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Valuers Registration Board of Queensland v Murphy[2021] QCA 159

Valuers Registration Board of Queensland v Murphy[2021] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

Valuers Registration Board of Queensland v Murphy [2021] QCA 159

PARTIES:

VALUERS REGISTRATION BOARD OF QUEENSLAND

(applicant)

v

NEIL PATRICK MURPHY

(respondent)

FILE NO/S:

Appeal No 11088 of 2020

QCATA No 73 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2020] QCATA 138 (Senior Member Aughterson, Member Browne)

DELIVERED ON:

6 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2021

JUDGES:

Sofronoff P, Mullins JA and Bradley J

ORDERS:

  1. Leave to appeal against order 2 of the appeal tribunal made on 18 September 2020 granted.
  2. Appeal allowed.
  3. Order 2 of the appeal tribunal made on 18 September 2020 is set aside and, in lieu, it is ordered:
    1. (a)
      Appeal to the appeal tribunal is allowed;
    2. (b)
      The order of the Tribunal at first instance made on 25 February 2019 dismissing the applicant’s referral to the Tribunal is set aside and, in lieu, the application of the respondent filed on 12 October 2018 in the Tribunal is dismissed.
  4. The respondent must pay the applicant’s costs of the application for leave to appeal and the appeal.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – OTHER CASES – where the applicant board constituted under the Valuers Registration Act 1992 (Qld) (the Act) gave notice that it intended to take disciplinary action against the respondent registered valuer – where the respondent requested the board refer the matter to the Queensland Civil and Administrative Tribunal (QCAT) pursuant to s 52(2)(c)(iii) of the Act – where the board performs a statutory function in dealing with the request – whether sections 50, 51 and 52 of the Act impose a duty on the board to make the referral to QCAT upon receiving the request

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – OTHER CASES – where the applicant board constituted under the Valuers Registration Act 1992 (Qld) (the Act) gave notice that it intended to take disciplinary action against the respondent registered valuer – where the respondent requested the board to refer the matter to QCAT pursuant to s 52(2)(c)(iii) of the Act – where there was no time period specified in the Act for making the referral – where the board referred the matter to QCAT five months after the respondent’s request – where the QCAT member struck out the proceeding because the board did not refer the matter to QCAT “as soon as possible” pursuant to s 38(4) of the Acts Interpretation Act 1954 (Qld) (AIA) – where the QCAT appeal tribunal dismissed the board’s appeal – whether a breach of s 38(4) of the AIA invalidates the referral – whether the Tribunal erred in striking out the proceeding

Acts Interpretation Act 1954 (Qld), s 24AA, s 38, s 49A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 34, s 35, s 36, s 47, s 48, s 61, s 150, s 164

Valuers Registration Act 1992 (Qld), s 50, s 51, s 52, s 59, s 64

Ashtrail Pty Ltd v Council of the City of Gold Coast (2020) 4 QR 192; [2020] QCA 82, considered

Ex parte Austco Pty Ltd [1985] 2 Qd R 1, cited

Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd (2019) 2 QR 190; [2019] QCA 177, considered

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; [1998] HCA 28, considered

Re Conset Investments Pty Ltd [1993] 2 Qd R 244; [1992] QSC 189, not followed

Registrar of Motor Vehicles v Vu (2013) 115 SASR 385; [2013] SASCFC 10, considered

COUNSEL:

G W Diehm QC for the applicant

D A Kelly QC, with S Eggins, for the respondent

SOLICITORS:

RBG Lawyers for the applicant

Colin Biggers & Paisley Lawyers for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Mullins JA.
  2. [2]
    MULLINS JA:  The applicant is the board constituted under the Valuers Registration Act 1992 (Qld) (the Act) that has functions in respect of complaints against, and discipline of, registered valuers.  The respondent was, and is, a registered valuer.
  3. [3]
    On 20 March 2018 the board gave the respondent’s lawyer notice of its intention to take disciplinary action against the respondent in respect of a complaint received by the board in April 2017.  On 12 May 2017, the board authorised a senior counsel to investigate the conduct of the respondent on behalf of the board and the investigator’s final report to the board was dated 23 February 2018.  In accordance with s 52(2) of the Act, the board’s notice gave the respondent until 11 April 2018 to respond to the board in relation to the allegations in the notice.  The board’s notice informed the respondent that the board had reviewed the complaint against the respondent, the respondent’s responses to the complaint and the investigator’s reports and that the board “reasonably considers that you have engaged in professional misconduct in your performance as a valuer”.  The board’s notice also informed the respondent that, in the absence of any further material or referral of the matter to the Queensland Civil and Administrative Tribunal (QCAT), the board proposed to reprimand the respondent, order him to give an undertaking to abstain from acting as an advocate in a matter where another member of the same firm has acted, or is acting, as an expert in that matter, impose a monetary penalty of 10 penalty units ($1,201.50) and publicise the decision on the board’s website without disclosing the respondent’s name.
  4. [4]
    By letter dated 10 April 2018, the respondent’s lawyer notified the board that the respondent required the board to refer the matter to QCAT pursuant to s 52(2)(c)(iii) of the Act.  The letter did not set out any reasons for the request or provide any further material that may have affected the board’s indication that it considered the respondent had engaged in professional misconduct and the proposed disciplinary action.
  5. [5]
    On 19 September 2018, the board referred the disciplinary proceeding to QCAT by filing application OCR252-18 that was signed by the secretary of the board.  On 12 October 2018, the respondent filed an application to have the proceeding struck out on the ground that QCAT lacked jurisdiction, because of the board’s delay in referring the matter to QCAT.  That application was heard by Member Kanowski who struck out the proceeding on the basis the board did not refer the matter to QCAT as soon as possible pursuant to s 38(4) of the Acts Interpretation Act 1954 (Qld) (AIA), the referral could proceed only if an extension of time were granted by the Tribunal, and it was not appropriate to grant an extension of time to make the referral: Valuers Registration Board v Murphy [2019] QCAT 41.
  6. [6]
    The applicant applied for leave to appeal to the appeal tribunal of QCAT from the Tribunal’s decision.  The appeal tribunal was constituted by Senior Member Aughterson as the presiding Member and Member Browne, each of whom gave reasons for reaching a different outcome.  The order made by the appeal tribunal therefore reflected the conclusion of the presiding Member and leave to appeal was granted and the appeal was dismissed: Valuers Registration Board of Queensland v Murphy [2020] QCATA 138 (the reasons).  The effect of the appeal being dismissed by the appeal tribunal was that the orders made by the Tribunal refusing the board’s application for an extension of time to make the referral and dismissing the referral remain effective.

Leave to appeal

  1. [7]
    The board seeks leave to appeal on grounds confined to the proper construction and interplay between s 50, s 51 and s 52 of the Act, s 38(4) of the AIA and the jurisdictional and procedural provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).  The board does not apply for leave to appeal against the appeal tribunal’s dismissal of the appeal against the Tribunal’s refusal to extend the time for making the referral.
  2. [8]
    The board submits that the construction by the presiding Member of this legislative scheme was wrong and affects the way in which referrals under the Act can be made in future and other enabling Acts providing for referrals may similarly be affected.  As a result of the appeal tribunal’s decision, the board also submits that it has been prevented from pursuing an important statutory function it performs with respect to disciplinary proceedings against registered valuers in the public interest.
  3. [9]
    The respondent accepts that the grounds raised by the appeal concern important questions of law relating to the proper interpretation of the relevant statutory provisions and does not oppose the grant of leave to appeal.
  4. [10]
    The grounds of appeal raise pure questions of law in relation to the application of s 38(4) of the AIA to the disciplinary regime under the Act which may also have application to analogous legislation and it is therefore appropriate to grant the leave to appeal.

Appeal grounds

  1. [11]
    There are two substantive grounds of appeal:

“1. The Appeal Tribunal erred in holding that s. 38(4) of the Acts Interpretation Act 1954 (Qld) applied to the referral made by the applicant to QCAT so as to mean that it stood to be dismissed once the referral was not made ‘as soon as possible’.

  1. Alternatively, the Appeal Tribunal erred as a matter of law by holding that the referral by the Applicant to QCAT, once not made ‘as soon as possible’ within the meaning of s. 38(4) of the Acts Interpretation Act 1954 (Qld), could not be heard and determined without an extension of time for its filing being obtained.”

Relevant statutory provisions

  1. [12]
    Sections 50 to 52 of the Act provide:

50 Disciplinary proceedings

  1. (1)
    This section applies if, after considering an investigator’s report, the board reasonably considers that a valuer has engaged in—
  1. (a)
    professional misconduct; or
  1. (b)
    incompetence or negligence in the person’s performance as a valuer.
  1. (2)
    The board may, as it considers appropriate in the circumstances—
  1. (a)
    refer the matter to QCAT to decide; or
  1. (b)
    if it considers the matter does not warrant referral to QCAT—
  1. (i)
    take disciplinary action against the valuer under section 51; or
  1. (ii)
    take no further action.
  1. (3)
    A referral under subsection (2)(a) must be made as provided under the QCAT Act.

51 Board may take disciplinary action

  1. (1)
    Subject to section 52, the board may do 1 or more of the following—
  1. (a)
    admonish or reprimand the valuer;
  1. (b)
    order the valuer to give an undertaking to abstain from particular conduct;
  1. (c)
    order the valuer to pay to the board a penalty of an amount equal to not more than 20 penalty units.
  1. (2)
    The board must give a valuer an information notice for its decision to take action against the valuer under subsection (1).
  1. (3)
    The board may publish, in the newspaper or on its website, notice of any action taken under subsection (1).

52 Notice of intention to take disciplinary action

  1. (1)
    Before taking action against a valuer under section 51, the board must give to the valuer written notice of its intention to take the action.
  1. (2)
    The notice must state—
  1. (a)
    the professional misconduct, incompetence or negligence alleged against the valuer; and
  1. (b)
    the facts and circumstances forming the basis for the allegations; and
  1. (c)
    a day, at least 14 days after the day the notice is given, by which the valuer may, in relation to the allegations stated in the notice—
  1. (i)
    make written representations to the board; or
  1. (ii)
    request the board to hear him or her; or
  1. (iii)
    require the board to refer the matter to QCAT.
  1. (3)
    If the valuer requests a hearing, the board must advise the valuer of a time and place at which the valuer may appear before the board.
  1. (4)
    When deciding the action to be taken against a valuer under section 51, the board must consider any representations made by the valuer about the allegations.
  1. (5)
    If the valuer requires the board to refer the matter to QCAT, the board can not proceed to take action against the valuer under section 51.”
  1. [13]
    If the disciplinary matter is referred to QCAT, the potential consequences for a registered valuer are more significant than if the board takes disciplinary action pursuant to s 51(1) of the Act.  The orders that can be made by QCAT are set out in s 59(1) of the Act:

“If QCAT finds a registered valuer has engaged in professional misconduct, incompetence or negligence, QCAT may do 1 or more of the following—

  1. (a)
    admonish or reprimand the valuer;
  1. (b)
    order the valuer to give an undertaking to abstain from specified conduct;
  1. (c)
    order the valuer to pay to the board a penalty of an amount equal to not more than 100 penalty units;
  1. (d)
    order that the valuer’s registration be suspended for up to 12 months;
  1. (e)
    order that the valuer’s registration be cancelled.”
  1. [14]
    Under s 59(2) of the Act, QCAT may order the valuer to pay the board, within a stated time, the costs or part of the costs of and incidental to the proceeding, including the costs or part of the costs of the investigation that led to the proceeding.  An order for payment of a penalty or for costs may, pursuant to s 59(3) of the Act, contain a direction that the valuer’s registration is to be suspended for a stated period or cancelled, if the valuer fails to pay the penalty or costs within the stated time.
  2. [15]
    Section 64(1) of the Act provides:

“A proceeding in a court in the name of the board may be instituted by the chairperson, the secretary or a person authorised by the chairperson.”

  1. [16]
    Section 24AA of the AIA provides:

“If an Act authorises or requires the making of an instrument or decision—

  1. (a)
    the power includes power to amend or repeal the instrument of decision; and
  1. (b)
    the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.”
  1. [17]
    Section 38(4) of the AIA provides:

“If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.”

  1. [18]
    Section 49A of the AIA provides:

“If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal.”

  1. [19]
    Section 9 of the QCAT Act provides:

“(1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

  1. (2)
    Jurisdiction conferred on the tribunal is
  1. (a)
    original jurisdiction; or
  1. (b)
    review jurisdiction; or
  1. (c)
    appeal jurisdiction.
  1. (3)
    Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter.
  1. (4)
    The tribunal may do all things necessary or convenient for exercising its jurisdiction.”
  1. [20]
    The term “enabling Act” is relevantly defined in s 6(2)(a) of the QCAT Act as “an Act, other than [the QCAT] Act, that confers original, review or appeal jurisdiction on the tribunal”.  Section 15(b) of the QCAT Act permits the Tribunal to exercise its original jurisdiction conferred by an enabling Act if “a person has, under [the QCAT Act] referred a matter to the tribunal to exercise its original jurisdiction”.  The Tribunal was therefore exercising original jurisdiction in respect of the board’s referral of the respondent’s matter to QCAT.
  2. [21]
    Section 34 of the QCAT Act provides:

“(1) This section applies if an enabling Act provides for the referral of a matter to the tribunal.

  1. (2)
    The referral must be made—
  1. (a)
    within the period provided for under the enabling Act; and
  1. (b)
    in a way complying with the rules.”
  1. [22]
    Section 35 of the QCAT Act deals with the acceptance or rejection of an application or referral to the Tribunal by the principal registrar.
  2. [23]
    Pursuant to s 36 of the QCAT Act, a proceeding starts when the principal registrar accepts an application or referral, whether or not on conditions.  As the referral from the board was accepted in QCAT by the principal registrar, the proceeding by the board against the respondent had commenced.
  3. [24]
    The Tribunal is empowered pursuant to s 47 of the QCAT Act, if the Tribunal considers the proceeding or a part of the proceeding is an abuse of process, to dismiss or strike out the proceeding or part of the proceeding.  There is also power for the Tribunal pursuant to s 48 of the QCAT Act to order a proceeding to be dismissed or struck out, if the Tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding.  The Tribunal is also empowered pursuant to s 61(1)(a) of the QCAT Act to order an extension of a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act.  Under s 164(1) of the QCAT Act, the Tribunal is a court of record.

The reasons

  1. [25]
    It was conceded by the board before the appeal tribunal that the referral by the board to QCAT had not been filed “as soon as possible”.  Grounds 2 and 3 before the appeal tribunal raised the questions of whether the Tribunal erred in holding that it had jurisdiction to determine the referral only if an extension of time was granted or whether the Tribunal erred in failing to hold that it had jurisdiction to determine the referral, even if the referral was not filed “as soon as possible”.  The presiding Member analysed (at [24]-[25] of the reasons) the operation of the relevant provisions of the Act:

[24] The operation of the relevant provisions of the VR Act is quite different. There is no statutory duty on the part of the Valuers Registration Board to take disciplinary action in relation to a valuer. Rather, as allowed by s 50(2) of the VR Act, the Board ‘may’ refer the matter to QCAT to decide, or, if referral to QCAT is not warranted, take disciplinary action under s 51 or take no further action. Even where the valuer has elected to require the Board to refer the matter to QCAT pursuant to s 52(2)(c)(iii), there is no duty in a relevant sense to make that referral. Section 52(5) of the VR Act simply provides that once that election has been made ‘the board can not proceed to take action against the valuer under section 51’.

[25] It is evident that it remains open to the Board not to proceed with disciplinary action at all. Section 50(2) of the VR Act provides that the Board ‘may’ take disciplinary action and presumably, once a response is received from the valuer under s 52, it can review its decision and exercise the discretion not to continue with the disciplinary proceedings.” (footnote omitted)

  1. [26]
    The presiding Member considered (at [27] of the reasons) that s 38(4) of the AIA applied to the referral by the board of a matter to QCAT pursuant to a request under s 52(2)(c)(iii) of the Act.  The presiding Member concluded (at [34]) that, unlike the obligation to issue the notices under the legislation considered in Registrar of Motor Vehicles v Vu (2013) 115 SASR 385, there was no obligation on the part of the board to institute disciplinary proceedings, as it was at the discretion of the board upon receiving the election by the valuer to refer the matter to QCAT either to make the referral or to determine to discontinue disciplinary proceedings.  The presiding Member therefore characterised that as analogous to the “right or entitlement” to appeal considered in Re Conset Investments Pty Ltd [1993] 2 Qd R 244.  The presiding Member held (at [35]) that grounds 2 and 3 of the appeal should be dismissed.
  2. [27]
    Member Browne considered (at [118] of the reasons) that if the valuer elected to have the matter referred to QCAT under s 52(2)(c)(iii) of the Act, the board remained seized of the matter for the purposes of s 50 and had a duty to file a referral in QCAT.  Member Browne referred to Ashtrail Pty Ltd v Council of the City of Gold Coast (2020) 4 QR 192 in which the issue was the application of s 38(4) of the AIA to the commencement of a proceeding by the Council to enforce a condition of an approval concerning alleged non-compliance where there was a considerable delay in the commencement of the proceeding.  Morrison JA (with whom the other members of the court agreed) endorsed the view of the primary judge that s 38(4) was not applicable, as it does not operate as a legal limitation or bar to a proceeding of the type under consideration, and its application otherwise would depend upon the delay causing some form of prejudice.
  3. [28]
    Member Browne applied Vu and Ashtrail to hold (at [132] of the reasons) that, consistent with the legislative purpose of the Act, the board’s failure to file the referral in QCAT as soon as possible neither rendered the referral a nullity nor deprived QCAT of jurisdiction to determine the matter. Member Browne held (at [138]-[139]) of the reasons) that the effect of s 38(4) of the AIA in circumstances where there was a failure to file as soon as possible under the Act would depend upon the delay causing some form of prejudice and the Tribunal’s finding that it had jurisdiction provided that an extension of time was granted was in error.  Member Browne therefore would have allowed the appeal on the basis of grounds 2 and 3 and would have dismissed the respondent’s application for dismissal of the referral proceeding.

What is the effect of the respondent’s request of the board pursuant to s 52(2)(c)(iii) of the Act to refer the matter to QCAT?

  1. [29]
    The different approaches of the Members of the appeal tribunal to the role of the board on receipt of the respondent’s request pursuant to s 52(2)(c)(iii) of the Act to refer the matter to QCAT means that issue should be considered before dealing with the grounds of appeal.
  2. [30]
    It is apparent from the board’s submissions on the application to this court that it now accepts that s  38(4) of the AIA applies to the board’s referral to QCAT, as a result of the election of a valuer under s 52(2)(c)(iii) that the board refer the matter to QCAT.  That is an appropriate concession.  As noted by the respondent, that concession means the board accepts that neither the Act nor the QCAT Act contains any contrary intention that would displace s 38(4) of the AIA applying the time frame for the making of the referral.
  3. [31]
    The respondent submits that, as a result of his request for referral of the matter to QCAT in response to the notice given by the board under s 52(1) of the Act, there was no absolute duty on the board to refer the matter to QCAT, as the board may wish to reconsider its decision in light of the respondent’s request for referral to QCAT.  The respondent relies on s 24AA of the AIA.  Under that provision, if an Act authorises the making of a decision, the power includes the power to amend or repeal the decision.
  4. [32]
    The respondent submits that the respondent’s request for referral to QCAT amounts to a new circumstance and reconsideration by the board should follow that request, particularly where a step in the board’s decision of which notice had been given to the respondent under s 52(1) of the Act was that the board did not consider the matter warranted referral to QCAT.
  5. [33]
    During the hearing a number of scenarios were canvassed which the respondent suggests may lead the board to reconsider its decision upon the making of a request for a referral to QCAT pursuant to s 52(2)(c)(iii), including that the board may be aware that one of its witnesses is “fragile” and the witness may not be willing or able to give evidence in a QCAT hearing, the board does not consider the respondent’s conduct is of sufficient seriousness to warrant the additional expense to the board of a QCAT referral, or the board does not wish to risk the respondent successfully defending the matter the subject of the referral in QCAT.
  6. [34]
    The board accepts the respondent’s contention that, as a result of the request made by the respondent to refer the matter to QCAT, it was open to the board in reliance on s 24AA of the AIA to reconsider the course of action the board proposed to take in respect of the respondent pursuant to s 50(2) of the Act.
  7. [35]
    I have reached a different conclusion on the effect of the respondent’s request of the board to refer the matter to QCAT to that reached by each of the appeal tribunal Members.  My conclusion is as follows.
  8. [36]
    Upon the request made by the respondent to refer the matter to QCAT, s 52(5) expressly precluded the board from taking action against the respondent under s 51.  There is no express provision in the Act that specifies the process of referral by the board to QCAT, upon the request being made by the respondent pursuant to s 52(2)(c)(iii).  As a matter of construction of the Act, the request must have the effect of requiring the board to act under s 50(2)(a).  There were two aspects to the board’s proposed action against the respondent that was notified to the respondent: the proposed finding of professional misconduct and the proposed disciplinary action.  Upon the respondent’s request for the referral of the matter to QCAT, both aspects of the board’s decision-making would be the subject of the referral and therefore the subject of decision by QCAT in lieu of the board.
  9. [37]
    Upon the respondent requesting referral of the matter to QCAT, there was no obligation on the board to consider whether it exercised the power to amend or repeal the original decision of which notice had been given to the respondent and resulted in the referral request.  Even though the power exists under s 24AA of the AIA for the board to amend or repeal its original decision, it was not bound to consider exercising that power upon receipt from the respondent of the request to refer the matter to QCAT.  When the board was undertaking its decision-making that resulted in the decision of which the respondent was notified under s 52(2), the board may have anticipated the possibility of the respondent’s requesting a referral of the matter to QCAT and decided that, if that did happen, it would proceed directly to make the referral to QCAT.  Some of the matters canvassed during the hearing in this court as possible scenarios prompting the board to reconsider the decision upon receiving the respondent’s request for referral may have been already considered by the board, when making the decision that was notified to the respondent pursuant to s 52(1) of the Act.  At the time of making the original decision, the board could have concluded in favour of dealing with the disciplinary matter itself, but that if the respondent notified the board that he preferred for the matter to be referred to QCAT, then it would do so.  The bare request in this matter by the respondent for referral of the matter to QCAT also meant that there was nothing further by way of representations for the board to consider before referral, apart from the fact that the request was made by the respondent for referral to QCAT.
  10. [38]
    Subject to the decision-making that the board had already undertaken in respect of the matter, it was therefore open to the board upon the respondent’s request to refer the matter to QCAT to:
    1. (i)
      refer the matter to QCAT in accordance with the request;
    2. (ii)
      decide to exercise the power to reconsider the decision to find professional misconduct and take disciplinary action that was notified to the respondent (the original decision) and, in doing so, to affirm the original decision and proceed to refer the matter to QCAT in accordance with the request;
    3. (iii)
      decide to exercise the power to reconsider the original decision and to repeal the original decision and, in doing so, to find that there was no professional misconduct;
    4. (iv)
      decide to exercise the power to reconsider the original decision and, in doing so, to amend the original decision, find that there was professional misconduct and decide pursuant to s 50(2)(b)(ii) of the Act to take no further action; or
    5. (v)
      decide to exercise the power to reconsider the original decision and, in doing so, to amend the original decision, find that there was professional misconduct and decide to take disciplinary action pursuant to s 51(1) of the Act that was different to the original decision (the amended decision) and to give notice of the amended decision to the respondent.
  11. [39]
    Sections 50, 51 and 52 of the Act therefore do not impose a duty on the board to make the referral to QCAT upon receiving the request by a valuer pursuant to s 52(2)(c)(iii), but the board performs a statutory function in dealing with the request and I have endeavoured to outline the possible courses the board may follow.
  12. [40]
    The means by which the referral is made under s 64(1) of the Act which permits a proceeding in court in the name of the board to be instituted by the chairperson, the secretary or a person authorised by the chairperson means the board was not bound to consider the request for the referral before the board made the referral to QCAT, if the referral at that stage was anticipated by, or consistent with, the board’s decision-making that resulted in the original decision.  The reference to “court” in s 64(1) of the Act extends to QCAT which is a court of record pursuant to s 164(1) of the QCAT Act.

What is the effect of s 38(4) of the AIA on the referral by the board to QCAT pursuant to a request under s 52(2)(c)(iii) of the Act?

  1. [41]
    The board’s contention is that it would frustrate the scheme under the Act, if a failure to file the referral “as soon as possible” had the consequence of invalidating the referral.  The statutory context involves many steps on the part of the board, including authorising an investigation of a complaint or an investigation at the board’s initiative pursuant to s 44(1) of the Act, the making of the decision by the board on the completion of the investigation pursuant to s 50(1) and (2) of the Act, and the requirement of the board to give notice of intention to take disciplinary action pursuant to s 52(1) of the Act.  The board submits that these various steps taken by the board are also subject to the obligation under s 38(4) of the AIA and it would not follow, as a matter of statutory construction, that a referral to QCAT would be invalid, because of a failure to comply with s 38(4) of the AIA in respect of any of the steps taken by the board  prior to the referral.  On the basis s 38(4) of the AIA applies to each of the steps, including the referral, it is submitted an egregious delay at any stage causing prejudice to the respondent can be relied on by the respondent to challenge the continuance of the proceeding, but compliance with s 38(4) of the AIA in respect of any of the prior steps to the referral or the making of the referral is not a pre-condition to the exercise of the power to make the referral to QCAT.  A failure to comply with s 38(4) in respect of any of the prior steps or the making of the referral to QCAT could be a matter raised in the Tribunal to strike out the referral as an abuse of process, but does not deprive the Tribunal of jurisdiction to consider the referral.
  2. [42]
    The respondent submits that the time frame imposed by s 38(4) of the AIA is imperative and, unless the Tribunal grants an extension of time to the board to make the referral, the Tribunal has no jurisdiction to deal with the referral that was not made as soon as possible by the board.  The respondent does concede that the Tribunal’s lack of jurisdiction to deal with a referral that was not made as soon as possible by the board was subject to the board making a successful application to extend the period for making the referral.  The respondent treats the time frame under s 38(4) of the AIA as the period provided for under the Act for the making of the referral for the purpose of s 34(2)(a) of the QCAT Act, so that if the referral is not made as soon as possible, the Tribunal does not have jurisdiction to deal with the referral, unless the Tribunal grants an extension for the referral to be made.  It is implicit in the submissions of the respondent that the time for making the referral “as soon as possible” was calculated by reference to the respondent’s request for the referral to be made.
  3. [43]
    Both parties referred to authorities that have considered the application of s 38(4) of the AIA or an equivalent provision.
  4. [44]
    Vu was concerned with the exercise by the Registrar of Motor Vehicles under the Motor Vehicles Act 1959 (SA) of the power to issue disqualification notices for two motorists as a result of the commission of specified offences or the accumulation of a prescribed number of demerit points.  Both respondents were liable to statutory disqualifications, but the Registrar did not attempt to activate the disqualifications by notifying the respondents until about two years after that liability accrued.  The respondents were successful in obtaining declarations in the Supreme Court that, as a result of the delay, the issued notices were invalid.  The cause of the delay was a breakdown in electronic communications of information between the Courts Administration Authority, the Commissioner of Police and the Registrar.  The equivalent provision to s 38(4) of the AIA required the Registrar to comply with an obligation to act “with all convenient speed”.  Kourakis CJ (with whom Anderson and Stanley JJ agreed) observed at [19]:

“The expression ‘with all convenient speed’ is intractably indeterminate and incapable of precision. I doubt that the legislature intended that the phrase ‘at all convenient speed’ in s 27(3) of the Acts Interpretation Act should be transmuted, by judicial fiat, into a finite period of time in which each statutory duty to which it applied should be performed irrespective of the circumstances of each particular case. Section 27(3) of the Acts Interpretation Act does not, in effect, delegate to the judiciary a legislative or administrative power to fix universally applicable time limits of fixed duration in which statutory duties must be performed. The most obvious reason for not prescribing a fixed period in which to perform a statutory duty, but instead subjecting office holders to the general obligation to act with all convenient speed is that the legislature recognised the desirability of allowing a flexible period to take into account varying circumstances. It is a term which is apt for measuring political or administrative responsibility even though, in a clear case, it may also found a judicial declaration that an officer has failed to act with all convenient speed if a decretal order is necessary to secure the performance of the officer’s statutory duty.”

  1. [45]
    Kourakis CJ applied Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [91] to the task of considering whether the effect of non-compliance with issuing the notices with all convenient speed resulted in their invalidity.  Kourakis CJ noted at [26] that:

“The expedition obligation is sourced in the Acts Interpretation Act, a general enactment, and is an obligation of a very different nature to the notice requirement.”

  1. [46]
    Kourakis CJ did not find the indications of invalidity to be particularly strong and concluded at [36] that holding void any notice which was not given with all convenient speed “would substantially frustrate the legislative purpose of the scheme” and “undermine its administrative efficacy and substantially compromise the public interest”.
  2. [47]
    Conset concerned the application of the forerunner provision to s 38(4) of the AIA which used the language that the relevant thing must be done “with all convenient speed”.  Section 108 of the Building Units and Group Titles Act 1980 (Qld) provided that an appeal on a certain ground was to be brought in the Supreme Court from an order made by a tribunal under s 107 of that Act, but did not prescribe the time for institution of the appeal.  The application under s 108 was filed more than eight months after the order was made by the tribunal.  The subject matter of the appeal was an order that had been made by the referee on the application of the relevant body corporate against Conset to remove an aluminium glass structure installed on the balcony of the unit owned by Conset that had been in place for seven years.  Conset’s appeal against the referee’s order to the tribunal had been dismissed.  Ryan J acknowledged (at 246) that no prejudice was suggested by the body corporate as a result of Conset’s delay in instituting the appeal, but concluded that the appeal had not been instituted with all convenient speed and no explanation was given for “a very tardy application” and therefore the appeal was held to be incompetent.
  3. [48]
    The forerunner provision to s 38(4) of the AIA was considered in Ex parte Austco Pty Ltd [1985] 2 Qd R 1 where the Subcontractors’ Charges Act 1974 (Qld) provided for the time period within which a notice of claim of charge had to be given by the subcontractor to the employer or superior contractor, but where that Act was silent in relation to the time period within which the notice of claim of charge was given to the contractor.  Both notices had to be given for the charge under that Act to attach.  It was held by Thomas J (as his Honour then was) at 5 that the charge failed to attach as the notice of having made the claim was not given to the contractor “with all convenient speed”.
  4. [49]
    Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd (2019) 2 QR 190 concerned s 21(5) of the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) (which has since been repealed) that provided that a copy of an adjudication application must be served on the respondent, but did not specify the time period for service.  The appellant lodged separate adjudication applications, but omitted to deliver the adjudication applications when delivering the documents in support of the adjudication applications to the respondent.  The adjudicator concluded that he was not seized of jurisdiction, because the adjudication applications were not served on the respondent “as soon as possible”, on the basis that s 38(4) of the AIA applied to the service.  The primary judge found that was the position both as to the application of s 38(4) of the AIA and the adjudicator’s lack of jurisdiction.  On the appeal to this court in Niclin, Applegarth J (with whom Gotterson and Philippides JJA agreed) noted (at [27]-[28]) that BCIPA contained a number of time limits many of which were expressed in terms of days and that a party that wished to engage in the adjudication process was expected to meet the abbreviated time frames and arrange its affairs to meet those requirements.  As a matter of construction, Applegarth J considered (at [30]) that a requirement to serve the adjudication application “as soon as possible” imposed a demanding time frame, but one which had regard to relevant circumstances, and (at [31] and [35]) that a requirement to serve the adjudication applications as soon as possible was more consistent with the purpose of BCIPA in ensuring the expeditious resolution of a dispute than a construction of s 21(5) which would allow a claimant to take as long as it chose to serve the adjudication application upon a respondent.  Applegarth J described (at [34]) the effect of s 38(4) of the AIA:

“The application of s 38(4) AIA creates a strict time for service, which still allows the exigencies of service confronting a claimant in the circumstances of a particular case to be considered”.

  1. [50]
    The requirement in s 38(4) of the AIA is a general requirement that applies to the doing of an act under many different statutes and therefore in many different circumstances.  Section 38(4) of the AIA does not itself deal with the consequence of non-compliance.  It is a matter for construction of the legislation that regulates the doing of the act to which s 38(4) of the AIA applies to ascertain the consequence for the non-compliance with the requirement for the act to be done “as soon as possible”:  Project Blue Sky at [91].
  2. [51]
    McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (at [93]) favoured as the test for determining the issue of validity of an act done in breach of a statutory condition of asking “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” and that, in determining the question of purpose, “regard must be had to the ‘the language of the relevant provision and the scope and object of the whole statute’”.
  3. [52]
    The decisions in Austco and Niclin are explicable by the exigencies of the particular legislation under consideration in those cases.  It is also relevant that the service that was required in each case of documents “as soon as possible” concerned the regulation of statutory rights between parties that were in addition to the contractual rights of the party seeking to take advantage of the beneficial protections afforded by the schemes for facilitating payment respectively under the Subcontractor’s Charges Act and BCIPA.
  4. [53]
    The respondent submits that the context of Conset is closer to the facts of the referral by the board to QCAT, as it concerned the timing of the commencement of a curial process, rather than the issuing of administrative notice as in Vu.  The respondent argues that it is in his interests for the referral to QCAT to be made as soon as possible upon his request that be done, so the issue of the outstanding complaint against him and the uncertainty that causes him professionally can be disposed of expeditiously.
  5. [54]
    Although the same policy considerations that applied in Vu do not apply to the referral by the board to QCAT of a matter after a valuer in the respondent’s position has made a request for that to be done, the purpose of the disciplinary provisions in the Act are relevant to the issue of construction of the Act of whether failure to comply with s 38(4) of the AIA results in lack of jurisdiction for the Tribunal to entertain the referral.  The board may not be duty bound to make the referral to QCAT upon the request being made by a valuer in the respondent’s position, but in making the referral the board is exercising the statutory function concerned with regulating the professional conduct of valuers which ultimately is exercised for the public benefit.
  6. [55]
    The board’s point that s 38(4) of the AIA applies to a number of the steps that the board undertakes in the disciplinary process means it would be an odd result, if it were only the last step of the referral to QCAT at the request of a valuer in the respondent’s position that resulted in invalidity of the referral, if the referral were not done as soon as possible after the request made of the board to do so.  It is also relevant that the scheme for discipline of valuers under the Act provides for the referral to QCAT which operates under the QCAT Act that has comprehensive provisions for addressing any disadvantage to one party caused by the delay of another party in connection with the proceeding before QCAT.  The ultimate construction contended for by the respondent is incongruous, as the concession that there was no invalidity until the board had failed to gain an extension of time from QCAT, where the referral by the board to QCAT had not been made as soon as possible, is a recognition that the referral itself is not invalid for failure to comply with s 38(4) of the AIA without more.
  7. [56]
    It was not in issue before the appeal tribunal that s 61(1)(a) of the QCAT Act applied to permit the Tribunal to extend the time limit for the referral by the board to QCAT.  Section 61(1)(a) empowers the Tribunal to “extend the time limit fixed for the start of a proceeding by this Act or an enabling Act”.  The time frame provided by s 38(4) of the AIA applies where there is no time fixed for the doing of an act.  It is not a time limit fixed by the QCAT Act or the Act.  It is therefore arguable that s 61(1)(a) cannot be relied on to extend the time under s 38(4) of the AIA for the making of the referral to QCAT.  In order to dispose of the grounds of appeal, it is not necessary to express a concluded view on this aspect.
  8. [57]
    The better analysis of the scheme under the Act for referral to QCAT in connection with the disciplinary process is that a breach of s 38(4) of the AIA does not invalidate the referral, but is a relevant matter on which the respondent can rely, if prejudiced by the delay in the referral or any aspect of delay in the disciplinary process before the matter is referred by the board to QCAT.  The concern of the respondent for delays in the disciplinary process affecting his professional standing can be dealt with by QCAT that regulates its processes, including by striking out a proceeding pursuant to s 47(1) of the QCAT Act that is an abuse of process or pursuant to s 48(2)(a) of the QCAT Act on the basis that the board is acting in a way that unnecessarily disadvantages the respondent.
  9. [58]
    The right of appeal in Conset was an exercise of a private right conferred on Conset to challenge the order concerning the removal of the structure installed by Conset.  The decision can therefore be distinguished on the basis that the referral by the board of the respondent’s matter to QCAT was an exercise of a statutory function in connection with a disciplinary process.  Although Conset was concerned with the exercise of an entitlement to appeal that was found not to be implemented “with all convenient speed” as the forerunner provision to s 38(4) of the AIA then required, I would not follow Conset to the extent that it is authority for striking out the appeal as incompetent merely because it was instituted without all convenient speed, without consideration of whether prejudice was caused to the respondent to the appeal, as a result of the non-compliance with the requirement under the equivalent to s 38(4) of the AIA.

Orders

  1. [59]
    The board has succeeded in showing that the proceeding against the respondent commenced in QCAT by the board’s referral should not have been dismissed by the Tribunal on the basis that it was invalid without an extension of time being granted by QCAT for the commencement of the proceeding.  The orders sought by the board on this appeal will have the effect that the proceeding commenced by the referral in QCAT remains extant.  It will then be a matter for the respondent to consider whether it wishes to pursue an application under either s 47 or s 48 of the QCAT Act.  At the hearing of the application in this court, it was common ground that costs should follow the event.
  2. [60]
    The orders therefore should be:
  1. Leave to appeal against order 2 of the appeal tribunal made on 18 September 2020 granted.
  2. Appeal allowed.
  3. Order 2 of the appeal tribunal made on 18 September 2020 is set aside and, in lieu, it is ordered:
  1. (a)
    Appeal to the appeal tribunal is allowed;
  1. (b)
    The order of the Tribunal at first instance made on 25 February 2019 dismissing the applicant’s referral to the Tribunal is set aside and, in lieu, the application of the respondent filed on 12 October 2018 in the Tribunal is dismissed.
  1. The respondent must pay the applicant’s costs of the application for leave to appeal and the appeal.
  1. [61]
    BRADLEY J:  I agree with the order proposed by Mullins JA and with her Honour’s reasons.
Close

Editorial Notes

  • Published Case Name:

    Valuers Registration Board of Queensland v Murphy

  • Shortened Case Name:

    Valuers Registration Board of Queensland v Murphy

  • MNC:

    [2021] QCA 159

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Mullins JA, Bradley J

  • Date:

    06 Aug 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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