The Queensland Building and Construction Commission Act 1991 (“QBCC Act”) determines which decisions made by the Queensland Building and Construction Commission (“QBCC”) are reviewable externally in the Queensland Civil and Administrative Tribunal (“QCAT”).

In turn, QCAT’s legislation requires that an application for the review of a reviewable decision must be made within 28 days of the day the applicant is notified of the decision.^[1]

Often though, a person affected by a QBCC decision may neglect to lodge a review application in time. Many do so because they do not intend to challenge the decision, but others sometimes seek to have their review application heard even though the deadline for lodging their application has lapsed.

This article by David Grant of Law Force Lawyers discusses the factors considered by QCAT when deciding whether to grant an extension of time, and provides a recent example of an all too common attempt to obtain an extension of time that was unsuccessful.

Application requesting extension of time

In most cases, if the deadline for lodging an application for review is missed, a person may apply to QCAT to exercise its discretion to extend the time allowed to lodge the application.^[2]

However, requests for extensions of time are to be granted sparingly.  In Cardillo v Queensland Building Services Authority,^[3] Member Howe observed:

“It has been said that it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. Further it has also been said that it is a precondition to the exercise of discretion in the applicant's favour that the applicant for extension show an acceptable explanation of the delay.”

Further, QCAT cannot extend time if to do so would cause prejudice or detriment to a party or potential party to a proceeding that is not able to be remedied by an appropriate order for costs or damages,^[4] and the QBCC Act itself may prohibit the granting of any extension of time.

Relevant factors considered by the Tribunal

Before exercising its discretion as to whether to grant an extension or not, QCAT must consider a number of relevant factors, which have been summarised in Crime and Misconduct Commission v Chapman & Anor as follows:^[5]

1. Whether a satisfactory explanation (or ‘good reason’) is shown to account for the delay.
2. The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
3. Whether there is prejudice to adverse parties.
4. Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one.
5. Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.

In R v Twindale,^[6] Her Honour, Margaret Wilson J also observed generally:

“[F]actors the Court will consider include the viability of the appeal, the length of the delay and the reason for it, but public interest in the finality of litigation, whether the application for extension of time is an abuse of process in that it has been made for a collateral and improper purpose and, in the unusual case where it is a live issue in a criminal appeal, any prejudice to the respondent.”

In Coppens v Water Wise Design Pty Ltd,^[7] Thomas J said that:

“Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason... to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation ...”

A recent case involving an application for extension of time

In the recent case of Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor,^[8] Member Cranwell considered the above factors in deciding an application brought by Gedoun Constructions Pty Ltd (“Applicant”) for an extension of time to file a late application for review of a QBCC decision that it had not completed works as directed by the QBCC.  The Applicant had missed the deadline and later lodged an application with QCAT requesting an extension of time 6 weeks later.

In support of the Applicant’s request, its director provided the following reasons for the delay:

“I missed the date to review the 30 July 2020 decision. Quite simply I had too much on my plate. I had filed 2 other QCAT proceedings (GAR193-20 and GAR194-20 which had directions requiring material to be filed on 28 August 2020 (I later managed to obtain an extension of that timeframe).

In addition, the substantive building dispute between Gedoun and the owner went to trial for 5 days between 24 and 28 August 2020. I attended the entire trial in Brisbane, which was away from my office in Townsville, during that week. The trial is ongoing. It is listed for a further 5 days on 12-16 April 2021 at which it is expected to conclude.

...

While I have been legally represented in proceedings BDL308-18, I was not at the time of the decision represented in QBCC matters. I engaged solicitors to represent me in the QBCC proceedings in or about September 2020. This application was filed soon afterwards.

‍Finally, the QBCC proceedings surrounding this case are the first time I have used the internal and external review proceedings contained in the QBCC Act. I was under the mistaken belief that the 30 July 2020 decision of the QBCC would automatically be ‘caught up’ in review proceedings GAR193-20 which I had commenced in June 2020 (because it concerns the same complaint). This is evident in my email dated 28 August 2020 in reply to the Commission’s letter of the same date.”

Application of legal principles to facts

Applying the first consideration, Member Cranwell found that the above explanation did not satisfactorily account for the delay, rejecting the director’s contentions and making clear that:^[9]

“I do not regard having ‘too much on my plate’ as being an acceptable explanation for the delay.”

On the question of “length of delay”, Member Cranwell was of the view that in the context of a 28-day time limit for filing an application, a six-week delay “is a considerable delay”.

In respect of the remaining factors, Member Cranwell was willing to give the Applicant the benefit of the doubt as to whether the review application had any merit and proceeded on the basis that the QBCC suffered no prejudice by the delay.

However, Member Cranwell ultimately concluded that the interests of justice did not favour an extension, primarily because the Applicant had not provided a sufficiently acceptable reason for the delay in making its application for the QBCC decision review.  As the application for an extension of time was refused, the application to review the QBCC’s decision was therefore dismissed.

Takeaways

If a person or company wanting to review a QBCC decision misses the deadline for lodging an application, the right of review is lost unless they can successfully apply to QCAT for an extension of time to lodge the late application.

However, a grant of an extension of time to lodge the application may be difficult to get, and its success will depend heavily, in part, on establishing a satisfactory reason for missing the deadline and any subsequent delay.

QBCC regulatory action often appears to be manageable in the beginning, but can quickly build in scope and complexity if not dealt with effectively as early as possible.   In the above case cited in this article, the Applicant was late lodging an application for review due to being embroiled in various disputes involving the QBCC and a consumer and became confused regarding which proceeding his application was being dealt with.

QCAT did not consider this to be an adequate excuse to extend the application period. Unfortunately, such problems are an all too common outcome of not engaging competent legal representation to deal with QBCC regulatory action at the earliest possible stage.

‍Law Force is ready to assist

QBCC regulatory disputes can be a complex area of law which features strict deadlines for the exercise of review rights, and dire outcomes if you get it wrong.  Given the serious consequences often involved, if you receive a QBCC Notice you should immediately contact Law Force Lawyers to obtain competent, independent legal advice regarding your particular circumstances, the validity of any adverse decision made against you, and the options that may be available to you to contest or reverse adverse QBCC regulatory action directed against you or your business.

For practical legal advice and effective support and assistance regarding your particular circumstances, contact Law Force Lawyers on 1300 445 000, or by email to info@lawforce.com.au. We provide focused, independent and effective advice and services and are ready to step in against the QBCC to save your licence and possibly your livelihood.

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Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), section 33.

[2] QCAT Act, section 61.

[3] Cardillo vQueensland Building Services Authority [2011] QCAT 574, [33] (citations removed).

[4] QCAT Act, section 61(3).

[5] [2011] QCAT 229, 3 [9].

[6] [2009] QCA 200, cited in Coppens v Water Wise Design Pty Ltd [2014] QCATA 309, [12].

[7] [2014] QCATA 309, 4 [14].

[8] [2022] QCAT 62.

[9] Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor [2022] QCAT 62, [11].

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