Andric v Queensland Building Services Authority

[2012] QCAT 108

CITATION: Andric v Queensland Building Services Authority [2012] QCAT 108

PARTIES:	Mr Paul Andric (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR337-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Jeremy Gordon, Member

DELIVERED ON: 14 March 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Application for extension of time within which to apply to the Tribunal for a review dismissed.

2.    Application for review filed on 1 November 2011 struck out.

CATCHWORDS:

Extension of Time – application to review direction to rectify – infringement notice served – application to be filed within 28 days of service of direction on the applicant – application out of time – whether power to extend time

Queensland Civil and Administrative Tribunal Act 2009, s 61
Queensland Building Services Authority Act 1991, s 86(2)(b)

Smith v Queensland Building Services Authority [2010] QCAT 448 followed

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

Background

1. Mr Andric is a builder licensed under the Queensland Building Services Authority Act 1991 (the “Act”).  He built a house in Graceville for Mr Scott Butler.

1. An inspection of the house was conducted on 2 August 2011 on behalf of the Queensland Building Services Authority (the “QBSA”) following a complaint by Mr Butler.

1. As a result of that inspection, on 23 August 2011 the QBSA issued and posted to Mr Andric a “Direction to Rectify and/or Complete No. 36689” requiring certain work to the house be carried out within 28 days.

1. Because Mr Andric did not carry out this work, on or about 12 October 2011 the QBSA issued and posted to him an Infringement Notice.

1. On 1 November 2011 Mr Andric applied to the Tribunal for a review of the direction of the QBSA.

The application

1. Mr Andric applies for an extension of time to apply to the Tribunal for the review of the direction of the QBSA.

Considerations

1. There is no doubt that the application for review is out of time. In this case an infringement notice was served and this means that by section 86(2)(b) of the Act, the application for review would have to be made within 28 days of the direction being served on the builder. Mr Andric responded to the direction on 13 September 2011 so he had received it by that date.

1. It is well established that the Tribunal has no power to enlarge the 28 day time period in section 86(2) of the Act. The reason was given by Senior Member Oliver in Smith v Queensland Building Services Authority [2010] QCAT 448:

Section 86(2) is a provision relevant to the substantive issue of whether jurisdiction exists to review a decision of the QBSA. Failure by a prospective applicant to file an application within the statutorily prescribed period of 28 days cannot be "cured" or "waived" by the operation of s 61(1) of the QCAT Act.

Conclusion

1. There is no alternative but to dismiss the application for an extension of time and in turn, to strike out the application for review filed on 1 November 2011.