Jarvis v Queensland Building and Construction Commission
[2025] QCAT 53
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- Unreported Judgment
- Jarvis v Queensland Building and Construction Commission[2025] QCAT 53
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Jarvis v Queensland Building and Construction Commission[2025] QCAT 53
Jarvis v Queensland Building and Construction Commission[2025] QCAT 53
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jarvis v Queensland Building and Construction Commission [2025] QCAT 53 |
PARTIES: | chris andrew jarvis (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR209-24 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 3 February 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant seeks review of a scope of works decision – where application filed an application in the tribunal more than three years from notice of decision – where applicant did not comply with tribunal directions – where applicant did not address strength of his case on review or why interests of justice favoured extending time – case for extension of time not made out Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 Queensland Building and Construction Commission Act 1991 (Qld), s 86F JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 444 Jenkins v Queensland Building and Construction Commission [2022] QCAT 215 |
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]In 2020, the applicant was engaged to renovate bathrooms and the surrounding areas in a home. The homeowners were not happy with the completed work and complained to the Queensland Building and Construction Commission (‘QBCC’).
- [2]On 15 December 2020, the QBCC issued a Direction to Rectify which was largely confirmed on internal review on 12 February 2021. Mr Jarvis did not comply with the Direction to Rectify, and the rectification work was ultimately completed under the Home Warranty Scheme.
- [3]On 8 April 2021, the QBCC made a scope of works decision (‘the original scope of works decision’).
- [4]On 5 May 2021, the QBCC issued another scope of works decision (‘the amended scope of works decision’).
- [5]Mr Jarvis requested internal reviews of both the original and amended scope of works decisions. Both were upheld on internal review.
- [6]Mr Jarvis has two applications currently before the Tribunal.
- File number GAR415-21: on 28 June 2021, Mr Jarvis sought review of the internal review decision that related to the original scope of works decision. Directions were issued over time, including, on 8 February 2024, a direction directing Mr Jarvis, if he wished to have the amended scope of works decision reviewed, to file a separate review application and an application to extend time to file the application to review by 23 February 2024.
- File number GAR209-24 (this file): on 26 March 2024 Mr Jarvis filed this review application, seeking a review of the amended scope of works decision, and an application to extend time for filing the application to review. There was some confusion with the filing. Mr Jarvis filed a review application on 22 February 2024 which was not accepted by registry and was returned to him on 29 February 2024. He filed the completed application with all requirements met on 26 March 2024. An application for extension of time was originally filed on 26 February 2024. That application for extension of time was attached to GAR415-21, and it was not until 26 March 2024 that a copy was filed which related to GAR209-24.
- [7]Additionally, file number GAR194-21 has been finalised: Mr Jarvis sought review of the Direction to Rectify decision, and a decision was made on that application on 9 December 2022. On 24 April 2023, the Appeal Tribunal refused to extend time for Mr Jarvis to lodge an appeal.
- [8]I must determine Mr Jarvis’s application for an extension of time to lodge his application to review the amended scope of works decision. The QBCC opposes the granting of an extension of time.
SUBMISSIONS BY THE QBCC
- [9]The QBCC submits that an extension of time should not be granted because:
- Their solicitors wrote to Mr Jarvis on 8 June 2022 indicating that they considered that it was more appropriate that the amended scope of works decision was subject to review rather than the original scope of works decision, which he had applied to have reviewed (GAR415-21), and putting him on notice that they reserved the right to oppose a review application relating to the amended scope of works decision being filed out of time.
- Mr Jarvis has not provided a satisfactory reason for his delay in filing the application, or any reason at all, in the extension of time application.
- The length of delay is inordinate.
- Mr Jarvis has failed to establish any merit in the review application.
- It is not in the interests of justice to grant the extension of time, particularly where:
- (i)Mr Jarvis has repeatedly failed to comply with directions issued by the tribunal (including his failure to file the review application by 23 February 2024, as directed);
- (ii)Mr Jarvis has wasted the time of the QBCC and the tribunal by reviewing the original QBCC decision when it had been superseded;
- (iii)Mr Jarvis has known since at least 8 June 2022 that he was reviewing the wrong decision but waited until 26 March 2024 to file a review application for the operative decision (the amended scope of works decision).
- (i)
- It is a precondition to the exercise of discretion in Mr Jarvis’s favour that he provide an acceptable explanation for the delay. Mr Jarvis has only provided, by way of explanation, a statement indicating that he is self-represented. That is an insufficient reason to grant the extension of time.
- The applicant has not identified, in his review application, why he thinks the decision is wrong.
- The prima facie position is that proceedings commenced outside of the statutory period will not be entertained.
- Mr Jarvis is seeking to review the amended decision made on 5 May 2021. Section 86F(1)(c) of the QBCC Act provides that a decision about the scope of works to be undertaken under the statutory insurances is not a reviewable decision 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. This provision promotes finality and certainty and prevents unreasonable delays in the review process.
- In the absence of any compelling circumstances justifying the delay, time limits must be enforced as this is necessary to protect the public interest and prevent the uncertainty that would result from allowing long-finalised decisions to be subject to review.
- [10]The QBCC submits that the application for an extension of time should be dismissed, and accordingly the review application must be dismissed.
SUBMISSIONS BY THE APPLICANT
- [11]Mr Jarvis submits that:
- He has enjoyed a successful forty-year career and been awarded over fourteen industry awards for skill, innovation, customer service and design. He has held licences in Queensland for 23 years and has had an exemplary record during that time.
- The QBCC has relentlessly pursued him in this matter, and he has been subjected to bias, injustice, and a lack of procedural fairness.
- This is his last chance to prove his innocence in a David and Goliath story.
- Losing this review would force his business into bankruptcy and have a devastating effect on his family and their livelihoods (he employs his four adult children in the business).
- He does not agree with the outcome in GAR194-21, and feels the QBCC and tribunal process was not fair to him.
- He was confused by the process with the two scope of work decisions being issued by the QBCC in April and May 2021. Because he received the internal review decision for the original QBCC decision first, that is the one he applied to the tribunal to review. He states “This is a very confusing matter, especially for an untrained legal mind such as mine.”
- Because of Covid restrictions and delays, he did not hear from the tribunal for months after he lodged his application on GAR415-21. On 23 February 2023 he applied and was granted a stay of proceedings on GAR415-21 until GAR194-21 was finalised. On 7 December 2023 at a directions hearing “it was decided that I should submit a new application for the second scope of works and not the first that I was pursuing. This is one of the reasons for the delay and out of time application.”
- QBCC have had the advantage of legal advice and guidance and resources funded by the public purse, while he has not been able to access legal advice due to his financial position.
- If he has not followed tribunal procedures, it is because he has been unable to navigate the complex world of legal jargon and he asks that he is allowed to submit his evidence and the review to proceed and be tested on its legal merits.
- This case has had a severe impact on his physical and mental health, and he has suffered a great deal of stress and anxiety over the outcome of this case.
RELEVANT MATTERS FOR CONSIDERATION BY THE TRIBUNAL
- [12]The question of whether an extension of time should be granted has been previously considered by the tribunal.
- [13]In JPD Concreting Specialists Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 444, the Tribunal considered an application to extend time, stating:
Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers a discretion on the Tribunal to extend time. There is an evidentiary onus upon the prospective respondent to raise any matter against the exercise of the discretion, but the ultimate onus remains with the Applicant.
Section 61(3) provides that the tribunal must not extend the time if it 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. …
Judge Thomas QC in Crime and Misconduct Commission v Chapman [2017] QCAT 232 outlined the following as being relevant:
- Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.
- 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).
- Prejudice to adverse parties.
- Length of the delay, noting a short delay is usually easier to excuse than a lengthy one.
- Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.
- [14]Similarly, in Jenkins v Queensland Building and Construction Commission [2022] QCAT 215, the member stated:
The Tribunal is empowered by s 61(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to extend the time fixed for starting a proceeding. The time cannot be extended if to do so would cause a detriment not able to be remedied by an appropriate order: s 61(3).
Case authorities establish that considerations relevant to the exercise of this power include the length of, and explanation for, the delay; the strength of the case the applicant wishes to bring; and overall whether it is in the interests of justice to grant the extension.
…
Ultimately, it falls to an applicant to make out a case for an extension of time. The applicant’s submissions do not provide any analysis of the potential strength of his case for review of the decision not to issue a notice of review nor, besides the reference to the delay not being of his making, why it is in the interests of justice for the extension to be granted.
…
Having regard to the discussion above, in particular the applicant’s failure to address the strength of his case if the extension were to be granted and, more broadly, to make out a case why the interests of justice favour an extension of time to apply for review; and the exclusion of engineering services from the category of building work for which a notice to rectify may issue, I am not satisfied that an extension of time should be allowed.
It follows that the application for extension of time must be refused and the application for review dismissed.
DECISION OF THE TRIBUNAL
- [15]I accept that the review process is a confusing one, and particularly so when Mr Jarvis had multiple reviews happening at the same time. I accept that some of the initial delay may be attributed to circumstances surrounding Covid restrictions, and that Mr Jarvis may have formed the view that it was prudent to wait for the outcome of GAR194-21 before concentrating on his review of the scope of work decision(s). Indeed, GAR415-21 was stayed for a period to allow the finalisation of GAR194-21.
- [16]I accept that involvement in these proceedings has been very stressful and difficult for Mr Jarvis.
- [17]Mr Jarvis has not, however made out a case for an extension of time. He has not provided submissions as to the strength of his case, or why the interests of justice favour an extension of time.
- [18]I am not satisfied that Mr Jarvis has provided a satisfactory explanation for the delay. Putting aside all of the confusion related to Covid and the multiple applications, he says that he was aware at the directions hearing conducted on 7 December 2023 that he would be required to file a separate review application (and an application for extension of time) if he wished to have the amended scope of works decision reviewed. Further, Mr Jarvis was directed by this tribunal on 8 February 2024 to file any such applications by 23 February 2024. While he attempted to lodge an application for review on 22 February 2024, the application for extension of time was not filed until 26 February 2024, albeit referencing the incorrect case number. It was not until 26 March 2024 that both applications were properly filed. He has not complied with the directions in terms of filing the applications by 23 February 2024.
- [19]The decision which Mr Jarvis seeks to have reviewed was made on 5 May 2021. He has provided an inadequate explanation as to why it has taken so long to file an application for review. I note that he was put on notice that this was an issue in 2022. I accept that extending the time for filing an application for review and allowing an applicant to seek review of a decision finalised years before the review application was lodged would cause uncertainty for the scheme, where certainty and early finalisation is the preferred outcome. I am not satisfied that these circumstances justify such an outcome.
- [20]I am not satisfied that it is in the interests of justice to extend the time for the application to be lodged.
- [21]The application for extension of time is refused, and it must follow also that the application for review is also dismissed.