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Haidar v Queensland Building and Construction Commission[2024] QCAT 293

Haidar v Queensland Building and Construction Commission[2024] QCAT 293

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Haidar v Queensland Building and Construction Commission [2024] QCAT 293

PARTIES:

AZIZULAH GHOLIAM HAIDAR

(applicant)

v

Queensland Building and COnstruction Commission

(respondent)

APPLICATION NO/S:

GAR207-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

24 July 2024

HEARING DATE:

On the papers

DECISION OF:

Member Taylor

ORDERS:

  1. 1.Pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the applicant’s Application to Review a Decision filed 15 March 2023 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks review of a decision of the Queensland Building and Construction Commission to ‘not accept’ an internal review application on the basis the application was made out of time – whether such a decision is a ‘reviewable decision’

Acts Interpretation Act 1954 (Qld), s 39, s 39A

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 28(3)(c), s 33, s 47, s 61

Judicial Review Act 1991 (Qld), s 4, s 20

Bloomer Constructions (Qld) Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 374

Queensland Building and Construction Commission v Cummings [2015] QCAT 130

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)

Applicant:

Self-represented

Respondent:

Dentons Australia

REASONS FOR DECISION

  1. [1]
    The applicant sought to have the respondent direct a builder to rectify defective work. He was partially unsuccessful. To the extent the respondent refused to direct rectification of part of the work complained of, the applicant sought to have that decision internally reviewed by the respondent. Once again he was met with a lack of success. The reason for this was that the respondent’s Internal Review Unit decided to ‘not accept’ his application for internal review on the basis it was lodged out of time.
  2. [2]
    In this Tribunal the applicant challenges that decision by seeking external review of it. He does not seek to have the original decision reviewed, that being the one not to direct rectification. On a third occasion he is met with a lack of success.
  3. [3]
    As I discuss it in these reasons, the internal reviewer’s decision to ‘not accept’ his application for internal review is not a reviewable decision for which this Tribunal has jurisdiction to consider. Such is the argument the respondent raised in an application made in this proceeding to dismiss the applicant’s application to this Tribunal. That application was successful and in turn the applicant’s application for external review has been dismissed.

Relevant Facts and Circumstances[1]

  1. [4]
    On 2 May 2022, the applicant filed a complaint with the respondent concerning what was said to be defective building work, as I understand it as performed on his property.
  2. [5]
    By way of a document dated 5 January 2023, in response to that complaint the respondent informed the applicant that a direction to rectify had been issued to the relevant builder, but also informing him that a direction to rectify a number of items of work the subject of the complaint would not be issued (‘the Original Decision’).
  3. [6]
    On 16 February 2023, the applicant filed an application with the respondent for an internal review of the Original Decision (‘the Internal Review Application’). In doing so he asserted he received the Original Decision on 19 January 2023.
  4. [7]
    On 17 February 2023, the respondent, via e-mail from its Internal Review Unit, informed the applicant that his Internal Review Application had been made out of time, and accordingly it had decided ‘not to accept’ it (‘the Second Decision’). Therein the following statement appears:[2]

Unfortunately, the statutory timeframe for making an internal review application is 28 days. This period expired before the application was made. I have decided not to accept the application out of time.

The matter is now closed.

You may be able to have the original decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT) by making an external review application. …

  1. [8]
    On 20 February 2023 and 21 February 2023, in an exchange of e-mail between the applicant and the relevant officer of the respondent’s Internal Review Unit:
    1. The applicant repeated his assertion that he only received the Original Decision on 19 January 2023, it being received via post, thus his Internal Review Application was within time; and
    2. The respondent’s officer made this statement in response:

In considering timeframes for lodgement of your review (where the original decision was issued by post on 5 January 2023), I have allowed 4 business days for delivery of correspondence via Australia Post. This is in accordance with information provided by Australia Post as to their delivery times.

As you did not lodge your review until 16 February 2023 it is not within the allowable timeframes and the matter remains closed.

  1. [9]
    On 15 March 2023, the applicant lodged an Application to Review a Decision with this Tribunal (‘the External Review Application’). Therein he expressly identified the Second Decision as being the one which he sought to have this Tribunal review. In doing so he repeated the assertion made in his Internal Review Application, namely that he received the Original Decision on 19 January 2023, and on that basis he relied on the provisions of s 86B of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) asserting, as provided for therein, such was the date on which is was ‘given notice’ of the decision, ‘or otherwise became aware of the decision’ as those phrases are used therein.
  2. [10]
    What then followed was a series of directions given by this Tribunal for conduct of the proceeding. Ultimately what eventuated was that on 10 November 2023 the respondent filed an Application for Miscellaneous Matters seeking an order that pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Review Application to be dismissed and/or struck out (‘the Dismissal Application’).
  3. [11]
    That application was accompanied by extensive submissions. In a direction given by this Tribunal on 4 December 2023, the applicant was directed to file and serve any submissions he wished to make in response to the Dismissal Application, and thereafter the application would be determined on the papers.
  4. [12]
    On 21 December 2023, the applicant filed his submissions in response. Therein he asserted once again that he received the Original Decision on 19 January 2023, and in turn that his Internal Review Decision was made within time. He however went one step further, as was necessary to meet the Dismissal Application, asserting that the Second Decision is an ‘internal review decision’ within the meaning of s 86C of the QBCC Act and thus this Tribunal has jurisdiction to hear and decide his External Review Application.
  5. [13]
    It is on this basis the matter came before me as the Member constituting the Tribunal for determination of the Dismissal Application.

The Issue

  1. [14]
    The date on which the Original Decision was conveyed to the applicant is at the core of this proceeding. If it were established that the date on which the applicant was given notice of the Original Decision, or otherwise became aware of it, was 19 January 2023 then his Internal Review Application would have been made within time and the respondent would have been required to consider it.
  2. [15]
    But that is not the issue for consideration by this Tribunal. The issue is one which goes directly to the question of this Tribunal’s jurisdiction to consider the External Review Application. The respondent argued that the Second Decision was not a reviewable decision to the extent the Tribunal is given jurisdiction to review decisions of the Queensland Building and Construction Commission (‘QBCC’). If that was correct, then this Tribunal is without jurisdiction and accordingly the External Review Application should be dismissed.

Relevant Law

  1. [16]
    This Tribunal is empowered with a review jurisdiction which is conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under that enabling Act. Such arises under s 17 of the QCAT Act.
  2. [17]
    As is relevant in this proceeding, the enabling Act is the QBCC Act. Under Part 7 Division 3 Subdivision 2 therein, in particular s 87, this Tribunal is empowered to undertake a review of a ‘reviewable decision’ of the respondent.
  3. [18]
    Under s 86E of the QBCC Act, a ‘reviewable decision’ is defined to mean either:
    1. a reviewable decision within the meaning of subdivision 1 of that Part 7 Division 3, other than a decision that was the subject of an internal review under subdivision 1; or
    2. an internal review decision within the meaning of subdivision 1.
  4. [19]
    It is thus necessary to turn first to the meaning of a ‘reviewable decision’, such which is found in s 86 of the QBCC Act, it falling within that subdivision 1. For ease of reference I extract that provision in full here, such as was current at the time of the Original Decision:
  1. 86Reviewable decisions
  1. (1)
    Each of the following decisions of the commission under this Act is a reviewable decision—
  1. (a)
    a decision to refuse an application for a licence or a permit;
  2. (aa)
    a decision to refuse an application for renewal of a licence;
  3. (b)
    a decision to impose or vary a condition of a licence;
  4. (c)
    a decision to suspend or cancel a licence or permit;
  5. (d)
    a decision that there are reasonable grounds for concern that a licensee does not satisfy the minimum financial requirements;
  6. (e)
    a decision to give a direction to rectify or remedy or not to give the direction;
  7. (f)
    a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard;
  8. (g)
    a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work;
  9. (h)
    a decision to disallow a claim under the statutory insurance scheme wholly or in part;
  10. (i)
    a decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non-completion under the statutory insurance scheme;
  11. (j)
    a decision of the commission to take disciplinary action against a person under section 74F;
  12. (ja)
    a decision under section 50CB to give a person an exclusion notice;
  13. (k)
    a decision under section 56AF or 56AG that—
  1. (i)
    a person is an excluded individual or excluded company; or
  2. (ii)
    an individual is still a director or secretary of, or an influential person for, a company;
  1. (ka)
    if the commission gives an individual a notice under section 56AK(3)—
  1. (i)
    the commission’s decision that the individual is an excluded individual for a relevant event; or
  2. (ii)
    the commission’s decision under section 56AK(2) to publish the individual’s relevant details;
  1. (l)
    a decision under section 66 or 67 that a person is a convicted company officer;
  2. (m)
    a decision under section 67AA that a company that is a licensee has an individual who is a convicted company officer as a director or secretary of, or an influential person or nominee for, the company;
  3. (n)
    a decision under section 67AH, 67AI, 67AL or 67AM that an individual is a banned individual for a stated term;
  4. (o)
    a decision under section 67AN that a company that is a licensee has an individual who is a banned individual as a director or secretary of, or an influential person or nominee for, the company;
  5. (p)
    a decision under section 67AZF, 67AZJ or 67AZK that an individual is a disqualified individual for a stated term;
  6. (q)
    a decision under section 67AZL that a company that is a licensee has an individual who is a disqualified individual as a director or secretary of, or an influential person or nominee for, the company;
  7. (r)
    a decision to direct a person in the chain of responsibility for a building product to take stated action under section 74AL(5);
  8. (s)
    a decision to give a direction under section 74AN;
  9. (t)
    a decision not to accept a building product undertaking under part 6AA, division 3;
  10. (u)
    a decision not to agree to a withdrawal or variation of a building product undertaking under section 74AT.
  1. (2)
    Also, a decision of the commission or commissioner under any of the following provisions is a reviewable decision—
  1. (a)
    the Building Act 1975, section 157, 169, 177, 204, 214K, 245O, 245Q, 246BJ, 246BP, 246BT, 246BZ or 246CY;
  2. (aa)
    the Building Industry Fairness (Security of Payment) Act 2017, section 54E;
  3. (b)
    the Plumbing and Drainage Act 2018, section 19, 29, 32, 34, 38 or 51;
  4. (c)
    section 106J(4)(a), 106K or 108AI.
  1. (3)
    Further, a decision of the commissioner relating to the accumulation of demerit points by a pool safety inspector under the Building Act 1975 is a reviewable decision.
  2. (4)
    In addition, each of the following decisions of an investigator is a reviewable decision—
  1. (a)
    a decision to seize a place, part of a place, building, structure or other thing under part 9, division 6;
  2. (b)
    a decision to require information or attendance before the investigator under section 105T;
  3. (c)
    a decision to give a direction under section 106P or 106Q.
  1. [20]
    As is in turn relevant to the issue raised in this proceeding, it is necessary to note the provisions of the QBCC Act which provide for internal review, and then external review. Once again for ease of reference I extract here, in full, those provisions, also as current at the time of the Original Decision:
  1. 86A Who may apply for internal review
  1. (1)
    A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.
  2. (2)
    However, subsection (1) does not apply if the person has applied to the tribunal for a review of the reviewable decision under subdivision 2.
  3. (3)
    Also, if—
  1. (a)
    the person applies for an internal review of the reviewable decision; and
  2. (b)
    before the application is decided, the person applies to the tribunal for review of the reviewable decision under subdivision 2;

the application for internal review of the decision lapses.

  1. 86B Requirements for making application

An internal review application must—

  1. (a)
    be made within the following period—
  1. (i)
    28 days after the applicant is given notice of the reviewable decision to which the application relates or otherwise becomes aware of the decision; or
  2. (ii)
    a longer period allowed by the internal reviewer, whether before or after the end of the 28-day period mentioned in subparagraph (i); and
  1. (b)
    be lodged at an office of the commission.
  1. 86C Internal review decision
  1. (1)
    If an internal review application is made under section 86B, the internal reviewer must, as soon as practicable but within the required period, make a new decision (the internal review decision) as if the reviewable decision the subject of the application had not been made.
  2. (2)
    For subsection (1), the required period is—
  1. (a)
    28 days after the internal review application is made; or
  2. (b)
    a longer period agreed to by the applicant.
  1. (3)
    However, if the internal reviewer does not decide the application within the required period, the internal reviewer is taken to have made an internal review decision at the end of the required period that is the same as the reviewable decision.
  2. (4)
    If the internal reviewer is the commission, the application must not be dealt with by—
  1. (a)
    the person who made the reviewable decision; or
  2. (b)
    a person in a less senior office than the person who made the reviewable decision.
  1. (5)
    Subsection (4)—
  1. (a)
    applies despite the Acts Interpretation Act 1954, section 27A; and
  2. (b)
    does not apply to a reviewable decision made by the commissioner personally.
  1. 86D Notice of internal review decision
  1. (1)
    As soon as practicable after an internal review decision is made, or is taken to have been made, under section 86C, the internal reviewer must give the applicant and any other person affected by the decision written notice (the review notice) of the decision.
  2. (2)
    The review notice must state—
  1. (a)
    the decision; and
  2. (b)
    the reasons for the decision; and
  3. (c)
    that the person may, if dissatisfied with the internal review decision, within 28 days after the person is given the notice apply to the tribunal for external review of the decision under subdivision 2; and
  4. (d)
    how to apply for review of the decision.
  1. [21]
    Another relevant provision is s 47 of the QCAT Act, that being the provision under which the respondent seeks the relief it expresses in its Dismissal Application. Once again for ease of reference I extract that here to the extent relevant in this proceeding:
  1. 47 Dismissing, striking out or deciding if unjustified proceeding or part
  1. (1)
    This section applies if the tribunal considers a proceeding or a part of a proceeding is—
  1. (a)
    frivolous, vexatious or misconceived; or
  2. (b)
    lacking in substance; or
  3. (c)
    otherwise an abuse of process.
  1. (2)
    The tribunal may—
  1. (a)
    if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
  2. (b)
    …
  3. (c)
    ….
  1. (3)
    The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative.
  2. (4)
    The tribunal’s power to act under subsection (2) is exercisable only by—
  1. (a)
    the tribunal as constituted for the proceeding; or
  2. (b)
    ….
  1. [22]
    Finally, as will become evident in reading of the reasons that follow herein, the remaining relevant legislative provisions are found in of the Acts Interpretation Act 1954 (Qld) (the ‘AIA’). Once again for ease of reference I extract those provisions, to the extent relevant, here:
  1. 39 Service of documents
  1. (1)
    If an Act requires or permits a document to be served on a person, the document may be served—
  1. (a)
    on an individual—
  1. (i)
    …; or
  2. (ii)
    by leaving it at, or by sending it by post, … to, the address of the place of residence or business of the person last known to the person serving the document; or
  1. (b)
    ….
  1. (2)
    Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  2. (3)
    ….
  1. 39AMeaning of service by post etc.
  1. (1)
    If an Act requires or permits a document to be served by post, service—
  1. (a)
    may be effected by properly addressing, prepaying and posting the document as a letter; and
  2. (b)
    is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
  1. (2)
    …
  2. (3)
    Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.

Discussion on the Issue

  1. [23]
    In my opinion it was not necessary for me to enter into a detailed discussion on the extensive submissions made by the respondent. This is because, as I discuss in the paragraphs that follow here, the applicant was effectively seeking this Tribunal to review a decision made by the respondent which is not a ‘reviewable decision’ for the purposes of s 87 of the QBCC Act.
  2. [24]
    But before embarking on that discussion, whilst not necessary for the purposes of deciding the Dismissal Application, as a threshold issue given it is for the applicant’s benefit I discuss here the premise for the case he pressed in this proceeding, namely the date on which he asserts he was given notice of the Original Decision.

The date of receipt of the Original Decision

  1. [25]
    His assertion that the date was 19 January 2023 is devoid of any substance given in support of it. It is a bare assertion. He has not provided any material to show that this is a fact which should be accepted as being correct.
  2. [26]
    On the respondent’s material filed, the Original Decision is contained in a document dated 5 January 2023. It is shown as being addressed to the applicant care of a Miss Shogofa Azizullah at a street address in Underwood, which I know to be a suburb of Brisbane. The decision records that it is in terms of building work at what is shown therein to be the same address as the applicant gives in his Internal Review Application, and his External Review Application, as being his address, it being one in Carindale which I also know to be a suburb of Brisbane.
  3. [27]
    Firstly, it must be observed that the applicant does not provide any evidence of, nor even suggest, that the document was not mailed on 5 January 2024, or that if mailed that day the proper payment for postage had not been made such that it might have caused a delay in it being transmitted via Australia Post. Such are issues that arise for consideration in terms of the application of s 39 and s 39A of the AIA to which I referred earlier herein.
  4. [28]
    Secondly, he does not provide any evidence of, nor even suggest, that the address shown thereon was not the correct address, something which might have caused a delay in the document ultimately reaching him. Nor does he give any explanation as to why this address is given on the Original Decision document, and whether that had some impact on him not having received the document until 19 January 2023.
  5. [29]
    Thirdly, and critically, nor does he provide any statement from Miss Azizullah as to her having received the document on a particular date and then subsequently transmitting it to the applicant such that he did not receive it until 19 January 2023.
  6. [30]
    As was stated by the respondent’s officer in the e-mail exchange of 20 and 21 February 2023 to which I referred earlier, the Original Decision document was issued by post on 5 January 2023, to which four days was added to allow for delivery via Australia Post. It is unclear as to whether the officer allowed calendar days or business days, but erring on the side of caution and allowing this to be business days it would mean the document would have been received in the ordinary course of post not later than 11 January 2023. This would thus have required the application for internal review to be made by 8 February 2023.
  7. [31]
    On my reading of the applicant’s material before this Tribunal, it seems to me that what he has entirely overlooked is the fact that the time period of 28 days for him having to have acted on the Original Decision in terms of a review application is that which is mandated by a legislative provision. The language of s 86A and s 86B of the QBCC Act is cast in terms of the Original Decision having been ‘given’ to him, and as provided for under s 39(2) and s 39A(3) of the AIA the expression ‘give’ is sufficient to encompass these provisions. In terms of those provisions read in conjunction with the provisions of the QBCC Act to which I have referred, on my reading of the material before this Tribunal the inference may properly be drawn that the Original Decision document was properly addressed, prepaid, and posted on 5 January 2023. Thus, it may be said that s 39(1)(a)(ii) and s 39A(1)(a) of the AIA have both been satisfied. Accordingly it follows that under s 39A(1)(b), the giving of the Original Decision document was effected on the applicant ‘at the time at which the letter would be delivered in the ordinary course of post’, unless the contrary was proved. But the applicant has not sought to prove the contrary. He merely makes a bare assertion of a contrary fact.
  8. [32]
    The respondent’s officer asserts that 4 days was allowed for this purpose. Whilst no evidence is provided by the respondent as to from where that 4 days was ascertained, as this Tribunal is entitled to do it may inform itself in any way it considers appropriate.[3] My search of the Australia Post delivery times, readily available via a public internet search, for regular post from Postcode 4001 (being the respondent’s address post code) to Postcode 4119 (being the postcode of the address for the applicant shown on the Original Decision document), informs me that the estimated delivery time is now 3 to 4 business days.[4] This is consistent with the duration allowed for by the respondent’s officer as I mentioned it earlier.
  9. [33]
    All that being said, if I were required to have done so I could have readily concluded that, absent any evidence to prove the contrary, the Original Decision document would be deemed to have been given to the applicant not later than 11 January 2023. Thus, as I mentioned it earlier herein, under s 86B of the QBCC Act his Internal Review Application was required to have been made by 8 February 2023. He did not lodge it by that date. He was out of time in doing so and accordingly, in the absence of this period of time having been extended by the internal reviewer, his Internal Review Application was invalid and accordingly there was no basis upon which an internal review decision under s 86C of the QBCC Act could be made.

The Second Decision is not a Reviewable Decision

  1. [34]
    Whilst the Second Decision was expressed as being to ‘not to accept’ the Internal Review Application on the basis that it was made out of time, it was effectively a decision made under s 86B (a)(ii) not to allow a longer period of time from the 28 day period afforded the applicant. That is a decision which falls solely within the discretion of the internal reviewer to whom the Internal Review Application would have been referred. It is not a decision for the purposes of s 86 of the QBCC Act, such which the respondent has correctly identified as being an ‘exhaustive list’ as distinct to an ‘inclusive list’.[5] It may readily be observed that the list of what is a ‘reviewable decision’ is extensively described in the Act, that list notably not including a decision of the respondent’s internal review made under s 86B(a)(ii) of the QBCC Act.
  2. [35]
    It thus follows that despite the applicant’s argument to the contrary seemingly reliant on the provisions of s 86C of the QBCC Act, more importantly and critically this is not a ‘reviewable decision’ for the purposes of s 86C. A ‘reviewable decision’, as referred to therein, only arises from an internal review application having validly been made. When the application is ‘out of time’, that is beyond the allowed 28 day period or any longer period that may have been allowed by the internal reviewer, then it is not a valid ‘internal review application’ and so cannot lead to an internal review decision being made that can then addressed further by external review to this Tribunal.
  3. [36]
    As was noted succinctly by the Appeal Tribunal in Queensland Building and Construction Commission v Cummings [2015] QCAT 130 at [49], the jurisdiction of this Tribunal to review decisions of the Commission is defined in s 87 of the Act. That provision limits this Tribunal’s jurisdiction to applications of reviewable decisions of the respondent. There is no power to be found otherwise in the QBCC Act, being the relevant empowering Act for the purposes of the decision sought to be reviewed, for this Tribunal to go beyond that and review the Second Decision.

The External Review Reference

  1. [37]
    Finally, given that it is an issue the applicant raised in his submissions in response to the Dismissal Application I make this further observation herein.
  2. [38]
    The applicant stated this in his submissions:[6]

This internal review decision was made on 17 February 2023, when Ms Padurean plainly stated that the Applicant could review her decision by way of external review at QCAT.

  1. [39]
    Whilst the applicant ‘set out’ within his material accompanying his External Review Application his submissions to the respondent in respect of what he described as his ‘original appeal’ to the Original Decision, which he says were ‘ignored’ by the internal reviewer, he was not pressing for this Tribunal to review that Original Decision. As I understood the submission I referred to in the last paragraph, it is in terms of the content of the Second Decision with the comment contained therein being in terms of the availability of external review as I have noted it in paragraph [7] herein.
  2. [40]
    If that is correct, the applicant has misunderstood this comment. As it was expressed, it is in terms of the possibility of external review of the Original Decision. It is not in reference to the Second Decision. Whilst the applicant has proceeded by way of his External Review Application, he has not sought review of the Original Decision but rather of the Second Decision, such which was not referred to by the respondent’s officer in the Internal Review Unit. His submission is without substance.

Conclusion

  1. [41]
    I expect that the applicant might consider the outcome of this proceeding to be unfair to him in that he sought to challenge a decision made by an officer of the respondent. Whether or not that is a valid thought, it is not something this Tribunal is concerned with. Whilst he did not expressly raise any such argument, having read these reasons and my decision, if he were to think it the following observations should be noted.
  2. [42]
    Firstly, returning once again to the reasons of the Appeal Tribunal in Queensland Building and Construction Commission v Cummings, as was observed therein such arguments are a criticism of the policy which is a matter dealt with by Parliament and not this Tribunal.[7]
  3. [43]
    Secondly, it must also be observed that he had the right to have the Original Decision externally reviewed by this Tribunal without having first taken the matter on internal review.[8] Such would have required him to have filed his application in this Tribunal within 28 days of him having been notified of the Original Decision, but in such instance he could have applied to this Tribunal to have that time limit extended which might or might not have been successful.[9] But he did not take that path.
  4. [44]
    Thirdly, whilst I do not make any definitive finding that it be so, he might have had recourse under the Judicial Review Act 1991 (Qld) to have the Second Decision judicially reviewed in the Queensland Supreme Court as an administrative decision made under an enactment such which included the exercise of a discretion, such that inter-alia it was an improper exercise of power conferred under the QBCC Act under which it was purported to be made,[10] namely the decision not to have allowed a longer period for the Internal Review Application to have been made such which was within the respondent’s internal reviewer’s discretion as provided for under s 86B(a)(ii) of the QBCC Act. But once again it should be observed he did not take that path.
  5. [45]
    Rather, the applicant chose a path that was not open to be taken. He sought to invoke the jurisdiction of this Tribunal in circumstances where that jurisdiction did not exist. For this reason, as I have explained it in detail herein, his External Review Application is entirely misconceived.
  6. [46]
    It follows that, as the respondent argues, pursuant to s 47(2)(a) of the QCAT Act the application must be dismissed. An order was made to that effect.

Footnotes

[1] The applicant’s material filed in this proceeding was sparse on detail. These details have been sourced from the respondent’s submissions given in support of its Application for Miscellaneous Matters filed 10 November 2023.

[2] The Bold emphasis is as it appears in the original.

[3] QCAT Act s 28(3)(c). See also s 28(3)(e) which requires the Tribunal to ensure that it has all relevant material to decide the proceeding with all the relevant facts.

[4] As shown on the search results, Australia Post has relatively recently amended many of its estimated delivery times extending them from previously stated times. It is not evident from the search as to whether this is an extended time or the same as what was previously given; however it does not matter given the consistency with the time allowed for by the respondent’s internal reviewer.

[5] Consider Bloomer Constructions (Qld) Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 374, [9].

[6] Emphasis by italics is as it appears in the original.

[7] Queensland Building and Construction Commission v Cummings [2015] QCATA 130, [77].

[8] See QBCC Act s 86E(a).

[9] See QBCC Act s 87 read in conjunction with QCAT Act s 33(3) and s 61.

[10] See s 4 and s 20 therein.

Close

Editorial Notes

  • Published Case Name:

    Haidar v Queensland Building and Construction Commission

  • Shortened Case Name:

    Haidar v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 293

  • Court:

    QCAT

  • Judge(s):

    Taylor

  • Date:

    24 Jul 2024

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
Bloomer Constructions (Qld) Pty. Ltd. v Queensland Building and Construction Commission [2016] QCAT 374
2 citations
Jump To
Cite 1 - [2016] QCAT 374
Cite 2 - [2016] QCAT 374
Queensland Building and Construction Commission v Cummings [2015] QCATA 130
1 citation
Jump To
Cite 1 - [2015] QCATA 130
Queensland College of Teachers v Ku [2015] QCAT 130
2 citations
Jump To
Cite 1 - [2015] QCAT 130
Cite 2 - [2015] QCAT 130

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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