo v Queensland Building Services Authority [2011] QCAT 574

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

REPRESENTATION:

Applicant:

Connolly Suthers Lawyers

First Respondent:

Norton Rose Fullbright Australia

Second Respondent:

Self-represented

APPEARANCES:

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. [1]
    On 30 July 2020, the Queensland Building and Construction Commission (‘QBCC’) decided that Gedoun Constructions Pty Ltd (‘Gedoun’) had not completed works as directed by the QBCC.
  2. [2]
    The letter advising Gedoun 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.

  1. [3]
    I note that s 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. 
  2. [4]
    In Part B of the application for review form, Gedoun advised that it received the QBCC decision on 30 July 2020.  Accordingly, the application for review was therefore required to be made by 27 August 2020.
  3. [5]
    On 12 October 2020, Gedoun filed an application for an extension of time.
  4. [6]
    On 19 March 2021, Gedoun filed an application to review the decision with the Tribunal. 
  5. [7]
    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. 
  6. [8]
    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]
    1. (a)
      Whether a satisfactory explanation (or ‘good reason’) is shown to account for the delay.
    2. (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).
    3. (c)
      Prejudice to adverse parties.
    4. (d)
      Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one.
    5. (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.
  7. [9]
    In Coppens v Water Wise Design Pty Ltd (‘Coppens’),[2] 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

  1. [10]
    In his affidavit attached to the application for review, Joseph Gedoun as director of Gedoun stated:

I missed the date to review the 30 July 2020 decision.  Quite simply I had too much on my plate.  I had filed 2 other QCAT proceedings (GAR193-20 and GAR194-20 which had directions requiring material to be filed on 28 August 2020 (I later managed to obtain an extension of that timeframe).

In addition, the substantive building dispute between Gedoun and the owner went to trial for 5 days between 24 and 28 August 2020.  I attended the entire trial in Brisbane, which was away from my office in Townsville, during that week.  The trial is ongoing.  It is listed for a further 5 days on 12-16 April 2021 at which it is expected to conclude.

…

While I have been legally represented in proceedings BDL308-18, I was not at the time of the decision represented in QBCC matters.  I engaged solicitors to represent me in the QBCC proceedings in or about September 2020.  This application was filed soon afterwards.

Finally, the QBCC proceedings surrounding this case are the first time I have used the internal and external review proceedings contained in the QBCC Act.  I was under the mistaken belief that the 30 July 2020 decision of the QBCC would automatically be ‘caught up’ in review proceedings GAR193-20 which I had commenced in June 2020 (because it concerns the same complaint).  This is evident in my email dated 28 August 2020 in reply to the Commission’s letter of the same date.

  1. [11]
    I do not regard having ‘too much on my plate’ as being an acceptable explanation for the delay.  The Form 23: ‘Application to review a decision’ is a relatively straightforward form to complete.  It would have taken Mr Gedoun a matter of minutes rather than hours to complete, and I do not accept that having other proceedings on foot deprived Mr Gedoun of the time to complete the form.
  2. [12]
    Further, there is nothing in the decision sent by the QBCC to Gedoun that indicated that the matter would be ‘caught up’ to any other proceedings.  The decision clearly advised Gedoun of its review rights, which it was able to exercise previously in two other proceedings before the Tribunal.

Length of delay

  1. [13]
    There is some dispute in the present proceedings as to the extent of Gedoun’s delay.  This dispute arises out of Gedoun’s unusual course of filing an application for an extension of time on 12 October 2020, followed by the application for review itself five months later on 19 March 2021.
  2. [14]
    Without deciding the issue, I will give Gedoun the benefit of the doubt and regard the delay as having been from 27 August 2020 to 12 October 2020.  This is a six week delay.  In the context of a 28 day time limit, I am of the view that this is a considerable delay.

The strength of the case

  1. [15]
    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, I will again give Gedoun the benefit of the doubt and assume its application has some merit.

Prejudice to adverse parties

  1. [16]
    The QBCC has not pointed to any specific prejudice to it in its submissions.  No submissions were received from Mr Aguis.

Interests of justice

  1. [17]
    The interests of justice do not favour an extension.  As Justice Thomas 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 Gedoun to file this application after a considerable delay.

Conclusion

  1. [18]
    The absence of prejudice to the QBCC and the possibility of some merit to Gedoun’s case points in favour of extending the time to apply for review of the exclusion decision.
  2. [19]
    However, I am of the view that these factors are outweighed by the interests of justice and the absence of a satisfactory explanation for the 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’.[4]  As set out above, I would characterise Gedoun’s explanation for delay as being particularly weak.
  3. [20]
    The application for an extension of time is refused. The application to review a decision is therefore dismissed.

Footnotes

[1]  [2011] QCAT 229, 3 [9].

[2]  [2014] QCATA 309, 4 [14].

[3]  [2014] QCATA 309, 4 [14].

[4]  [2011] QCAT 574, 7 [33].

Close

Editorial Notes

  • Published Case Name:

    Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 62

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    25 Feb 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cardillo v Queensland Building Services Authority [2011] QCAT 574
2 citations
Jump To
Cite 1 - [2011] QCAT 574
Cite 2 - [2011] QCAT 574
Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
3 citations
Jump To
Cite 1 - [2014] QCATA 309
Cite 2 - [2014] QCATA 309
Cite 3 - [2014] QCATA 309
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
2 citations
Jump To
Cite 1 - [2011] QCAT 229
Cite 2 - [2011] QCAT 229
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
1 citation
Jump To
Cite 1 - [2017] QCAT 232

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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