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Simonds Queensland Constructions Pty Ltd v Queensland Building and Construction Commission[2023] QCAT 441

Simonds Queensland Constructions Pty Ltd v Queensland Building and Construction Commission[2023] QCAT 441

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Simonds Queensland Constructions Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 441

PARTIES:

simonds queensland constructions pty ltd

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR431-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 November 2023

HEARING DATE:

6 November 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

  1. The application to extend time to review the decision by the Queensland Building and Construction Commission to give a direction to rectify dated 29 March 2023 is refused.
  2. The amended application to review a decision insofar as it purports to review a decision by the Queensland Building and Construction Commission to refuse an application for internal review is struck out pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. The amended application to review a decision will proceed as an application to review the scope of works decision dated 9 August 2023.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application seeks to review multiple decisions – whether refusal to grant an extension of time to file an application for internal review is reviewable – where application to review decision to issue a direction to rectify out of time – whether discretion should be exercised to extend time to file the application to review – where application to review to proceed as an application to review a scope of works decision 

Queensland Building and Construction Commission Act 1991 (Qld), s 86C, s 86E, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 47, s 61

Crime and Misconduct Commission v Chapman [2011] QCAT 229

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

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

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. [1]
    The application before the Tribunal is an application to extend time to file an amended application to review.

Background

  1. [2]
    On 29 March 2023 the Queensland Building and Construction Commission notified the applicant of its decision to give it a direction to rectify (the DTR decision). The alleged defective work related to mortar disintegration which allegedly affected the external walls of the property.
  2. [3]
    The Commission’s Initial Inspection Report which preceded the decision to give a direction to rectify stated that the installation of the mortar had not been done in accordance with AS3700-2001 in that the mortar did not meet the required durability strength rating, which had resulted in the ‘mortar falling out and disintegrating effecting the structural integrity of the outer brickwork façade of the building’.
  3. [4]
    On 28 April 2023 the applicant applied for internal review of the DTR decision. On 11 May 2023 the Commission emailed the applicant advising that the application for internal review was made out of time and that an extension of time (of two days) would not be granted.
  4. [5]
    On 27 June 2023 the applicant filed an application to review the decision (initial review application) seeking a review of the decision of 11 May 2023 not to grant an extension of time.
  5. [6]
    On 25 July 2023 the Tribunal issued directions which required the applicant to either:
  1. provide submissions addressing whether the decision of 11 May 2023 is a reviewable decision; or
  1. identify any other decision it seeks to review, in which case the applicant must file an amended application to review that decision and, if required, an application to extend time.
  1. [7]
    On 18 August 2023 the applicant filed an amended application to review a decision and an application to extend time.
  2. [8]
    The amended application to review lists 3 decisions sought to be reviewed:
    1. the ‘internal review decision’ of 11 May 2023;
    2. the DTR decision of 29 March 2023; and
    3. the scope of works decision of 9 August 2023.

Consideration

  1. [9]
    Section 87 of the Queensland Building and Construction Commission Act 1991 (Qld) provides that an application may be made to the Tribunal for a review of a “reviewable decision”.
  2. [10]
    “Reviewable decision” is defined in s 86E for the purposes of Part 7, Division 3, subdivision 2 (which deals with external review) to mean a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of internal review; or an internal review decision.

The decision to refuse to extend time to apply for internal review

  1. [11]
    The decision of 11 May 2023 is not a reviewable decision within the meaning of subdivision 1 which defines ‘reviewable decision’ for the purposes of subdivision 1 by reference to s 86. The decision is not one listed in s 86. Nor is it an internal review decision as defined in s 86C. In fact, it was a decision to refuse an internal review.
  2. [12]
    The Tribunal does not, therefore, have jurisdiction to review the decision of 11 May 2023.

The scope of works decision

  1. [13]
    The amended decision also seeks to review the scope of works decision of 9 August 2023. An application to review a decision must be made within 28 days after the relevant day. “Relevant day’ is defined in s 33(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) as the day the applicant is notified of the decision. The amended application to review, insofar as it seeks review of the scope of works decision is within time.

The DTR decision

  1. [14]
    The amended application to review also seeks to review the DTR decision of 29 March 2023. The applicant received the DTR decision on 29 March 2023 and was therefore required to file an application for review by 26 April 2023. The applicant did not apply to review this decision in the Tribunal until 27 June 2023, when the initial review application was filed. Although the applicant identifies the reviewable decision to be the decision of 11 May 2023, under the heading ‘describe what you want to happen’ in the Form 23 the applicant indicates that it wants both the decision of 11 May 2023 and the DTR decision of 29 March 2023 overturned. In the circumstances, given the decision of 11 May 2023 is not reviewable, the initial review application is taken to be an application to review the DTR decision.
  2. [15]
    The application to review the DTR decision was made 63 days late.
  3. [16]
    The issue is then whether I should exercise my discretion to extend time under s 61 of the QCAT Act in respect of the application to review the DTR decision.

Whether to extend time to apply to review the DTR decision

  1. [17]
    Section 61 of the QCAT Act gives the Tribunal power to extend time fixed by the QCAT Act to start a proceeding. Section 61(3) provides that the Tribunal must not extend a time limit if that would cause prejudice or detriment to a party to a proceeding which was not able to be remedied by an appropriate order for costs or damages.
  2. [18]
    Applications under s 61 have been approached by the Tribunal as a two-stage process: first, by determining whether an order under s 61 would cause prejudice or detriment not able to be remedied by a costs order or damages; and secondly, in the absence of prejudice or detriment, consideration of other factors relevant to the exercise of the discretion contemplated by s 61.[1]
  3. [19]
    There was no evidence of prejudice or detriment provided by the respondent. I move then to consider other factors relevant to the exercise of my discretion.[2]
  4. [20]
    The relevant factors were summarised in Crime and Misconduct Commission v Chapman[3] as follows:
    1. whether a satisfactory explanation (or “good reason”) is shown to account for the delay;
    2. 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. prejudice to adverse parties;
    4. length of the delay, noting a short delay is usually easier to excuse than a lengthy one;
    5. overall, whether it is in the interests of justice to grant the extension (which usually calls for some analysis of the above factors considered in combination).[4]
  5. [21]
    The factors in Chapman were applied by the President of the Tribunal, Justice Thomas, in Coppens v Water Wise Design Pty Ltd[5] where it was held:

As was noted by Judicial Member Thomas, the legislature must have had a good reason for fixing a time limitation period. Clear definition of time limits assists in achieving the object outlined in section 3(b) of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.

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 [R v Twindale [2009] QCA 200].

For these reasons, the underlying premise is that, in the absence of compelling circumstances, time limits must be complied with and should be enforced by the Tribunal. It is a matter for the applicant to establish any circumstances which would, in the interests of justice, require a departure from this position.

  1. [22]
    I turn now to consider the relevant factors.
  2. [23]
    The application to review was filed 63 days late, which is not an insignificant delay.
  3. [24]
    I note however that the applicant did make it clear to the Commission that it wished to internally review the decision when it lodged its application with the Commission on 28 April 2023.
  4. [25]
    The applicant has not, in my view, provided a satisfactory explanation for the delay. The reason given, that the ‘root cause’ for the delay was the unreasonable basis for the decision on 11 May 2023, does not explain why it took from 11 May to 27 June to file an external review. The further reason given, namely that the process became difficult to manage because it was not clear precisely what work was defective also does not address, in my view, the delay in applying for review. If the applicant considered only some of the work was defective, then that is reason for applying for external review, not a reason to delay in doing so.
  5. [26]
    It appears, from the material before me, that the applicant’s issue with the direction to rectify is that ‘the scope of the defect’ is not ‘adequately described’. The same complaint is made in respect of the scope of works decision, namely that it does ‘not adequately explain the extent of the defect and therefore what needs to be done to rectify it.’
  6. [27]
    The applicant referred to the QBCC Inspection report where it provides at [2]:

In some areas very little pressure was applied to remove the mortar, but in other areas the mortar was to full strength and was more difficult to remove by scratching.

  1. [28]
    The applicant submitted that it would suffer substantial loss if a claim were approved under the statutory insurance scheme to replace the entirety of the mortar when that is not necessary. This is because the applicant may be liable to indemnify the scheme for any payment made to the homeowners under the scheme.
  2. [29]
    Further, the applicant submitted, although the ‘most utilitarian outcome’ would be for the Tribunal to determine the appropriate scope for the rectification work on review of the scope of works decision, the issue with that approach is that the appropriate scope of works cannot be determined without first ascertaining the extent of the defective work.
  3. [30]
    The decision to issue a direction to rectify is a review of the decision to issue one, not a review of the direction itself. The Tribunal, in reviewing a decision to issue or not to issue a direction to rectify exercises the power in s 72 of the QBCC Act which requires the Tribunal to consider whether:
    1. the work is building work;
    2. the building work is defective or incomplete;
    3. the applicant carried out the building work; and
    4. it would be unfair to give the direction.
  4. [31]
    In my view, based on the material before me, it appears there was a sufficient basis for issuing a direction. Indeed, the applicant appears to accept this to be the case at [23] of its submissions where it states:

Simonds is and always has been willing to rectify the mortar defect and has tried to rectify the defect….

  1. [32]
    It follows, in my view, that for the purposes of exercising my discretion in relation to the extension of time, a review of the decision to issue a direction to rectify decision has limited merit.
  2. [33]
    The applicant raises issues concerning the extent of the work required to rectify the mortar defect. The applicant is within time to review the scope of works decision which requires the Tribunal to consider afresh what work is reasonable and necessary to rectify the defective building work.
  3. [34]
    In my view, in all the circumstances, the interests of justice do not support the granting of an extension of time to file the application to review the decision to issue a direction to rectify, in particular where there was no satisfactory explanation for delay; the work appears to be defective; the applicant appears to accept the work is, at least in part, defective; and there is a scope of works review on foot.
  4. [35]
    Accordingly, the application to extend time to file the application to review the decision to issue a direction to rectify is refused. The amended application to review insofar as it purports to review a decision to refuse an extension of time to apply for internal review is struck out pursuant to s 47(1)(a) of the QCAT Act.
  5. [36]
    In the circumstances, the amended application to review will proceed as an application to review the scope of works decision dated 9 August 2023.

Footnotes

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

[2] Crime and Misconduct Commission v Chapman [2011] QCAT 229.

[3]  [2011] QCAT 229.

[4]  Ibid at [9].

[5]  [2014] QCATA 309 at [13]-[15] cited in Jensen v Queensland Building and Construction Commission [2017] QCAT 232.

Close

Editorial Notes

  • Published Case Name:

    Simonds Queensland Constructions Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Simonds Queensland Constructions Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 441

  • Court:

    QCAT

  • Judge(s):

    Senior Member Traves

  • Date:

    06 Nov 2023

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
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
3 citations
Jump To
Cite 1 - [2011] QCAT 229
Cite 2 - [2011] QCAT 229
Cite 3 - [2011] QCAT 229
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
2 citations
Jump To
Cite 1 - [2017] QCAT 232
Cite 2 - [2017] QCAT 232
R v Twidale [2009] QCA 200
1 citation
Jump To
Cite 1 - [2009] QCA 200

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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