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Brennan v Queensland Building and Construction Commission[2024] QCAT 37

Brennan v Queensland Building and Construction Commission[2024] QCAT 37

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Brennan v Queensland Building and Construction Commission [2024] QCAT 37

PARTIES:

wayne brennan

(applicant)

v

Queensland building and constructin commission

(respondent)

APPLICATION NO/S:

GAR341-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. The application to review a decision filed on 23 August 2022 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – LIMITATION ON COMMENCEMENT OF REVIEW APPLICATON – STRIKE OUT – where the respondent made a decision to issue a scope of works to respondent – where any review of the decision in respect of a scope of works must be filed within 28 days of receipt of the decision – where the applicant emailed the application to review a decision to the Tribunal on the 28th day – where the Tribunal processed the decision and date stamped and applied the Tribunal’s seal on the the application to review the day after it was received by the Tribunal – whether the date of filing the application was the date the application was stamped and the seal applied – whether the application was filed within the 28 day limitation.

Acts Interpretation Act 1954 (Qld), s 38

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 33, s 36, s 61, s 63, s 225.

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 24, r 31

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

Statutory Instruments Act 1992 (Qld), s 7

Bowie v Gala [2023] QCATA 129.

Queensland Building and Construction Commission v Cocker [2018] QCAT 194

Vignes v Clarke (1990) 2 Qd R 593

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 applicant represents Brennan Clan Pty Ltd, a construction company (‘the builder’), who undertook the construction of a residential dwelling for the owners at Jubilee Heights in north Queensland. After moving into the property, the owners noticed some defects with the building works and made a complaint to the respondent (‘the Commission’).
  2. [2]
    After inspecting the defects the subject of the complaint, the Commission issued a direction to rectify to the builder. Some rectification work was carried out by the builder, but not to the satisfaction of the Commission. The Commission then took over and what followed was the issuing of a scope of works on 8 February 2022 notifying the builder that the cost of rectification would be $21,246,83. There was email correspondence between the builder and the Commission about this and then on 25 July 2022 the Commission issued a variation to the cost of the scope of works increasing it by $14,885.34.[1] The builder then sought to review the decision about scope of works by filing an application in the Tribunal. The application for review was emailed to the Tribunal at 9:16 pm on 22 August 2022. The Tribunal accepted the application the following day and date stamped it 23 August 2022.
  3. [3]
    On 22 March 2023, the Commission filed an application to strike out the review application because it was out of time. It is that application that is the subject of these reasons. Therefore, the issue to be decided in this application is straightforward. That is, whether the builder filed an application to review the Commission’s decision about a scope of works (‘the decision’) within the 28-day limitation under s 86F(1)(c) of the Queensland Building and Construction Act 1991 (Qld) (‘QBCC Act’). Although a decision about a scope of works is reviewable under s 86(1), it ceases to be a reviewable decision if:

…a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work if 28 days have elapsed since the decision was served on the building contractor and the contractor has not, within that time, applied to the tribunal for a review of the decision.

  1. [4]
    Because of this limitation contained in the enabling legislation, the Tribunal has no discretion to extend the time for filing an application for review about a scope of works under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act’). It is now well established that the time limitation in s 86F(1)(c) of the QBCC Act is substantive and not procedural.[2] Therefore, the builder must establish that the application for review of the scope of works decision was filed within 28 days of its receiving the decision. If it cannot then there is no utility in the continuation of this review application.
  2. [5]
    When first considering this application the parties had not addressed the issue of the filing date other than referring to the date stamped on the review application and the box on the top left hand side which records a ‘date’. I called for further submissions because the recorded date of the application being received in the registry of 23 August 2022 was different to the actual date it was emailed.
  3. [6]
    Both parties filed further submission in response to address this issue. In short, the builder relies on s 24 of the Electronic Transactions (Queensland) Act 2001 (Qld) to established the review was filed on 22 August 2022, that is because as between the parties all communications were conducted by email.[3] The Commission relies on the actual date recorded on the review application as being the day when the Tribunal was satisfied the requirements of s 33 of the QCAT Act were met.
  4. [7]
    It is uncontested on the material filed that:
    1. the Commission sent the decision to the builder by email on 25 July 2022.
    2. the builder (via Mr Brennan) acknowledged receipt of the decision on 25 July 2022 by return email.
    3. time commenced to run on 26 July 2022.[4]
    4. the last day for filing the application to review was  22 August 2022.
    5. the application to review the decision was emailed to the Tribunal at 9:16 pm on 22 August 2022.
    6. the following day, during normal registry processes, the application was stamped “Received 23 August 2022”.
  5. [8]
    Whether the email sent to the Tribunal at 9:16 pm on 22 August 2022 satisfies the requirement of “filing” is the determinative factor in this application. By way of observation it could not be reasonably expected by Mr Brennan that the email would be actioned that evening, but that is not to the point. Also, it would not reasonably have been expected that Mr Brennan would have been aware of Practice Direction 1 of 2016 which deals with filing certain documents electronically.
  6. [9]
    Starting with the Practice Direction it relevantly provides that:

Forms submitted using the Online Form Facility or by email are, on submission, regarded as received but not filed by the Tribunal. The review page available when using Online Form Facility is not confirmation that the form and any additional documents have been filed.

……………

There may be a time delay between submission of a form using the Online Form Facility or by email and the time the document is filed.

  1. [10]
    Under s 225 of the QCAT Act the President may make practice directions about the practices and procedures of the Tribunal. They are to assist in the efficient functioning  of the Tribunal to achieve the objects of the QCAT Act. They are not subordinate legislation and not a statutory instrument.[5] They do no more than instruct parties about certain processes in the Tribunal. Also, by reference to the Online Form Facility on the QCAT website, the forms do not include an application to review a decision of a statutory authority. Therefore, the Practice Direction in relation to Online Form Facility does not apply to the subject application. However, it does apply because it also refers to email, which was the case here. To determine if a document has been filed one has to turn to the QCAT Act and Rules.
  2. [11]
    The provisions about filing applications in the Tribunal are set out in Part 2 Division 3 of the QCAT Act. Under s 33, to start a proceeding an application must be in the prescribed form, state the reasons for the application and be filed in the registry. Applications can be filed in a variety of ways provided for in QCAT Rule 24, that is in person, by post or electronically in a way prescribed by practice direction. Importantly, the section provides specifically that “electronically includes by email”. The reference to “by email” must not only be a reference to filing documents that are included in the Online Form Facility in the Practice Direction, but also other forms such as the subject review application. That is because the documents filed under the eLodgments process are not emailed. In any event, I am not aware of originating applications being rejected by the registry if filed by email. This application is an example of that because it was accepted by the registry and treated as being filed.[6]
  3. [12]
    Under s 36 of the QCAT Act a proceeding starts when the principal registrar accepts an application. The section makes no reference to acceptance constituting the filing date.
  4. [13]
    Turning then to the QCAT Rules, rule 31(1) simply provides that “a document is filed when the principal registrar records the document and stamps the tribunal’s seal on it”. Rule 31(2) provides that “after filing the document, the principal registrar must stamp the tribunal’s seal on each copy…”. Again there is no reference in the Rules  stipulating the date to be recorded on the application. In practice the date stamp identifies the date when the document was received into the registry. Again for practical purposes in the conduct of proceedings, the date stamp (received date) is generally regarded as the filing date, which is the same date in the ‘for office use only” box. The stamp looks like this on the subject application, and is the same on all documents filed in the Tribunal.

RECEIVED

23 AUG 2022

QCAT BRISBANE

  1. [14]
    Presumably, for the purposes of rule 31(1) the recording of the document is the application of the stamp with the received date. Also presumably, the QCAT seal is then affixed to the front page of the application at the same time. The seal is not dated. The point here is that, if the correct received date is recorded on the document, and at the same time the seal is applied, even if it is the next day, the application could be said to be filed.  The box on the left of the front page “for office use only” also records the case number, date, registry and fee paid.
  2. [15]
    The first thing to note about the above box is that the ‘received” date is incorrect. The application was in fact received into the Registry on 22 August 2022. That is not controversial. Obviously, it was not processed until the following day when the Registry opened for business. Once accepted by the principal registrar (in practice a delegate) the actual and correct ‘received’ date should have been recorded on the application. Whether that date is then recorded in the ‘office use only’ box is for the principal registrar to decide, but it usually is the same.
  3. [16]
    The Tribunal considered a similar situation in Bowie v Gela[7] which involved an application under s 293(1) and (2) of the Residential Tenancies and Rooming Accommodation Act (Qld) (’RTRA’), for termination order. The section provided that any such application must be made within two weeks of the handover date. The application was made two days after the expiration of the 2 week period. Although actually received by the QCAT Registry on 7 February 2022, the cut-off date, the document was date stamped 9 February 2022.
  4. [17]
    In the primary application, the learned adjudicator who heard the matter accepted the lessor was out of time to make the application, but extended the time under s 61 of the QCAT Act. Although the appeal was mainly concerned with the application of s 61, the learned member in the appeal discussed at length the procedure for ‘filing’ an application in the Tribunal. The relevant form in this application under the RTRA was a document to which the Practice Direction applied. In particular the reference to time delay from receipt to filing.
  5. [18]
    In his reasons the learned member made some references to useful authorities about the filing of originating proceedings in the court’s registry. Those observations are applicable here:

[51]  In Gower v Woodman Sales Pty Ltd the plaintiff’s solicitors presented a writ for issue in a regional registry. The filing fee paid was $23, but the fee required was $26. The writ and cheque was accepted, the file copy of the writ was endorsed “Date filed 20.11.78” and the writ entered in the causes book. The matter of a shortfall in the filing fee was not raised with the solicitors by registry. The sealing and witnessing of the writ was left to be attended to the following day.

[52]  The next day the registry received a cheque for $3 and the file copy of the writ endorsed “date filed 21.11.78”, which made two endorsements on it. The original writ was signed by the registrar, sealed, dated 21 November 1978 and collected by the solicitors.

[53]  Macrossan J (in the majority) found that fault lay with the registry in delaying issue and not telling the solicitor that the fee originally tendered was insufficient. The rules of court required that no document requiring payment of a filing fee should be received or sealed or filed until the filing fee was paid.

[54]  The learned Judge said that the authorities indicate that fault responsible for delay in issue of a writ is a relevant matter. His Honour referred to a number of authorities including Evans v Jones (1862) 2 B & S 45; 121 ER 99 and E Ryan & Sons Ltd v Rounsevell (1910) 10 CLR 176 where it was made clear that if it was the fault of the courts’ own officers it was appropriate to order alteration to be made nunc pro tunc (meaning now for then, correcting the date retrospectively).

[55]  Macrossan J found there was power in the then Rules of Court to order amendment, and whilst saying it was unnecessary given the power to amend in the rules, recounted that the Judge below had concluded there was a discretion to order amendment. 

  1. [19]
    He also referred to Vignes v Clarke[8] in relation to rejecting originating proceedings due to a local practice about information that should be on the court document. Dowset J in particular said that he was in agreement with the proposition that “Registry staff of any court should not refuse to accept originating proceedings”. The subject matter of that case was that the date the originating proceeding was filed, was the last day before the limitation to commence an action for damages for personal injury expired. Had the court not adopted this approach the action would have been statute barred.
  2. [20]
    There is no suggestion here that the registry sought to reject the review application, but the importance of noting the date of receipt is relevant to ensure the claim is not statute barred is relevant.
  3. [21]
    In Bowie, the appeal was allowed because there was no power to extend time under s 61 of the QCAT Act by the learned adjudicator at first instance. It was also held that he filing date was ‘received date’ being the same date as recorded in the ‘office use only’ box.
  4. [22]
    In my view the date of the receipt of the application in the Registry can be critical, particularly when there is a strict time limitation applicable to the application. The QCAT Rules makes provision for filing applications and referrals by email. If there is a contest that electronically mean eLodgments only, that is inconsistent with Tribunal practices. However, an applicant should not have to anticipate, and allow for, sufficient time for when it is likely the application will come to the attention of the registrar (or delegate) for approval and sealing.
  5. [23]
    Despite the fact that the application was sent after close of business, 9:16pm, this should not be a disqualifying factor. The QCAT registry closes at 4:30pm. If a party emailed a review application with attachments (which frequently occurs) between 4:00 – 4:30pm, one would reasonably expect that the application would not be processed until the following day. If this were to occur and it was the last day of the limitation, would the applicant be out of time? That proposition is not sustainable and inconsistent with the cases cited above.
  6. [24]
    There is of course a well-known process in the courts[9] that if a party is about to fall foul of a limitation and lose the right to commence a proceeding, the court registry can be opened after hours to file an originating proceeding. No such facility is available at QCAT. Also, I suspect because of the electronic correspondence with the Commission in Brisbane, the builder assumed this proceeding had to be filed in Brisbane. The builder is located in Cairns. I am unsure of the process if an application is filed over the counter at the last minute, before close of business and whether it would be processed the following day. Despite all of this, the Practice Direction allows for email filing and it is a practice adopted by the registry. It cannot not now gainsay that practice.
  7. [25]
    The QCAT Act or Rules do not specify what date is to be regarded as the filing date. It is taken for granted that the filing date is that date which is on the front page of the document, being the ‘received’ date. In other words, the date the document is processed by the registry staff as occurred here and in Bowie. However, if the ‘received’ date is to be the relevant date for the purposes of identifying ‘the filing date’, it should record the date the document was actually received into the tribunal, by email or over the counter, and not the date it was processed, even if the acceptance by the Registrar is at a later date when the seal is applied. It seems to me that there is no impediment to actually recording the actual date the document is received.
  8. [26]
    There is one other observation to make. Although this application is not about the the 28 day limitation in s 86F(1)(c), the general principles in construing limitation clauses are relevant to the construction of the sections in the QCAT Act and the Rules in relation to the filing date. That is because their construction will have the same consequences as the limitation itself. Therefore, they should be strictly construed because to adopt a broad interpretation of fixing the filing date to the date when the registry gets around to putting a the stamp on the application,[10] has the potential to deny an applicant’s rights of review.[11]
  9. [27]
    The Commission submits that as the review application is not a document that can be filed under the eLodgment procedures. The submissions quote to Rule 24[12] but not the definition of ‘electronically’ which includes by email. The eLodgment documents are not sent by email. The Commission relies on Bowie as being similar to this application which it is, but as I said the main focus of Bowie was the application of s 61 of the QCAT Act although there was discussion about the filing date.
  10. [28]
    The submission goes on to put the position that an extension of time cannot be granted. I agree. However the Commission also puts the position that as the review application was filed outside business hours the filing date should be the next day. There is nothing in the QCAT Act or Rules[13] that I can see which stipulates that time is to be calculated by reference to usual business hours. The time for filing the application expired at midnight on 22 August 2022. The date stamp specifically requires the principal registrar (or the delegate) to record the date it is received, not the date it is processed.
  11. [29]
    If this approach is correct then the Tribunal, if constituted by a legally qualified member,[14] has the power to amend the application under section 64 of the QCAT Act.[15] It provides:
  1. (1)
    The tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended.
  1. (2)
    The tribunal may make the order on the application of the party who filed the document or on its own initiative.
  1. [30]
    A relevant document means an application or referral. There is presently a proceeding on foot.
  2. [31]
    In discharging its functions, the Tribunal, “must act fairly and according to the substantial merits of the case”.[16] It must have regard to the objects of the QCAT Act to ensure that matters are dealt with in a way that is “accessible, fair, just, economical, informal and quick”.[17]
  3. [32]
    Here the builder, it is conceded, left it to the last minute as it were to file the review application. However, the Rules provided for email filing, or it was an accepted registry practice as demonstrated by the acceptance of this very application,  and the builder had no control over the processing of the application after it was received at the Tribunal. It would, in my view, be inconsistent with the objects of the Act if the builder was statute barred from bringing the review application in the absence of any precise definition of filing date in the Act or Rules, and it is left to the registry processes to decide what received date should be stamped on the application. I fully appreciate that the normal process would be to simply date the application when it was looked at by registry staff, but where the received date is critical as purportedly  identifying the filing date, the actual received date should be recorded on the application. This is consistent with what was said in Gower v Woodman Sales Pty Ltd [1988] QSC 80 and Vignes, referred to above.
  4. [33]
    However to adopt such a course of amending the application under s 64 would be inconsistent with the Appeal Tribunal’s reasons in Bowie about determining the filing date on the application. Although the received date is relevant, the Appeal Tribunal relied on the date recorded in the ‘office use only’ box as the filing date being the date when the Registrar accepted the application and applied the seal, even though the received date should have been recorded as 7 February 2022 (as opposed to 9 February). Here, under s 31(1), the Registrar stamped the seal on the application on 23 August 2022, which date is recorded in the ‘office use only’ box.
  5. [34]
    The absence of the words “filing date” on the application is problematic. It leaves open the issues that arose in Bowie, and in this application. This is particularly so when a limitation is involved as demonstrated above. The registry process creates confusion when it does not distinguish between the actual received date and the date the application is recorded and the seal applied a required by Rule 31, filed. As I have said, in this case, the application having been in fact received on 22 August 2022, there is no reason why the document could not be recorded as having been filed that day once reviewed by the Registrar.
  6. [35]
    My preference is to exercise the power conferred in s 64 of the QCAT Act and amend the filing date, but higher authority prevents me from doing so.
  7. [36]
    The consequence then is that the application to review a decision filed on 23 August 2022 is dismissed.

Footnotes

[1]The effect of this was that the Commission, through the Home Warranty Scheme, would engage a contractor to carry out the work and seek to recover the cost from the builder under the Queensland Building and Construction Commission Act 1991 (Qld).

[2]Queensland Building and Construction Commission v Crocker [2018] QCAT 194 at [41]; Bowie v Gela [2023] QCATA 129 ('Bowie’).

[3]The Commission also relies on the email exchanges to satisfy the requirement of service of the Scope of Works.

[4]Acts Interpretation Act 1954 (Qld), s 38.

[5]Statutory Instruments Act 1992 (Qld), s 7.

[6]  The lodgement information on the QCAT website states:

[email protected]

All applications and forms must be signed, scanned and then emailed.

[7][2023] QCATA 129.

[8](1990) 2 Qd R 593 (‘Vignes’).

[9]At least to the legal profession: The Supreme court website informs the public that the registry can be opened after hours in urgent situations.

[10]Of which Bowie is a  good example.

[11]Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471; Law of Limitation; Dal Pont 2nd ed page 21

[12]Commission’s submissions filed by email 14 November 2022 at [34] and [35].

[13]Or the Acts Interpretation Act.

[14]Which I am.

[15]As was suggested in Gower above at [16].

[16]QCAT Act, s 28(2).

[17]Ibid, s 3(b).

Close

Editorial Notes

  • Published Case Name:

    Brennan v Queensland Building and Construction Commission

  • Shortened Case Name:

    Brennan v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 37

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    19 Jan 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
Australian National Airlines Commission v Newman (1987) 162 CLR 466
1 citation
Jump To
Cite 1 - (1987) 162 CLR 466
Bowie v Gela [2023] QCATA 129
3 citations
Jump To
Cite 1 - [2023] QCATA 129
Cite 2 - [2023] QCATA 129
Cite 3 - [2023] QCATA 129
E Ryan & Sons Ltd v Rounsevell (1910) 10 CLR 176
1 citation
Jump To
Cite 1 - (1910) 10 CLR 176
Evans v Jones (1862) 2 B & S 45
1 citation
Jump To
Cite 1 - (1862) 2 B & S 45
Gower v Woodman Sales Pty Ltd [1988] QSC 80
1 citation
Jump To
Cite 1 - [1988] QSC 80
Queensland College of Teachers v DGM [2018] QCAT 194
2 citations
Jump To
Cite 1 - [2018] QCAT 194
Cite 2 - [2018] QCAT 194
Vignes v Clarke[1990] 2 Qd R 593; [1990] QSCFC 35
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 593
Cite 2 - [1990] 2 Qd R 593

Cases Citing

Case NameFull CitationFrequency
Beyond Reserve Pty Ltd v Kagawa [2024] QCATA 983 citations
1

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