Relief from procedural requirements. The Tribunal may ... (b) extend ... a time limit fixed by this Act, and enabling Act, or the rules.

[14] In its decision to adjourn the Authority's summary judgment application on 5 September 2013 the District Court took the view that section 61 enables the Tribunal to extend the time limits in section 86(2) of the QBSAA, although "this is not an area where a clear-cut distinction ... is obvious."[15] At the same time the Court acknowledged that the long-delayed request for an extension would "almost inevitably" be refused.[16]

[15] With due respect, I decline to follow that interlocutory decision.[17] If I am wrong, I may be put right in a higher place. In Queensland Building Services Authority v Robuild Pty Ltd[18], I expressed an obiter view[19] that section 61 of the QCAT Act is not a solvent for the exclusions of jurisdiction in section 86 of the QBSAA, because -

The prohibition in section 86(2) defines and limits the jurisdiction of the Tribunal ... It is not merely a procedural rule that may be relaxed under section 61 of the QCAT Act. It is a mandatory, substantive rule of law,[20] and a condition of jurisdiction.[21]

[16] I note that at least two senior members of the Tribunal have delivered conclusive judgments to the same effect.[22] The Applicant relies upon Gallagher v Queensland Building Services Authority[23], but it hardly assists his case. There the application for review was dismissed, although the challenger did not face the strict time limits that confront the present application.[24]

[17] With respect, we are not bound by decisions of the District Court, particularly when a different view[25] on the same point has been expressed in that Court. The District Court is not in the line of authority that governs the Tribunal. Decisions of the Tribunal at first instance (excepting any made by a judicial member) are subject to an internal appeal, and thereafter to the Court of Appeal and the High Court. Besides, it is arguable, at least, that interlocutory decisions do not give rise to binding authority.[26] In any event the duty to do justice according to law warrants a departure if higher authority so requires[27], as in this case I consider it does.

[18] The guiding principle, as I see it, is to be found in the judgment of Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[28]:

When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised, and the conditions and restrictions which must be observed [in so doing], it excludes the operation of general expressions ... which might otherwise have been relied on for the same power.

[19] In that case their Honours were referring to "general expressions" in the very Act conferring the power in question. Their observations apply a fortiori, I suggest, when the "general expression" relied on for a dispensation appears in a different Act, where it is clearly labelled procedural.

[20] In my view section 61 of the QCAT Act may no more be used to escape the imperative "must not" in section 86(2) of the QBSAA than it may be used to bypass the mandatory exceptions to the general grant of jurisdiction in section 103 of the Retail Shop Leases Act 1994.[29] In each case the negative provision is substantive, and defines the limits of jurisdiction. It is no mere procedure, subject to discretionary liberalisation.

[21] Hope & Anor v Brisbane City Council[30] turned on the following provision in section 65 of the Land Court Act 2000:

A party intending to appeal against a decision of the Land Court must[31] within 42 days after the order ... is made ... serve notice of the appeal upon all other parties ... and the Registrar of the Land Appeal Court.

[22] The appellant challenged the Land Court's decision that late service of the notice of appeal was fatal. The Court of Appeal (Jackson J, Muir and Gotterson JJA agreeing) held that:

... the Land Court correctly characterised the question as whether the requirements of service ... 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.

The mandatory language used in s 65, together with its proximity to s 64 which creates the right of appeal, lead us to conclude that it is a condition of the institution of an appeal that there be compliance with s 65. A failure to do so means that there is no valid appeal.[32]

[24] The Court of Appeal unanimously endorsed that opinion. The bar was absolute, not conditional.[33] The same principle was applied in David Grant & Co Pty Ltd v Westpac Banking Corporation & Ors[34] to deny the appellant a waiver of "procedural irregularities". Gummow J observed:

As a general precept, it is inappropriate to read provisions which confer jurisdiction ... by the making of implications or impositions not found in the express words of the legislative provision.[35]

[25] The present question is not to be resolved by reference to authorities on extension of time limits in general statutes of limitation.[36] Those limits are clearly procedural.[37] If an opponent does not take the point, "the matter of the statutory bar does not arise for the consideration of the court".[38] It is then quite unnecessary to seek an extension of time. General limitation Acts bar access to curial remedies; they do not extinguish causes of action. Unlike subsection 86(2) of the QBSAA they "affect procedure, not substance".[39] That is why, absent a plea in bar, a claim that is potentially caught by the Limitation of Actions Act 1974 may simply proceed without let, hindrance, or extension. That is why an acknowledgement of debt or a part payment[40] restores the right to sue for a debt otherwise "stale".

[26] For these reasons I am bound to find that Mr Watkins' application for review is incurably out of time, and that QCAT has no jurisdiction to entertain it. The Authority's application to strike out his substantive and procedural applications succeeds. There will be orders accordingly.

[27] It follows that I need not discuss the issues that would have arisen if section 61 of the QCAT Act applied.[41] I merely observe that the delay is so long as to call for a cogent explanation, and there is uncontradicted evidence that the Applicant was told of the availability of review as long ago as November 2011.[42] The Applicant seeks to dispute the "scope" of the subject agreement. While it might glibly be said that an extension (if lawful) would not prejudice the Authority, the task of re-assembling, years later, the evidence of the building owner, and of its inspectors and the remedial contractors is likely to be considerable. However, those considerations need not be further pursued.

1. The application for extension of time is dismissed.
2. The application for review is dismissed.

[4] As defined in s 6(2)(a) of the QCAT Act.

[6] Described as a "modifying provision": QCAT Act s 7(1).

[10] Application for review Part C (why decision is wrong) and (describe that you want to happen).

[11] Application for review Part C (any other facts you think are important).

[12] QBSAA ss 86(2)(a), (b)(i)(B), (c).

[13] Decision to recover an amount from the licensee.

[14] Cf the comment on a similar provision in Part 5.4 of the corporations code in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9; (2008) 232 CLR 314 at 323.

[15] Queensland Building Services Authority v Watkins [2013] QDC 198 at [21].

[16] Queensland Building Services Authority v Watkins [2013] QDC 198 at [24].

[17] For a different view in the District Court see Manwin v Queensland Building Services Authority [2007] QDC 298 at [16].

[18] As yet unreported, APL226-13, 23 August 2013 at [11].

[19] It was strictly unnecessary to decide the present point in Robuild, as in that case the Authority's notice was not properly served.

[20] Ken Harrison Homes v Queensland Building Services Authority [2007] CCTTB 61 at [18]; Smith v Queensland Building Services Authority [2010] QCAT 448 at [30]; Manwin v Queensland Building Services Authority [2007] QDC 298 at [16]; and compare Sendall v Howe and Anor [2012] QCATA 41 at [10].

[21] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 584 per Latham CJ.

[22] Mundy v Queensland Building Services Authority [2012] QCAT 15; Cornpig Pty Ltd v QBSA [2011] QCAT 255; Customizer Kitchens QLD v QBSA [2011] QCAT 13.

[23] [2010] QCAT 383. See also Smith v Queensland Building Services Authority [2010] QCAT 448 at [3]; Ken Harrison Homes v Queensland Building Services Authority [2007] CCTTB 61 at [18]; Manwin v Queensland Building Services Authority [2007] QDC 298 at [16].

[24] Gallagher had been categorised as an "excluded individual".

[25] See Manwin v Queensland Building Services Authority [2007] QDC 298 at [16].

[26] Boys v Chaplin [1967] EWCA Civ 3; [1968] 2 QB 1; Pett v Greyhound Racing Association (No 2) [1970] 1 QB 46.

[27] Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327; (2007) 70 NSWLR 448 at [32].

[28] [1932] HCA 9; (1932) 47 CLR 1 at 7.

[29] "QCAT has jurisdiction to hear retail tenancy dispute, other than a retail tenancy dispute ... about ... arrears of rent under a retail shop lease ..." (etc): Retail Shop Leases Act 1994 s 103(1)(b)(i).

[30] [2013] QCA 198.

[32] Quoted in [2013] QCA 198 at [11].

[33] Contrast the removeable procedural bar in Australian Iron and Steel Ltd v Hoogland

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

[34] [1995] HCA 43; (1995) 184 CLR 265.

[35] [1995] HCA 43; (1995) 184 CLR 265 at 275-276.

[36] E.g. the Limitation of Actions Act 1974.

[37] Mills v Fowkes (1839) 5 Bing (NS) 455; [1839] EngR 659; 132 ER 1174.

[38] Commonwealth of Australia v Mewett (1997) 91 CLR 471 at 534 per Gummow and

Kirby JJ; Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 473-474.

[39] Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162 at 166 per Kitto J.

[40] Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233; Bank of China Ltd v CGS (Group)

Pty Ltd [2009] NSWSC 397 at [29]; Limitation of Actions Act 1974 s 35.

[41] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

[42] Affidavit of Claude Paul, sworn on 12 July 2013 and filed in the District Court

proceedings, paragraph 15. Mr Paul's offer of an extension was legally unsound, and could not create an estoppel contrary to the statute: Roma Electric Light & Power Co Ltd v Hair [1955] St R Qd 311; Re Jauncey [1980] Qd R 335; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18.