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Dariush-Far v Chief Executive, Department of Justice and Attorney General

 

[2018] QCA 21

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Dariush-Far v Chief Executive, Department of Justice and Attorney General [2018] QCA 21

PARTIES:

ALEXANDER HAMID DARIUSH-FAR
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)

FILE NOS:

Appeal No 7618 of 2017

QCATA No 370 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Appeal Tribunal at Brisbane – Unreported, 29 June 2017 (Carmody J and Dr J R Forbes)

DELIVERED ON:

2 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2018

JUDGES:

Morrison and Philippides JJA and Applegarth J

ORDERS:

1. Application to adduce further evidence is refused.

2. Application for leave to appeal is refused.

3. The applicant pay the respondent’s costs of and incidental to the applications.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – LEAVE TO APPEAL – where the applicant faced disciplinary proceedings in the Queensland Civil and Administrative Tribunal – where the applicant was disqualified from holding a real estate licence – where the applicant appealed on the ground that the permanent disqualification was manifestly excessive – where the QCAT Appeal Tribunal dismissed his application for leave to appeal or appeal – where the applicant complains that questions asked during the Appeal Tribunal hearing were “irrelevant, defamatory, racist and bigoted” – whether the application raises a question of law which warrants the grant of leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150

Uniform Civil Procedure Rules 1999 (Qld)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Terera v Clifford [2017] QCA 181, cited

Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252; [2012] QCA 158, cited

Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495; [2015] QCA 50, cited

COUNSEL:

The applicant appeared on his own behalf

G P Sammon for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Crown Law for the respondent

  1. MORRISON JA:  I agree with the reasons of Applegarth J and the orders his Honour proposes.
  2. PHILIPPIDES JA:  I agree with Applegarth J’s reasons and with the orders proposed.
  3. APPLEGARTH J:  The applicant was a Gold Coast real estate agent.  Disciplinary proceedings were instituted against him.  The Queensland Civil and Administrative Tribunal made adverse findings, found charges proven and concluded that the applicant was not a suitable person to act as a real estate agent.[1]  As to penalty, the Tribunal concluded that the applicant:
  1. be reprimanded;
  1. be permanently disqualified from holding a licence or registration certificate under the Property Occupations Act 2014 (Qld);
  1. be disqualified from being an executive officer of a corporation that holds a licence or registration; and
  1. pay a fine of $5,000 within 42 days.
  1. The applicant applied for leave to appeal or to appeal to the Appeal Tribunal of QCAT.  He was legally represented at the time and confined his application to one against penalty.  His ground of appeal was that the Tribunal “erred at law and/or mixed fact and law” in imposing a penalty on him that was “manifestly excessive and unjust in the circumstances” in permanently disqualifying him from holding a licence or registration certificate and in disqualifying him from being an executive officer of a corporation that held such a licence or registration.
  2. On 29 June 2017 the Appeal Tribunal constituted by Carmody J and Dr J R Forbes refused the application for leave to appeal or appeal.  The applicant, who is now self-represented, applies for leave to appeal to this Court.  None of the matters which are stated in his application to justify the granting of leave to appeal relates to penalty.  All but one relate to facts found by the Tribunal Member, being matters which were not contested by him in his application to the Appeal Tribunal.  For example, they relate to the validity of the relevant contract of sale, whether the applicant was acting as an agent or in some other capacity in relation to the transaction and the circumstances under which the contract was signed by the sellers.  The remaining matter relates to a comment made during the Appeal Tribunal hearing.  His draft Notice of Appeal does, however, include as final grounds of appeal:

“10 Act of dishonesty was not several and continuous, as claim by respondent

11 The punishment does not fit the crime which base not on fact but fictional arguments”

  1. An appeal from the Appeal Tribunal to this Court against a decision of the Appeal Tribunal may be made:[2]
  1. only on a question of law; and
  1. only if the party has obtained the Court’s leave to appeal.

Leave will be granted if it is necessary to correct “a substantial injustice to the applicant”.[3]

  1. It is not the function of this Court to review findings of fact made by the original Tribunal, unless the fact-finding process gives rise to a question of law which justifies the grant of leave to appeal.  It certainly is not the function of this Court to review the merits of the original Tribunal’s fact-finding where the appeal to, or application for leave to appeal to, the Appeal Tribunal did not seek to overturn those findings of fact in relation to a disciplinary charge, and was confined to the question of penalty.
  2. The application and the applicant’s written submissions to this Court do not specifically identify an error of law allegedly made by the Appeal Tribunal in deciding whether two of the penalties imposed upon him were “manifestly excessive”.  Instead, he simply reiterates that the penalty imposed was excessive.  A particular difficulty for the applicant in attempting to show that the Appeal Tribunal erred in law in deciding the issue of whether the penalties were manifestly excessive is that the applicant’s submissions do not engage with the reasons of the Appeal Tribunal.  He does not explain how its reasons were affected by an error of law.

Grounds in relation to the facts relating to the charges

  1. The applicant does not have a reasonable argument that the Appeal Tribunal erred in law in considering the facts in relation to the original charges.  The Appeal Tribunal was not asked to overturn those findings of fact about the transaction, including the fact that the applicant acted as an agent, or the conclusion that he was not a suitable person to act as a real estate agent.
  2. Insofar as the application seeks to have this court make new findings of fact about matters such as the validity of the contract and whether he acted as an agent, it does not raise a question of law, let alone one that has sufficient prospects of success to warrant a grant of leave to appeal.

The point raised about the conduct of the Appeal Tribunal hearing

  1. The applicant complains about the conduct of the hearing before the Appeal Tribunal and asserts that Carmody J asked questions which were “irrelevant, defamatory, racist and bigoted”.  The applicant says that Carmody J raised the question of whether the applicant did not disclose his involvement in the company that contracted to buy the property because the sellers, who were Jewish, would not have sold the property to Iranians.  The applicant points out that this comment was without merit because the owners knew he was from Iran, he never hid that fact, and that one of the persons associated with the owners knew that religion and God were not a very important part of the applicant’s life.
  2. The original Tribunal found that the applicant did not disclose important and pertinent facts concerning the identity and status of the purchasing company, lied about the holding of the deposit in a fictitious trust account and fraudulently used the details of another person to try to terminate the contract.[4]  It did not find that the proven non-disclosure was motivated by a desire to not reveal that prospective buyers were from Iran.  The applicant’s case before the Tribunal was that he did not see any reason to disclose any information “in regards of the buyers because I was not acting for the partners of the land”.  The Tribunal found that the applicant was acting as the seller’s agent.  It found that the applicant entered into the transaction for the purpose of taking advantage of the seller’s circumstances to make a profit for himself.[5]
  3. The Appeal Tribunal was not invited or required to review the original Tribunal’s factual finding about the applicant’s motivation for not disclosing his relationship with the company which was the buyer under the contract.
  4. Nevertheless, in the course of discursive exchanges between the applicant’s counsel and the members of the Appeal Tribunal on 29 June 2017, the following discussion occurred:

“MR GARLICK:  Yes.  But, you know, Member Gardiner goes on – at page 9, in paragraph 25, he talks about – in his discussion, he talks about the public interest as an important factor in [indistinct]

HIS HONOUR:  See – see what – you could – you could infer, from what happened here, that your client knew that [indistinct] wouldn’t sell to Iranians and therefore created a sham to prevent them from exercising that choice.

MR GARLICK:  I can’t lead that.

HIS HONOUR:  No.  But you could infer that, because he says – your client says that he didn’t owe any responsibility to the sellers, because they weren’t his clients, and he was – that he was buying the land, and using the deregi – the false company, intending to transfer the company to Iranian persons, when the land was rezoned at his expense.  And, in order to achieve that purpose, he effectively deprived the sellers of the right to (a) not sell to particular people and (b) not to sell to anyone for seven months.

MR GARLICK:  And, your Honour, just to – let’s just expand on that point there, where he’s using a deregistered company to rezone the land.  So wouldn’t   

HIS HONOUR:  Because I wouldn’t know who the deregistered company was or who was behind it, would I?”

The discussion then turned to ASIC searches and other matters.

  1. This unnecessary speculation by the Presiding Member into the applicant’s motivation arose because the Presiding Member earlier in the hearing erroneously had said that there did not appear to be any findings by the Tribunal about the applicant’s motivation.[6]  Counsel for the applicant agreed and said that there was “nothing in the decision” about motive.[7]  This was not correct.  As noted, the Tribunal concluded that the applicant entered into the transaction with the purpose of “taking advantage of the seller’s circumstances to make a profit for himself”[8] and, in doing so, did not disclose important facts about the buyer.
  2. The Presiding Member’s speculation about the applicant’s motivation, as quoted above, was an unnecessary distraction.  It was also a speculative inference.  It was no part of the applicant’s case, either before the original Tribunal or before the Appeal Tribunal, that he created a sham or that he did so out of a concern that Jewish vendors would not sell to Iranians.  There is no evidence to support the theory that he was motivated by such a concern.  As appears from the transcript, counsel for the applicant before the Appeal Tribunal did not embrace the idea that the transaction was a sham for the reason that the Presiding Member suggested might be inferred.  The applicant’s counsel did not embrace the theory to the extent that the suggested motivation might be thought by some to be less serious than seeking to profit at the expense of a client.  That such a theory was contrary to his instructions and unsupported by the evidence is apparent from counsel’s comment “I can’t lead that”.
  3. To the extent the Presiding Member’s comment about the Jewish sellers may have reflected adversely on the sellers of the property, it was an unfortunate and irrelevant speculation.  It seemingly was not treated by the applicant’s legal representative at the hearing as a racist or bigoted comment, either in respect of the sellers or anyone else.  After Carmody J made the comment he was not asked by the applicant’s counsel to withdraw it or disqualify himself on the grounds of apprehended bias.  There is no evidence that the applicant took exception to the comment at the time and instructed his legal representatives to raise the matter.
  4. The comment in question was unnecessary, irrelevant to the issues the parties had formulated in written submissions for the Appeal Tribunal’s decision and an unfortunate speculation.  It did not, however, give rise to a reasonable apprehension of bias against the applicant.  Notably, no objection was taken to it at the time, with the applicant’s counsel being content to proceed to discuss other matters.  The comment was not repeated and did not feature in the Appeal Tribunal’s reasons.
  5. In the circumstances, the applicant has not raised a question of law in connection with the conduct of the hearing before the Appeal Tribunal which may be said to have sufficient prospects of success to warrant a grant of leave to appeal.

Does the application raise a question of law about penalty?

  1. The applicant appears to misapprehend the function of this Court, and to consider that it is open to him to seek new findings of fact concerning the transaction and his conduct, and that it is open to this Court to simply impose a lesser penalty than that imposed by the Tribunal, based upon its own assessment of the facts.  The applicant has not engaged with the submissions of the respondent before the Appeal Tribunal or before this Court, or the need to show that the decision of the Appeal Tribunal as to whether the relevant penalties were manifestly excessive was affected by an error of law.  He has not engaged with the fact that a penalty is not manifestly excessive because the decision-maker is said to have not given sufficient weight to mitigating factors, or because it was open to the decision-maker, as a matter of discretion, to impose a lengthy period of disqualification rather than a permanent disqualification.  In his application to the Appeal Tribunal the applicant was required to show that the exercise of the Tribunal’s discretion as to penalty miscarried, for example, in one of the ways identified in House v The King.[9]  As noted, the applicant’s application for leave to appeal does not identify in its eight grounds an error of law by the Appeal Tribunal with respect to the issue of penalty.
  2. Lest the applicant, as a self-represented litigant, apprehend that Grounds 10 and 11 of his draft Notice of Appeal have been overlooked, and that these matters demonstrate that the penalty was manifestly excessive, I will deal with each of them.  I have earlier quoted paragraph 10 of the draft Notice of Appeal, and in paragraph 3 of his affidavit sworn 26 July 2017 the applicant asks “how could a person for one single mistake lose everything he has worked for his entire life?”
  3. The case against the applicant did not concern a single mistake.  The Tribunal found that the applicant had “knowingly and repeatedly embarked on a course of misleading and deceptive conduct”.[10]  On the question of penalty it found that “there were multiple deceptions in many areas”.[11]  Those findings of fact were open on the evidence, and were supported by the written response to the application to QCAT in which the applicant stated:

“As time passed, it was much more difficult to tell the truth to Mr Cook and I sank myself deeper and deeper in lies and deception which I could not get out of.”

  1. The applicant has not demonstrated that this proposed ground of appeal raises a question of law or that any possible question of law has sufficient prospects of success to grant leave to appeal.
  2. The final ground of his proposed Notice of Appeal has been quoted earlier.  In short, it is the contention that the “punishment does not fit the crime”, and is based on the argument that the penalty was imposed upon the basis of fictions rather than fact.  However, the penalty was based on findings of fact about the relevant transaction, the applicant’s role as an agent, an evaluation of his conduct, and the fact that he showed “little or no remorse for his conduct”.  Based on the findings of fact made, it was open to the Tribunal at first instance to be satisfied that his actions were “so serious and so calculated that he was unsuitable to, in the future, hold a licence or certificate”.[12]
  3. The applicant failed to persuade the Appeal Tribunal that the penalty was not open to the Tribunal as a matter of discretion.  He failed to persuade the Appeal Tribunal that the relevant penalties were manifestly excessive.  His application to this Court insofar as it relates to the issue of penalty does not raise a question of law that has sufficient prospects of success to warrant a grant of leave to appeal.

The application to adduce further evidence

  1. The applicant applied to this Court to receive further evidence in the form of three categories of documents.  One was a transcript of the hearing before the Appeal Tribunal, which should have been included in the Appeal Record Book.  The Court made a direction that it be added to the Appeal Record Book as a supplement.  Another part of the application sought correspondence between the Office of Fair Trading and the police.  However, in the light of the contents of Mr Price’s affidavit that there were no relevant documents in this category, this part of the application was not pressed.  The remaining category of documents was correspondence between the applicant and the sellers’ solicitors and email correspondence between the applicant and one of the directors of one of the selling entities.  The applicant stated to this Court that the documents relied upon by the Tribunal, including emails, did not post-date July 2013, and that additional emails and documents from later in 2013 indicated that he made attempts to compensate the sellers by auctioning the property at his own cost, and the sellers suffered no loss.
  2. This Court may, on special grounds, receive further evidence as to questions of fact.[13]  The principles governing receipt of evidence under r 766(1)(c) are well-established.  Among other things, it must be shown that “the evidence could not have been obtained with reasonable diligence for use at the trial”.[14]  Another requirement is that the evidence must be such that, if given, “it will probably have an important influence on the result of the case, although it need not be decisive”.[15]
  3. On the hearing of the application, the applicant accepted that all of the documents which he now wants this Court to receive were in existence at the time the original Tribunal considered the respondent’s application.  He was a party to the relevant correspondence.  The documents could have been obtained with reasonable diligence and used before the Tribunal.
  4. In any event, it is difficult to see what influence the documents would have had on the result.  The material before the Tribunal included a letter from the sellers’ solicitors dated 23 October 2013 which complained about the applicant’s conduct as a real estate agent in, among other things, making false representations about the receipt of trust money being the deposits which he represented had been received from the buyer of the property.  The solicitors advised that their clients had accepted an offer from the applicant to auction the property and market it at his expense.  The auction had yet to take place.  If the property was sold for a certain price then they indicated that their clients would not have suffered a loss and the claim against the fidelity fund would be withdrawn.
  5. In his response to the application to the Tribunal, the applicant contended that the property was worth much more than the $1.1 million provided for in the contract and that due to increases in property values the previous owners had not suffered any loss.  The Tribunal noted these submissions and found that there was no evidence that the sellers had suffered any quantifiable financial detriment.  Instead, through the applicant’s multiple deceptions, it had been kept out of the market for over seven months.  The Tribunal found that in the end, “the only person substantially hurt by Mr Dariush-Far’s actions was himself”.[16]
  6. In summary, the Tribunal had evidence that in late 2013 the applicant attempted to assist the sellers to sell the property and that, as matters transpired, the sellers did not suffer any financial loss.  Further evidence about these matters, as contained in additional emails and other correspondence which the applicant seeks to place before this Court, would simply be evidence of matters which were not in contest before the Tribunal.  Before the Appeal Tribunal, the applicant’s solicitors, whilst acknowledging his serious misconduct, relied upon the findings that no financial loss had been suffered.  The further documents which the applicant asks this Court to receive have not been shown to be evidence that probably would have had an important influence on the result of the case before the Tribunal or before the Appeal Tribunal.
  7. The application to receive further evidence should be dismissed because:
  1. the documents in question could have been obtained with reasonable diligence for use before the Tribunal; and
  1. it has not been shown that they would have had an important influence on the result of the case.

Conclusion

  1. I would dismiss the application to adduce further evidence, dismiss the application for leave to appeal and order the applicant to pay the respondent’s costs of and incidental to the application.

Footnotes

[1] Chief Executive, Department of Justice and Attorney-General v Dariush-Far [2016] QCAT 368.

[2] Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 150.

[3] Underwood v Department of Communities [2013] 1 Qd R 252; [2012] QCA 158 at [54]; Terera v Clifford [2017] QCA 181 at [10].

[4]  [2016] QCAT 368 at [27].

[5]  At [26].

[6]  Transcript 29 June 2017, 1-10.

[7]  Ibid.

[8]  [2016] QCAT 368 at [26].

[9]  (1936) 55 CLR 499.

[10]  [2016] QCAT 368 at [28].

[11]  At [43].

[12]  At [48].

[13] Uniform Civil Procedure Rules 1999 (Qld), r 766(1)(c).

[14] Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495 at 559 [216]; [2015] QCA 50 at [216].

[15] Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495 at 559 [216]; [2015] QCA 50 at [216].

[16]  [2016] QCAT 368 at [51].

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Editorial Notes

  • Published Case Name:

    Dariush-Far v Chief Executive, Department of Justice and Attorney General

  • Shortened Case Name:

    Dariush-Far v Chief Executive, Department of Justice and Attorney General

  • MNC:

    [2018] QCA 21

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Applegarth J

  • Date:

    02 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment QCATA370/16 (No Citation) 29 Jun 2017 Carmody J and Dr J R Forbes.
Notice of Appeal Filed File Number: 7618/17 26 Jul 2017 -
Appeal Determined (QCA) [2018] QCA 21 02 Mar 2018 Application for leave to appeal refused: Morrison and Philippides JJA and Applegarth J.

Appeal Status

{solid} Appeal Determined (QCA)