A.L. Builders Pty Ltd v Queensland Building Services Authority

[2012] QCAT 559

CITATION: A.L. Builders Pty Ltd v Queensland Building Services Authority and Ors [2012] QCAT 559

PARTIES:	A.L. Builders Pty Ltd (Applicant)
v
Queensland Building Services Authority Nicholas Fatseas Tricia Fatseas (Respondents)

APPLICATION NUMBER: GAR129-12

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kate Buxton, Member

DELIVERED ON: 7 November 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Nicholas and Tricia Fatseas are joined as respondents to this application on and from the date of this order.

2.    The application for extension of time to file a reopening application is dismissed.

3.    The reopening application is dismissed.

CATCHWORDS: Domestic building dispute – Joinder of homeowners to proceeding – date upon which the homeowners are joined as parties – application to reopen decision made by the Tribunal before the homeowners were joined as parties – retrospectivity

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Joinder

1. Nicholas and Tricia Fatseas are the homeowners of 20 Admiralty Drive, Paradise Waters.  The Queensland Building Services Authority has issued to direction to rectify number 37326 against A.L. Builders Pty Ltd.  A.L. Builders commenced these proceedings to review the direction to rectify and, initially, the applicant sought an extension of time within which to commence the review proceedings.  That extension was granted by the Tribunal.

2. The homeowners wish to be made a party to these proceedings.  This Tribunal accepts that the homeowners are “persons affected”[1] or “whose interests may be affected by the proceeding.”[2]  Neither A.L. Builders nor the Queensland Building Services Authority object to the joinder of the homeowners to the proceeding.[3]  It is the proper exercise of the Tribunal’s discretion, therefore, to join the homeowners as requested.

   [1] Section 87 Queensland Building Services Authority Act 1991.

   [2] Section 42(2)(b) Queensland Civil and Administrative Tribunal Act 2009.

   [3]        Letter QBSA to QCAT dated 11 September 2012.

3. Some complexity attaches to the homeowner’s application as the homeowners wish the joinder to be made retrospectively.  Alternatively, they seek an extension of time to apply to reopen the decision of the Tribunal extending time for the filing of the application.

4. This issue of restrospective effect of the joinder is relevant only to the homeowners' desire to reopen the decision extending time.  I will therefore consider the reopening issue first.

Reopening of order extending time

1. Applications to reopen are dealt with in chapter 2, part 7, division 7 of the QCAT Act. That division relates to reopening of a “proceeding that has been heard and decided by the Tribunal.” A reopening ground under section 137 can exist only if there has been a “hearing” of a “proceeding” and where one of two reopening grounds applies.

2. The plain language of this division indicates that the reopening process is to apply to final decisions only, and not to applications within a proceeding, or interlocutory decisions of this Tribunal. It would have been a simple matter to use more inclusive language had that been the statutory intention. Support for this interpretation can be found in section 140 of the QCAT Act which prescribes the effect of a decision to reopen section 140(1) provides that the Tribunal “must decide the issues in the proceeding that must be heard and decided again”. Section 140(4) provides that the Tribunal may “confirm or amend the Tribunal’s previous final decision in the proceedings; or set aside the Tribunal previous final decision in the proceedings and substitute a new decision.  Further, section 139(5) determines that the Tribunal’s decision on an application for reopening is final.

3. Therefore even if the homeowners had standing to apply or make an application in the proceeding with respect to the decision to extend time the reopening process does not apply as it is an interlocutory, rather than a final, decision.

4. A further fundamental difficulty with the application to reopen is that it may only be made by “a party to a proceeding.”[4] The homeowners seek to be joined to these proceedings and then to have the time limited for their response to, or participation in, the application to extend time to be extended by using section 61 of the QCAT Act. Section 61(1)(c) enables the Tribunal to waive compliance with a procedural requirement. A time limit may also be extended under subsection (b). However it is not the intention or scope of s 61 for it to be used to re-invent history when a party has not applied to be joined in a proceeding in a timely manner. Section 61 cannot be used to backdate the status of the homeowners and have them treated as parties so as to entitle them to make an application to reopen. This is because there was no procedural requirement or time limit applying to them at the date of the decision to extend time.

   [4] Section 138(1) QCAT Act.

5. As to the allegation of substantial injustice, and the merits of the reopening application generally, the homeowners assert that they were proper contradictors to the application to extend time.  The application to extend time was determined by the Tribunal as a proper exercise of its discretion on the basis of the material before it at the time.  Curiously the homeowners filed material in relation to the issue even though they were not parties.  That information was available to the Tribunal to inform itself on the issue of time if it wished.  A.L. Builders' material centred around the builder’s explanation for a very short delay in filing the application for the review together with the regulatory authority's acceptance of that explanation.  The QBSA submitted that there was no prejudice or detriment either to the Authority or to the homeowners arising from the granting of an extension of time to the builder given the shortness of the delay and the submissions of the QBSA on the point it is difficult to see how the Tribunal could have reached a decision other than the decision which he reached.  Even if this matter could be reopened it is open to the Tribunal to affirm the previous decision.  On the merits of the case it is clear that this is precisely what would have occurred in any valid reconsideration of this issue. 

6. The parties are entitled to finality in relation to the interlocutory steps taken in a proceeding.  The reopening process is not a vehicle for disturbing those necessary decisions made from time to time. 

Summary

1. The applicant homeowners, as a result of the combination of the applications currently before the Tribunal, seek:

   (a)That they be joined as a party to these proceedings;

   (b)That their joinder be backdated or, alternatively, that an extension of time under section 61 of the QCAT Act be granted to enable them to make an application to reopen the decision reached by the Tribunal whilst they were not a party in relation to the extension of time;

   (c)That this Tribunal reopen that decision;

   (d)That the application to extend time be refused.

2. There is no support either in the legislation or on the merits of the case that any procedural requirements be waived or time limits extended, that any interlocutory decision be revisited in any way, including by reopening, and that the decision to extend time for filing of the review application be reconsidered or reversed in any way.

3. The appropriate orders therefore are to allow the homeowners’ application to be joined on and from the date of this order, to dismiss the application for extension of time to file a reopening application and to dismiss the reopening application.