Queensland Building Services Authority v Watkins [2013] QDC 198

Queensland Civil and Administrative Tribunal Act 2009, s 61

Uniform Civil Procedure Rules 1999, r 292

Aurisch v Milsons Pty Ltd & Ors [2011] QCAT 245

Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1961-1962) 108 CLR 471

Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9; (2008) 232 CLR 314

Cornpig Pty Ltd v Queensland Building Services Authority [2011] QCAT 255

David Grant & Co Pty Ltd v Westpac Banking Corporation & Ors [1995] HCA 43; (1995) 184 CLR 265

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232

Gallagher v Queensland Building Services Authority [2010] QCAT 383

Hope & Anor v Brisbane City Council [2013] QCA 198

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Manwin v Queensland Building Services Authority [2007] QDC 298

McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1

Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Raymond v Doidge [2012] QCAT 163

Reynolds v Aluma-Lite Products Pty Ltd (No 2) [2010] FCA 914

Smith v Queensland Building Services Authority [2010] QCAT 448

[1] The plaintiff, Queensland Building Services Authority ("QBSA"), seeks summary judgment pursuant to r 292 of the Uniform Civil Procedure Rules 1999 for the whole of the plaintiff's claim. The claim of $153,917.95 is alleged to be owed by the defendant ("Watkins") pursuant to s 71 of the Queensland Building Services Authority Act 1991 ("QBSA Act").

[2] Although the defendant argues that there are many facts in dispute and that that of itself give rise to triable issues in the regulatory framework determined by Deputy Commissioner of Taxation v Salcedo,[1] the main argument - and one which if resolved in favour of the defendant means that summary judgment cannot be obtained at this time - is that the Queensland Civil and Administrative Tribunal ("QCAT") has exclusive jurisdiction to determine an issue which is fundamental to the plaintiff's right of action. If this were to be so, then it is not appropriate to give summary judgment at this time.

[3] The application to QCAT was filed in its registry under the Queensland Civil and Administrative Tribunal Act 2009 ("QCAT Act") on 8 August 2013. It became Exhibit 1 in this application. Although it is not framed precisely - or even clearly - it does seek an extension of time pursuant to s 61 of the QCAT Act concerning the full amount of $153,917.95.

[4] The primary document relied upon by the defendant, which was sent by the plaintiff to the defendant and dated 21 November 2011, refers to identification of an insurance claim, regarding construction carried out by the defendant and encloses a "Scope of Works" required to complete the building. It is common ground that it was served around that time.

[5] Section 86(1)(g) of the QBSA Act states that QCAT may review decisions of the plaintiff including "a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work". Also importantly, s 86(2) states that QCAT "must not review", among other decisions of the plaintiff, 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 QCAT" for a review of the decision; see paragraph (c). To the extent that s 86(2)(b) is solely, alternatively or cumulatively operative, the same principles apply. Section 61 of the QCAT Act deals with, as the title of the section asserts, "relief from procedural requirements". In particular, s 61(1)(a) states that QCAT may, by order, "extend a time limit fixed for the start of a proceeding by ... an enabling Act". For completeness, s 61(1)(b) states that QCAT may, by order, "extend or shorten a time limit fixed by ... an enabling Act". The QBSA Act is an enabling act.

[6] Section 61(2) of the QCAT Act states that an extension can be given under s 61(1) "even if a time for complying with the relevant requirement has passed". Section 61(3) contains limitations on, relevantly, the extension of a time limit.

[7] The issue here is, thus, whether s 61(1) of the QCAT Act permits QCAT to review a decision within s 86(1)(g) of the QBSA Act where, indisputably, 28 days have elapsed since the relevant decision was served and the defendant has not, within that time, applied to QCAT for a review of the decision, so that s 86 (2)(c) then applies.

[8] Although the defendant referred to a number of QCAT decisions that it contended did favour the granting of power to QCAT in these circumstances (in particular, Gallagher v Queensland Building Services Authority[2]) and although the plaintiff referred to cases to the contrary effect (in particular, Cornpig Pty Ltd v Queensland Building Services Authority[3]), none of the decisions so referred to me contained any real analysis of the reasons for such a conclusion, although it should be noted that in Cornpig reference was made to Smith v Queensland Building Services Authority[4] where the same member who gave the decision in Gallagher seems to have given a contrary decision concerning the width of s 61(1) of the QCAT Act.

[9] Despite the fact that I have identified other decisions which would support the defendant's interpretation (namely, Aurisch v Milsons Pty Ltd & Ors[5] and Raymond v Doidge[6]) it is preferable to undertake an independent analysis myself, obviously assisted by the discussions had in a number of those cases.

[10] Very recently, the Queensland Court of Appeal considered the general issue of extension provisions. In Hope & Anor v Brisbane City Council,[7] Jackson J, with whom Muir and Gotterson JJA agreed, undertook an analysis of the critical sections in the Land Court Act 2000 dealing with the right to appeal. It was of importance in determining the outcome there that there was nothing in the Land Court Act which made any reference to an extension of time.

[11] What is important in the consideration by Jackson J is the steps to be taken in the statutory construction of provisions dealing with non-compliance with mandatory requirements concerning rights to appeal - equally applicable to a "review". He referred, first, to a proposition in Project Blue Sky Inc v Australian Broadcasting Authority[8] that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect and that whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition: at [15].

[12] Secondly, by reference to older, and also more recent, High Court authority, he accepted that the question was likely characterised as whether the requirement (there, of service on the other party within time) was a condition of the essence of the right of appeal or procedural, going only to the mode of enforcement of that right: at [16]. In Australian Iron & Steel Ltd v Hoogland,[9] Windeyer J undertook a considered analysis of statutory provisions imposing time limits, noting that they take various forms and have different purposes: some being for preventing stale claims; some for establishing possessory titles; some for the protection of public authorities; some in aid of executors and administrators; some being incidents of rights created by statutes; and some preventing actions being brought after - though some before - a lapse of time: at [488]. He noted that it may be that there is a distinction between statutes of limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing and limitation provisions annexed by a statute to a right and newly created by it, with, in the latter case, the limitation not barring an existing cause of action but, rather, imposing a condition which is the essence of the new right: also at [488]. Hoogland was referred to in David Grant & Co Pty Ltd v Westpac Banking Corporation & Ors[10] (a decision noted expressly by Jackson J in a footnote to paragraph [16]). Soon after Hoogland, Windeyer J in Pedersen v Young[11] stated that, while it is true enough that if the cause of action were a creature of the Queensland legislature, a provision that it could only be sued upon within a limited period might be regarded as an incident of the right that the legislature had created (and not merely as the barring of the remedy), "(s)ome time limits upon actions do extinguish existing rights" and "(o)thers provide an element in a right newly created by statute": at 169.

[13] I intend to return to some further High Court authorities in a moment. However, to continue with Jackson J's consideration in Hope, the third point that he made was that, in construing the "new right" given by the particular provisions in the case in question, it was well to bear in mind that the right of appeal and a power on appeal to set aside the decision appealed from (and to make other orders in lieu thereof) were "creatures of statute alone" and that "it is in and from the statute that the scope of the relevant right and power must be ascertained": at [17]. While acknowledging that there is no great purpose served in drawing the broad analogies between the powers of one court to extend time and the powers of another court operating under different statutory provisions and powers, he noted (by reference to cited authority) that in some cases a power to extend time was contained in the rules which themselves limited the time by which the appeal had to be brought and that those particular rules contained an express power to extend the time in question, on their proper construction: at [18] - [19].

[14] Because much emphasis was placed in some QCAT decisions upon what was said to be a distinction of importance between procedural law and substantive law, it is important that Brennan, Dawson, Toohey and McHugh JJ in McKain v RW Miller & Co (SA) Pty Ltd[12] remarked that a different kind of statute to one which bars the remedy, not the right, is one which creates "a right of limited duration" so that, after the expiry of the time prescribed, the right ceases to exist for any purpose, with such a statute being "substantive in nature": at [43], referring to the distinction between the two classes identified by Windeyer J in Hoogland. It needs to be remarked that in Reynolds v Aluma-Lite Products Pty Ltd (No 2),[13] Logan J stated[14] that it is to be remembered that McKain was followed by John Pfeiffer Pty Ltd v Rogerson[15] where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ held that the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure, it being earlier stated that though the dividing line is sometimes doubtful, even artificial, the need to distinguish between substantive law and procedural law is clearly recognised for a number of forensic purposes, including those concerning the "choice of law" rules: at 542 - 544 [97] - [100]. Thus, here, where no such concern of characterisation arises, s 43A of the Limitation of Actions Act 1974 ("LA Act") has little of assistance to add here. This is even though the heading of a section such as s 61 of the QCAT Act forms part of the section pursuant to s 14(2)(a) of the Acts Interpretation Act 1954; and it is because the question for determination here is the nature of the right created as determined in the whole of the statutory context where the QBSA Act and the QCAT Act overlap. As s 7 of the Limitation of Actions Act provides, relevantly, subject to s 43A, the Act does not apply to an action for which a limitation period is fixed by or under an enactment other than the Act itself.

[15] Although reference was made in submissions before me to Manwin v Queensland Building Services Authority,[16] a decision of McGill SC DCJ, while it did consider s 86(2)(b), it did not do so in the context of any consideration of whether the time period of 28 days could be extended. Consequently, it is, therefore, unsurprising that he concluded that it seemed to follow there that, if the appellant wanted to challenge the scope of the work required under the direction to rectify, that application to the Tribunal (which was the predecessor to QCAT) "had to be commenced before that exclusion began to operate": at [13]; though see, also, specific reference to s 86(2)(c) at [14].

[16] In 2008 the High Court had occasion to consider an extension provision where there were strongly competing views about statutory construction in the limitation field. In Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited,[17] the majority considered a number of provisions of the Corporations Act 2001 (Cth) in which the legislation stated that the conferral of power to extend time had effect "except so far as the contrary intention appears" and in which the definition of "extend" also contained the same proviso (i.e. about exclusion if a contrary intention appears). The analysis by the majority, noting the decision in David Grant, held that the proper interpretation revealed an emphasis in the particular provisions on the speedy resolution of the issues coupled with provisions seeking to focus attention at the hearing of such an application upon insolvency itself rather than the formal adequacy of steps preceding institution of the application: at 324 - 325 [18]. The majority held that it was important that it would be "sharply at odds with the purposes revealed by the provisions containing the resolution of applications to wind up in insolvency" to read the power to extend time for compliance with a statutory demand as capable of exercise after the time has expired: at 325 [19].

[17] But, as observed by Jackson J in Hope, drawing broad analogies does serve no great purpose in these circumstances, though it does draw attention to the importance of ascertaining the purpose of the provisions - or why each potentially applicable provision was inserted in those overlapping pieces of legislation. Where such conflict appears Project Blue Sky demands that it be alleviated, so far as possible by adjusting the meaning of competing provisions to achieve that result which will best give effect to the purpose and language of those provisions "while maintaining the unity of all the statutory provisions," perhaps by determining a hierarchy whereby one "must give way to the other": at 382 [70].

[18] Any decision to review pursuant to s 86(1) of the QBSA Act must necessarily involve a full consideration of the applicability of the QCAT Act to it. As earlier indicated, there is no doubt that the QBSA Act is an "enabling Act".

[19] The introductory words to the paragraphs of s 86(2) contain, on their face, a prohibition, using the term, "must not review". Nevertheless, as can be readily seen from a survey of those cases dealing with periods of limitation, similar wording does not, of itself, extinguish the right, at least insofar as it concerns a provision such as s 86(2)(c), in contrast to s 86(2)(a). In terms of the determining the essence of the right, it is impossible to construe s 86(2)(c) of the QBSA Act without first understanding that s 86(1)(g) does first give power to QCAT to review such a decision. That is, the prohibition upon review does not apply during the relevant 28 days. Further, unlike (for instance) s 12(2) of the Limitation Act, s 86(2)(c) does not seek to, expressly, extinguish a right to review, rather than prohibit its utilisation after a limited time has expired where it could be so used. But for s 61 of the QCAT Act, that may well have been effective in permanently excluding any review of that kind; but since it does exist, interpretative principles require a consideration of its effect.

[20] Additionally, unlike some other considerations in this area, s 61, apart from its title reference to "procedural" requirements, does not internally refer to any limitation such as being subject to a contrary intention appearing in affecting legislation, either being the same or overlapping legislation. Section 61(2) of the QCAT Act on its literal reading permits such an extension even if the time for complying has passed. Even if s 61(1)(a) were to be inapplicable by reason of s 86(2)(c) - for example, on its "proper" interpretation, not being characterised as "a time limit fixed for the start of a proceeding" - s 61(1)(b) is applicable as the 28 days is a "time limit fixed by ... an enabling Act". A potential test of the applicability of s 61(1) is to postulate the outcome if an application were to have been made to QCAT before the 28 days set out in s 86(2)(c) of QBSA Act had expired, particularly under s 61(1)(b). It is certainly open to conclude that, reading the provisions together, it would not of itself offend the overall scheme if an extension were to be applied for prior to the expiry of that 28 days.

[21] I accept that this is not an area where a clear-cut distinction one way or the other is obvious. Determining the hierarchy in this manner gives unity to the scheme, especially where I do not hold that the statutory context yields a need for a quick resolution, even though it may well be devined that it is desirable that decisions about such things as "the scope of works" ought be concluded in a timely way. This, though, can be dealt with by the discretionary provisions outlined in s 61(3) of the QCAT Act.

[22] Accordingly, I hold that the time condition in s 86(2)(c) is not an element or an incident (or even of the essence) of the right to make an application for review to QCAT but simply expresses a limitation on the enforcement of that right if the right is not exercised within that 28 days (or within such further time as QCAT extends) and, therefore, does not, otherwise, extinguish the existing right under s 86(1)(g) [cf. s 12(2) of the Limitation Act], but, rather, bars the right to review (unless statutorily unbarred).

[23] Because this statutory interpretation is fundamental to the outcome of the application for summary judgment, and since the application to QCAT was in fact filed on 8 August 2013, it is not within the proper utilisation of r 292 to give summary judgment at this time. I am declining to hear the alternative relief sought further than what I have already ruled upon, because this procedure may yet lead to the primary relief, after some time, being granted anyway.

[24] Even though it may well be expected that the period of time which has elapsed will almost inevitably lead to a dismissal of the application filed 8 August 2013, that is not within my province at this time to speculate about.

[25] Accordingly, since my present inclination is not to finally dismiss the application until it is clear what is occurring in QCAT with respect to the application filed 8 August 2013, I will make orders adjourning the application to a time to be fixed, with both parties having liberty to re-apply, before me, at an appropriate time for relisting of the application should, for instance, the application to QCAT be dismissed.

[26] As to costs, it is impossible for me to determine whether in this case the application by the defendant to QCAT was always likely to be a fruitless exercise, in circumstances where I have found that the prohibition contained in s 86(2) of QBSA Act was not fatal to such application. I will, therefore, reserve costs.

[1] [2005] QCA 227; [2005] 2 Qd R 232.

[2] [2010] QCAT 383.

[3] [2011] QCAT 255.

[4] [2010] QCAT 448.

[5] [2011] QCAT 245.

[6] [2012] QCAT 163.

[7] [2013] QCA 198.

[8] [1998] HCA 28; (1998) 194 CLR 355, at [91].

[9] [1962] HCA 13; (1961-1962) 108 CLR 471.

[10] [1995] HCA 43; (1995) 184 CLR 265 at 276 - 277.

[11] [1964] HCA 28; (1964) 110 CLR 162.

[12] [1991] HCA 56; (1991) 174 CLR 1.

[13] [2010] FCA 914.

[15] [2000] HCA 36; (2000) 203 CLR 503.

[16] [2007] QDC 298.

[17] [2008] HCA 9; (2008) 232 CLR 314.