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Francis v Queensland Building and Construction Commission[2024] QCAT 360

Francis v Queensland Building and Construction Commission[2024] QCAT 360

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Francis v Queensland Building and Construction Commission [2024] QCAT 360

PARTIES:

Leanne June Patricia Francis

(applicant)

v

QUEENSLAND BUILDING and CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR314-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

26 August 2024

HEARING DATES:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The time for filing the Application to review a decision is extended to 7 May 2024.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – 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 the application for an extension of time should be granted.

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

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

Anderson-Barr v Queensland Building and Construction Commission [2018] QCAT 438

Cardillo v Queensland Building Services Authority [2011] QCAT 574

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

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

Pavlovic v Queensland Building and Construction Commission [2020] QCAT 128

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

Introduction

  1. [1]
    On 7 May 2024, the Applicant filed in the Tribunal:
    1. an Application to review a decision (‘the Review Application’); and
    2. an Application to extend or shorten a time limit or for waiver of compliance with procedural requirement (‘the EOT Application’).
  2. [2]
    On 17 October 2023, the Respondent (‘the QBCC’) decided to decline an insurance claim by the Applicant (under the statutory insurance scheme established under the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’)) (‘the original decision’).
  3. [3]
    On 14 November 2023, the Applicant applied for an internal review of the original decision.
  4. [4]
    The QBCC did not make a decision in consequence of the internal review application within the 28 day period specified under s 86C(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) (or any extended period). Consequently, by operation of s 86C(3) of the QBCC Act, the internal reviewer was taken to have made an internal review decision that was the same as the original decision.
  5. [5]
    Accordingly, on 15 December 2023, the QBCC made a decision to decline the Applicant’s insurance claim (‘the Review Decision’). The Review Decision was notified to the Applicant by correspondence sent on 18 December 2023.[1]
  6. [6]
    By the Review Application, the Applicant applies to review the Review Decision.

The merits of the EOT Application

  1. [7]
    By operation of s 33(3) and s 33(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), the Applicant was required to file the Review Application within 28 days after the day the Applicant was notified of the Review Decision. The Review Application was not filed within that period and the Applicant requires an extension of time from the Tribunal in order to pursue that application.
  2. [8]
    The Tribunal has power to extend time for the filing of an application to review under s 61 of the QCAT Act. That section provides:
  1. The tribunal may, by order—
  1. extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  1. extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
  1. waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
  1. An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  1. The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement 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.
  1. The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  1. The tribunal’s power to act under subsection (1) is exercisable only by—
  1. the tribunal as constituted for the proceeding; or
  1. a legally qualified member, an adjudicator or the principal registrar.
  1. [9]
    In Harper Property Builders Pty Ltd v Queensland Building and Construction Commission (‘Harper’),[2] the Appeal Tribunal said the following in relation to s 61:
    1. the discretion to extend time is unfettered (except to the extent that s 61 precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages);[3]
    2. the following matters have been recognised as particularly relevant considerations in the exercise of discretion:
      1. the length of the delay;
      2. the adequacy of explanation for the delay;[4]
      3. the merits of the proceeding sought to be litigated;
      4. prejudice to others; and
      5. the interests of justice (sometimes expressed as ‘general considerations of fairness’).[5]
  2. [10]
    I will address each of these factors.

Length of the delay

  1. [11]
    The QBCC submits,[6] and I accept, that the Review Application was required to be filed by 15 January 2024.
  2. [12]
    The QBCC submits that the period of delay until the filing of the Review Application was four months and 19 days (or 141 days).[7] By my calculation, the period between 15 January 2024 and 7 May 2024 is three months and 22 days (or 113 days). I infer that the QBCC has calculated the period from 18 December 2023. If so, I consider that this is not the correct period for calculating delay. The Applicant was entitled to file the Review Application any time up until 15 January 2024. In my view, the relevant period of delay was from 16 January 2024 to and including 7 May 2024.
  3. [13]
    The QBCC referred to various cases in respect of delay, including two cases in which a delay of six weeks was characterised as ‘considerable delay’.[8] On the other hand, the Appeal Tribunal in Harper referred to a delay of six weeks and one day as ‘fairly short’.
  4. [14]
    The length of the period of delay is a relevant factor to be taken into account. However, I consider that this factor intersects with the other relevant considerations including the adequacy of the explanation for the delay and any demonstrable prejudice attributable to the delay.
  5. [15]
    In the present case, I consider that the delay of approximately three months and three weeks is a factor which tends to tell against the exercise of the discretion in favour of the Applicant, but that it must be weighed with the other factors.

The adequacy of explanation for the delay

  1. [16]
    In support of the EOT Application, the Applicant has stated:

I respectfully request an extension primarily on compassionate grounds. Just before I was going to apply to QCAT, I received some very distressing news about my mothers [sic] health, in that she was diagnosed with end stage heart failure and would likely die at any time from that moment, to within the next weeks or months. I did not cope with this news well at all and was not able to function well.

Further to this, I do not have computer and printing facilities at home and as a full-time parent of a two-year-old with no Day Care at the time (whilst distracted and in emotional distress), accessing public facilities was a barrier to being able to complete, print and sign the application paperwork.

A task such as compiling a comprehensive QCAT application fell outside of my abilities at that time. I had limited family support due to the fact that my entire family was also in distress due to the deterioration of Mum’s health to the point that she was on oxygen around the clock and receiving Palliative Care. Further to this, I have an impairment for which I am receiving the Disability Support Pension from the Department of Human Services, so the complexity of going through the QCAT process was already extremely challenging for me.

  1. [17]
    The state of the Applicant’s mother’s health is corroborated by a medical report provided by the Applicant. The report, from Metro South Health (Mobile Emergency Assessment), is dated 14 January 2024 and includes the following statements:
    1. ‘All discussed with family – explained the fine balance of trying to support [Applicant’s mother’s] fragile Kidney disease, worsening heart failure and the symptoms that are evident.’
    2. ‘We discussed the next stages of [Applicant’s mother’s] life, the benefits of considering symptom control now on being mindful of her statement of choice, which aligns with her families [sic] wishes.’
    3. ‘All aware of the likely end of [Applicant’s mother’s] life within the next few weeks/months.’
    4. ‘Referral to Palliative Care team completed.’
  2. [18]
    The QBCC states that it takes a ‘neutral position’ in respect of the explanation for delay but submits that the reasoning provided by the Applicant is ‘vague in nature’ and submits that:[9]
    1. it was not clear that the reference to receiving news about the Applicant’s mother was within the 28 day review timeframe or not;
    2. the proceedings before the Tribunal are designed to be informal in nature and that the Applicant outlines that she previous engaged a solicitor to assist her with the previous process.
  3. [19]
    With respect to the QBCC’s submissions:
    1. even assuming that the issue with the Applicant’s mother’s health was not a material issue in relation to the preparation of the Review Application prior to the date of the medical assessment, that date is, by my calculation, the day prior to the date on which the Review Application was required to be filed;
    2. whilst I accept that the Tribunal’s process for filing applications is designed to assist self-represented parties, I do not accept that the content of the grounds for seeking to review the QBCC’s decision to decline insurance is a straightforward matter;
    3. there is no evidence that the Applicant had received any legal assistance in relation to the Review Application (and the fact that the Applicant had previously received assistance in relation to the application for internal review suggests that the Applicant did have some need for such assistance).
  4. [20]
    On the whole of the material, I am satisfied that the Applicant has provided an adequate explanation for the failure to file the Review Application within time. Although it would have been of assistance for the Applicant to provide a timeline in relation to the deterioration of her mother’s health subsequent to 14 January 2024, I am satisfied that the delay until 7 May 2024 has been satisfactorily explained, having regard to the medical report.

The merits of the proceeding

  1. [21]
    As noted above, the Review Decision was taken to be the original decision by the elapse of time.
  2. [22]
    Neither the Applicant nor the QBCC has filed material containing the reasons for the original decision. However, the Applicant has made reference to the substance of the reason for the declining of the claim for insurance, and has also addressed the merits of the basis for reviewing the decision.
  3. [23]
    In support of the extension of time, the Applicant has filed material which was provided to the QBCC in relation to the application for an internal review. The Applicant states, amongst other matters:

In the Decision, the relevant issue for consideration is whether I ‘took possession’ of the Works. QBCC determined that I had taken possession and consequently, that each of the June 2023 and August 2023 termination were [sic] invalid because I had allegedly taken possession of the Works (the Site) prior to the June 2023 purported termination and prior to the August 2023 purported termination.

I submit that the Decision is wrong factually, and at law … I submit that I did not take possession and was not deemed to have taken possession of the Site.

The material available to QBCC does not show that I had taken possession was deemed to have taken possession, in April 2023.

By way of background, it is important to realise the following:

  1. –
    At all times my family (which include small children) and I resided on the same land of the Site, in another structure;
  1. –
    The relationship between the builder and our family had deteriorated to such an extent that Peace and Good Behaviour concerns were present, separate to this matter. My requests to the builder were made in light of these concerns.

Considering the above, it seems that the QBCC decision maker has inferred to assume certain matters to be a factor, which were wrong.

…

From the date of the Contract, [the builder] had granted access to me as Owner to inspect the Works/the Site from time to time. Further, I sought access to the Works/the Site for the purpose of doing a final inspection. That access was refused by [the builder].

The material provided to QBCC by the parties relevantly shows:

  1. –
    I was restricted access to the Site from 11 April 2023 (to do a final inspection);
  2. –
    [the builder] alleges that I had access to the Site at all times;
  3. –
    I refute this allegation;
  4. –
    [the builder] alleges that I took the keys without authorisation;
  5. –
    [the builder] alleges that I denied [the builder] access to the Site;
  6. –
    I refute these allegations;
  7. –
    Instead, I say that [the builder] left the keys behind on Site – [the builder] left the keys under the landing and authorised me to use the keys when I would go on to Site to paint and inspect. I always returned the keys under the landing;
  8. –
    I acknowledge that I asked [the builder] to refrain from trespassing from 5 April 2023, which is in line with the Peace and Good behaviour concerns, but this in no manner means that I took possession of the Site;
  9. –
    In addition, [the builder] blocked access doors to the Site and placed additional locks on the Site;
  10. –
    In addition, [the builder] continued to work on site.

Further, I say:

  1. –
    I did not change locks until after the August 2023 termination;
  2. –
    I did not take the keys to the Site, (which were left behind by [the builder] on site under the landing);
  3. –
    I started occupying the building subject to this matter on or about 8 October 2023 (after the August 2023 termination);
  4. –
    The builder only handed me the keys on 7 November 2023;
  5. –
    The builder only removed his gates, chains and padlocks on the property on 7 November 2023;
  6. –
    The builder sent me photos from inside the house following the date I allegedly took possession;
  7. –
    I was unable to access the property following the date I allegedly took possession.

…

  1. [24]
    The Applicant has provided a number of text messages (some with photos) which I understand were between herself and the builder. I note that one of them is dated 27 April (I infer, 2023). There is a photograph of some keys and a message ‘Your keys. Once we receive the final payment’.
  2. [25]
    The QBCC notes that the Review Application concerns a question of whether the contract was validly terminated, and that the QBCC ‘acknowledges’ that the strength of the Applicant’s case will turn on the evidence led in the proceeding.[10]
  3. [26]
    On applications such as the present, it is not the Tribunal’s role to make an assessment of the ultimate merits of an application to review a decision. However, on the basis of the Applicant’s material, I am satisfied that the Applicant has a reasonably arguable case that the Applicant did not take possession of the Works (nor was she deemed to have taken possession of the Works), with the consequence that the factual premise underlying the original decision and, consequently, the Review Decision was incorrect. I consider that this factor tends to favour the grant of the EOT Application.

Prejudice to others

  1. [27]
    In its submissions, the QBCC ‘acknowledges’ that the builder may be prejudiced should the matter proceed in that it may be necessary to either join the builder to the proceeding, or obtain a witness statement from the builder, so that factual matters concerning the termination can be ventilated before the Tribunal. It is also noted that at this time, the question of whether an affected party ought to be joined to the proceeding has not been ventilated.
  2. [28]
    The QBCC’s submissions do not address any particular prejudice that the builder may suffer as a result of the Applicant’s delay in filing the Review Application. Whether the builder should be joined to the proceeding and whether a witness statement should be taken from the builder are matters that would have arisen in any event had the Review Application been filed within time.
  3. [29]
    I also find that an extension of time would not cause prejudice or detriment that could not be remedied by an appropriate order for costs or damages.

The interests of justice

  1. [30]
    The QBCC:
    1. submits that the above factors should be considered in combination to determine whether it is in the interests of justice to grant an extension of time;
    2. refers to the observations of Member Traves (as Senior Member Traves then was) in Jensen v Queensland Building and Construction Commission:[11]

It is a fundamental aspect of the rule of law that all those who come before the courts are treated equally. The time limit for applying for review, applies equally to all applicants. In my view, the legislative intent underlying the QCAT Act and the QBCC Act is that review proceedings are to be commenced promptly. There is a strong public interest in complying with time limits, particularly in the context of administrative review when the review of decisions by public authorities often occurs at stages of a broader process, here the licensing of builders.

  1. [31]
    I accept the above principle stated by Member Traves.
  2. [32]
    I also observe that:
    1. s 61 of the QCAT Act recognises that, in appropriate cases, a party may be relieved from a failure to comply with a relevant time limit, and this extends to administrative review cases under the QBCC Act;
    2. the objects of the QCAT Act include:
      1. the Tribunal dealing with matters in a way that is not only accessible, economical, informal, and quick but is also fair and just;
      2. enhancing the openness and accountability of public administration;[12]
    3. whilst it is not critical to my conclusion in this matter, the QBCC’s reliance on the importance of the strong public interest in complying with time limits is less persuasive in the present case given that the Applicant applied for an internal review of the original decision, and the QBCC did not make a decision within the ‘required period’, with the result that the application was not decided on the merits (but was taken to be the same as the original decision, by operation of the legislation).

Conclusion

  1. [33]
    Having regard to the material and submissions before the Tribunal, despite a delay of approximately three months and three weeks in the filing of the Review Application, I am satisfied, on balance, that the Tribunal’s discretion should be exercised in favour of granting the extension of time sought, in light of the fact that the Applicant has provided a satisfactory explanation for the delay and that the Applicant has a reasonably arguable case, in circumstances where there is no demonstrated prejudice to either the QBCC or the builder (or any other third party) if the extension is granted.

Order

  1. [34]
    For the above reasons, the time for filing the Application to review a decision is extended to 7 May 2024.

Footnotes

[1]Review Application, Part B.

[2][2018] QCATA 70.

[3]At [26].

[4]The Appeal Tribunal did not state that this factor was a pre-condition to the exercise of the Tribunal’s discretion: cf QBCC’s submissions, [15]-[37].

[5]At [26].

[6]QBCC’s submissions, [24].

[7]QBCC’s submissions, [25].

[8]Pavlovic v Queensland Building and Construction Commission [2020] QCAT 128, [13]; Anderson-Barr v Queensland Building and Construction Commission [2018] QCAT 438, [12].

[9]QBCC’s submissions, [17]-[18].

[10]QBCC’s submissions, [19].

[11][2017] QCAT 232. The QBCC also referred to Cardillo v Queensland Building Services Authority [2011] QCAT 574, [33].

[12]QCAT Act, s 3.

Close

Editorial Notes

  • Published Case Name:

    Francis v Queensland Building and Construction Commission

  • Shortened Case Name:

    Francis v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 360

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    26 Aug 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
Anderson-Barr v Queensland Building and Construction Commission [2018] QCAT 438
2 citations
Jump To
Cite 1 - [2018] QCAT 438
Cite 2 - [2018] QCAT 438
Cardillo v Queensland Building Services Authority [2011] QCAT 574
2 citations
Jump To
Cite 1 - [2011] QCAT 574
Cite 2 - [2011] QCAT 574
Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70
2 citations
Jump To
Cite 1 - [2018] QCATA 70
Cite 2 - [2018] QCATA 70
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
2 citations
Jump To
Cite 1 - [2017] QCAT 232
Cite 2 - [2017] QCAT 232
Pavlovic v Queensland Building and Construction Commission [2020] QCAT 128
2 citations
Jump To
Cite 1 - [2020] QCAT 128
Cite 2 - [2020] QCAT 128

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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