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Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General[2021] QCA 30

Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General[2021] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30

PARTIES:

VENETIA LOUISE STORRY

(applicant)

v

CHIEF EXECUTIVE OF THE OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

FILE NO/S:

Appeal No 8237 of 2020

SC No 6586 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review

ORIGINATING COURT:

Supreme Court of Queensland – Unreported, 15 July 2020 (Boddice J)

DELIVERED ON:

2 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2020

JUDGES:

Philippides and Mullins JJA and Williams J

ORDERS:

  1. The application for leave to appeal is refused.
  2. In respect of the other relief sought by the applicant in the application filed 30 July 2020, the application is refused.
  3. The applicant pay the respondent’s costs of the application on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – APPLICATIONS – where the applicant applied for a statutory order of review pursuant to s 48 of the Judicial Review Act 1991 (Qld) – where the trial judge dismissed the application because it was out of time and an abuse of Court processes – where the applicant seeks leave to appeal the trial judge’s decision – where the applicant submits that the trial judge erred by failing to consider s 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the reasonable prospects of success – whether leave should be granted

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EVIDENCE – where the applicant seeks an order that the Court consider further ‘fresh evidence’ – whether the Court should allow that evidence to be relied upon by the applicant

Agents Financial Administration Act 2014 (Qld), s 47, s 61(7), s 62

Judicial Review Act 1991 (Qld), s 26, s 48

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52

Aurukun Bauxite Development Pty Ltd & Anor v State of Qld (2016) 222 LGERA 107; [2016] QSC 263, considered

Bowyer v de Jersey [2017] QSC 340, considered

Chibanda v Chief Executive, Queensland Health & Anor [2018] QSC 128, considered

Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369; [1993] QSC 170, considered

Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, considered

COUNSEL:

The applicant appeared on her own behalf

R H Berry for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Crown Law for the respondent

  1. [1]
    PHILIPPIDES JA:  I have read the reasons of Williams J and agree with those reasons and the orders her Honour proposes.
  2. [2]
    MULLINS JA:  I agree with Williams J.
  3. [3]
    WILLIAMS J:  This is an application for leave to appeal from a decision dismissing the applicant’s application for judicial review under s 48 of the Judicial Review Act 1991 (Qld) (Judicial Review Act).  Pursuant to s 48(5) of the Judicial Review Act, an appeal may be brought from an order under that section only with the leave of the Court of Appeal.  The applicant’s application seeking leave and other relief was filed on 30 July 2020 together with a notice of appeal also filed on 30 July 2020.
  4. [4]
    By an application filed on 18 June 2020, the applicant sought a statutory order of review pursuant to the Judicial Review Act with respect to three decisions:
    1. (a)
      The respondent’s decision of 12 October 2018 to appoint a receiver over the trust account of Anthony Storry Real Estate (Decision 3);
    2. (b)
      The respondent’s decision of 13 December 2018 to appoint a receiver over the trust account of Storry Real Estate Pty Ltd (Decision 2); and
    3. (c)
      The respondent’s purported decision of 23 May 2019 to move funds from the Anthony Storry Real Estate Trust Account to the claims fund (established by s 78 of the Agents Financial Administration Act 2014 (Qld) (Agents Financial Administration Act)) (Decision 1).
  5. [5]
    On 24 June 2020, the respondent filed an application seeking dismissal of the applicant’s application pursuant to s 48 of the Judicial Review Act.
  6. [6]
    On 15 July 2020, Boddice J heard the respondent’s application and ordered that the applicant’s application for a statutory order of review filed on 18 June 2020 be dismissed and that the applicant pay the respondent’s costs of the application, to be assessed on the standard basis.

Background

  1. [7]
    The Anthony Storry Real Estate business was originally operated by the applicant’s father, John Anthony Storry, as licensee.  Mr Storry became severely ill in 2016 and the applicant took over control of the business.[1]
  2. [8]
    Further, the applicant is the director and principal licensee of Storry Real Estate Pty Ltd, which took over the business operations of Anthony Storry Real Estate.[2]

Anthony Storry Real Estate – Decision 3

  1. [9]
    Anthony Storry Real Estate operated a trust account.[3]  On 31 July 2018, an audit report for the year ending 31 December 2017 was provided by Dallas Beauchamp to the Office of Fair Trading.[4]
  2. [10]
    In providing the audit report, Mr Beauchamp advised that the trust account for the business had not been properly kept in accordance with the Agents Financial Administration Act.  Mr Beauchamp identified a number of issues including cheques that had been omitted from the closing bank reconciliation during the 2016 audit period and a corresponding shortfall that had not been previously reported to the regulator, an amount drawn from the trust account in excess of what the agent was entitled to in the period and, as at 31 December 2017, a trust account shortfall.[5]
  3. [11]
    On 10 September 2018, the Office of Fair Trading provided the applicant a show cause letter and an opportunity to provide submissions in relation to the respondent’s intention to appoint a receiver over the Anthony Storry Real Estate Trust Account and invited the applicant to consent to the receiver’s appointment or advise why a receiver should not be appointed.[6]
  4. [12]
    On 2 October 2018, the applicant responded to the show cause letter via email and provided a reconciliation spreadsheet suggesting a continued shortfall in funds.[7]
  5. [13]
    On 10 October 2018, the respondent appointed the receiver over the Anthony Storry Real Estate Trust Account in accordance with s 47(1) of the Agents Financial Administration Act.  This was based upon recommendations and information prepared by the Office of Fair Trading, including Mr Steve Browne.[8]
  6. [14]
    On 12 October 2018, the Office of Fair Trading sent a copy of the Notice of Appointment of Receiver to the applicant.[9]
  7. [15]
    On 21 May 2019, the respondent ended the receivership over the Anthony Storry Real Estate Trust Property and advised the applicant.[10]

Storry Real Estate – Decision 2

  1. [16]
    Storry Real Estate operates a trust account.[11] On 8 November 2018, the Office of Fair Trading provided the applicant a show cause letter.[12]
  2. [17]
    An opportunity was provided to the applicant to provide submissions in relation to the respondent’s intention to appoint a receiver over the Storry Real Estate Trust Account on the basis that it was recommended in a memorandum prepared by the Office of Fair Trading, including Mr Steve Browne.  Further, the applicant was invited to consent to the appointment of a receiver or advise why a receiver should not be appointed.[13]
  3. [18]
    On 13 December 2018, the respondent appointed a receiver over the Storry Real Estate Trust Account.[14]
  4. [19]
    On 14 December 2018, the Office of Fair Trading sent a copy of the Notice of Appointment of a Receiver to the applicant.[15]
  5. [20]
    On 21 May 2019, the respondent ended the receivership over the Storry Real Estate Trust Property and advised the applicant.[16]

Transfer of funds to claims fund – Decision 1

  1. [21]
    On 15 May 2019, the receiver appointed over the Anthony Storry Real Estate Trust Account and Storry Real Estate Trust Account provided a final claims report to the Office of Fair Trading under s 61(7) of the Agents Financial Administration Act identifying that there were insufficient funds to pay all allowed claims, resulting in a shortfall in the Anthony Storry Real Estate Trust Account.[17]
  2. [22]
    On 16 May 2019, the Office of Fair Trading provided the account details to the receiver to enable the electronic transfer of the receivership property to be paid to the claims fund under ss 62(3) and (4) of the Agents Financial Administration Act.[18]
  3. [23]
    On 23 May 2019, the receiver transferred the sum of $48,499.41 from the Anthony Storry Real Estate Trust Account to the Chief Executive.[19]
  4. [24]
    On 29 May 2019, the Office of Fair Trading decided 17 separate claims against the fund and notified the applicant of the claims.  This decision followed consideration of the applicant’s requests to review the validity of various claims.[20]
  5. [25]
    On 5 June 2019, the applicant requested a statement of reasons in relation to each decision of the Office of Fair Trading regarding the claims and these were provided on or about 19 June 2019.[21]
  6. [26]
    On 28 June 2019, the applicant filed 11 separate applications for review in the Queensland Civil and Administrative Tribunal (QCAT) in relation to the claims that had not settled.[22]  There are nine active claims in QCAT that are currently progressing.[23]

History of proceedings

  1. [27]
    From October 2018, the applicant has commenced various proceedings in the Supreme Court of Queensland,[24] the Court of Appeal,[25] the QCAT, the District Court of Queensland[26] and the Magistrates Court of Queensland.[27]
  2. [28]
    Attachment A to these reasons contains an extract from the chronology prepared by the respondent which sets out the date and description of the various proceedings and decisions.

Applicant’s application for a statutory order of review

  1. [29]
    The applicant’s application for a statutory order of review filed on 18 June 2020 sought a review of the three decisions identified above.
  2. [30]
    The grounds relied upon in relation to the application are various and include breach of natural justice, error of law, procedures required by law not observed, decision not authorised by the enactment, failure to take into account relevant considerations, improper exercise of power, taking an irrelevant consideration into account, the decision was induced or affected by fraud, no evidence or other material to justify making a decision, exercise of a discretionary power in bad faith, exercise of a personal discretionary power at the direction or behest of another person, exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case and an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
  3. [31]
    The application also sets out particulars of the fraud or bad faith alleged as including breach of procedures and providing misleading directions, misleading information and false information sent to clients, failure of the receiver to access both accounts and not balancing or allocating from both accounts, executive delegates not suitably qualified in property law to make decisions, receiver not suitably qualified to make decisions, falsifying legal situation to a Magistrate to acquire a warrant, providing false information to QCAT, providing false information in an affidavit and false information easily discovered to be false to maintain the receiver’s appointment against an interlocutory injunction and using amounts frozen in trust to say the applicant underpaid clients and QCAT.
  4. [32]
    The applicant’s application claimed the following relief:

“1. seeks an order in the nature of setting aside the decision of the transfer of the trust balance to the claims fund for both trust accounts.

  1. seeks an order of consideration of the true balances of the trust that the OFT failed to perform.
  1. seeks an order that the balances are prohibited to be paid from the claims fund and returned to the Trust account of the agency for disbursement to the clients pending a forensic audit report on disputed claim amounts.
  1. seeks an order that the appointment of the receiver and her findings and the false information provided to the court and the Disciplinary action be removed.
  1. seeks an order that the receiver pay damages for providing false and misleading information to QCAT and the clients of the agency and the Supreme Court.
  1. All false and misleading information be removed and rectified in every government report in relation to the agency.
  1. Any further order that court considers appropriate to the matter.
  1. Any costs be paid by the respondent in relation to the application and bringing the matters to court.”

Respondent’s application for dismissal

  1. [33]
    The respondent’s application dated 24 June 2020 sought the following orders:

“1. Pursuant to s 48 of the Judicial Review Act 1991 (Qld), the application for a statutory order of review be dismissed on the following grounds:

  1. (a)
    it would be inappropriate–
  1. (i)
    for proceedings in relation to the application or claim to be continued; or
  1. (ii)
    to grant the application or claim.
  1. (b)
    No reasonable basis for the application is disclosed.
  1. (c)
    The application is frivolous and vexatious.
  1. (d)
    The application or claim is an abuse of the process of the court.”
  1. [34]
    The relief sought in paragraphs (a) to (d) reflects the wording of s 48(1) of the Judicial Review Act which states as follows:

Power of the court to stay or dismiss applications in certain circumstances

  1. (1)
    The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that—
  1. (a)
    it would be inappropriate—
  1. (i)
    for proceedings in relation to the application or claim to be continued; or
  1. (ii)
    to grant the application or claim; or
  1. (b)
    no reasonable basis for the application or claim is disclosed; or
  1. (c)
    the application or claim is frivolous or vexatious; or
  1. (d)
    the application or claim is an abuse of the process of the court.”
  1. [35]
    Section 48 continues:

“(2) A power of the court under this section—

  1. (a)
    must be exercised by order; and
  1. (b)
    may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.
  1. (3)
    The court may make an order under this section—
  1. (a)
    of its own motion; or
  1. (b)
    on an application by a party to the proceeding.
  1. (4)
    The court may receive evidence on the hearing of an application for an order under this section.
  1. (5)
    An appeal may be brought from an order under this section only with the leave of the Court of Appeal.”
  1. [36]
    The respondent’s application was heard on 15 July 2020.  The respondent relied on written submissions and supporting affidavit material outlining the history of the matter and relevant background facts.
  2. [37]
    There were also two affidavits from the applicant before the Court.  The second affidavit of the applicant sworn on 13 July 2020 includes submissions on the background and legal framework (including some of the authorities) as well as submissions dealing with an extension of time.  The submissions in relation to the extension of time also address the respondent’s application for dismissal of the application for a statutory order of review.  Ultimately, the applicant sought orders that the application for review not be dismissed and the application be listed for hearing.
  3. [38]
    At the hearing at first instance, the respondent’s submissions in support of the application for dismissal can be summarised as follows:
    1. (a)
      In relation to Decision 3:
      1. It was a decision capable of judicial review.
      2. The application ought to be dismissed in relation to Decision 3 for the following reasons:
      1. The applicant sought to reagitate the review of the same decision that was the subject of the judicial review application in Supreme Court proceeding No. 11376 of 2018 and Court of Appeal proceeding No. 11607 of 2018.  Both proceedings were discontinued by the applicant on 5 February 2019, over a year before.
      2. In any event, the review application was significantly out of time.  It was at least 1.5 years after the time for review had expired.  No reasonable explanation for the delay has been provided by the applicant.  Further, there would be significant prejudice to the respondent if the review application was allowed to continue following the significant delay and in particular where the respondent has spent significant time and resources in undertaking the receivership and ending the receivership.
      3. The applicant did not have a strong case for review.  The respondent relied on s 47 of the Agents Financial Administration Act and the circumstances justifying the appointment of a receiver on the basis that the respondent’s belief that there was some defalcation of trust funds was based on reasonable grounds and the process in s 47(1)(b)(i) of the Agents Financial Administration Act was complied with.
      4. There was no utility in proceeding with the application to review Decision 3 as the receivership ended on 21 May 2019.  Any remaining claims in relation to the shortfall are being dealt with in the QCAT claims.
      1. In these circumstances, the respondent submitted that the application for a statutory order of review in relation to Decision 3 ought to be dismissed as it was inappropriate to be continued, an abuse of process, vexatious and frivolous due to the applicant relitigating the review and also the delay.
    2. (b)
      In relation to Decision 2:
      1. It was a decision capable of judicial review.
      2. The application ought to be dismissed in relation to Decision 2 for the following reasons:
      1. The applicant previously sought injunctions in relation to Decision 2 in Supreme Court proceeding No. BS-14114 of 2018 and District Court proceeding No. BD-943 of 2019 and judicial review of Decision 2 in Magistrates Court proceeding No. M3203 of 2019.  All of these proceedings were dismissed in 2019.
      2. The applicant delayed in bringing this application with the period to bring a review of Decision 2 expiring approximately 1.5 years ago.  There was no explanation for the lengthy delay.  Further, the respondent would suffer prejudice if the application was allowed to continue as the respondent spent significant time and resources in undertaking the receivership and ending the receivership.
      3. The applicant did not have a strong case for review.  The respondent relied upon the appointment of a receiver pursuant to s 47 of the Agents Financial Administration Act.  The respondent relied upon the reasonable grounds for the respondent’s belief that there was some defalcation of trust funds and also the process in s 47(1)(b)(i) of the Agents Financial Administration Act had been complied with.
      4. There was no utility in the application in relation to Decision 2 being heard, as the receivership ended on 21 May 2019.
      1. In these circumstances, the respondent submitted that the application for a statutory order of review in relation to Decision 2 was inappropriate to be continued, an abuse of process and frivolous and vexatious.
    3. (c)
      In relation to Decision 1:
      1. It was not a decision that could be judicially reviewed.
      1. The respondent contended that there was no decision made under an enactment to transfer the money from the Anthony Storry Real Estate Trust Account to the fund which was undertaken pursuant to ss 62(3) and (4) of the Agents Financial Administration Act.  Pursuant to that section, following the end of the receivership and a finding that the trust property was insufficient to pay all allowed claims, the receiver paid the amount left in the trust account to the Chief Executive.
      2. There was no decision made by the respondent that caused the receiver to pay the amount.
      1. The application ought to be dismissed in relation to Decision 1 for the following reasons:
      1. In any event, the application for review was outside the time period as the period to review Decision 1 expired approximately a year ago.  Further, there was no explanation for the delay and the applicant had poor prospects of success as the receiver’s final report identified a shortfall in the trust account which required those trust monies to be transferred to the fund under s 62 of the Agents Financial Administration Act.
      2. Further, on 28 June 2019 the applicant applied to review 11 claims in QCAT.  In light of this, the respondent submitted that there was no utility in reviewing the decision as the receivership had ended and the trust monies were now being dealt with by the Office of Fair Trading and the applicant was exercising her merits review rights in QCAT.
      1. In the circumstances, the respondent submitted that the application for a statutory order of review of Decision 1 should be dismissed as it was inappropriate to grant the application and there was no reasonable basis for the application.
  4. [39]
    The applicant’s submissions[28] were largely directed at the substantial issues in respect of the application for a statutory order of review rather than addressing the issues identified by the respondent in respect of the application to dismiss the application.
  5. [40]
    The submissions in respect of the extension of time[29] also included submissions that went to relief beyond what could be obtained in an application for judicial review.

Decision at first instance

  1. [41]
    On 15 July 2020, following brief oral submissions for the parties, Boddice J gave ex tempore reasons for his decision.
  2. [42]
    In relation to Decision 3, his Honour concluded:

“Over 12 months later the applicant attempts to resurrect an application for statutory order of review in relation to that decision. Having regard to the circumstances I am satisfied it would be an abuse of process to allow the applicant to bring an application for statutory order of review in relation to decision 3. The applicant was aware of her rights. She exercised her rights. She chose to discontinue those proceedings.  It would be unfair and an abuse of process to allow the applicant to seek to again review that decision.”

  1. [43]
    Accordingly, his Honour ordered that the application for statutory order of review in relation to Decision 3 be dismissed.
  2. [44]
    In respect of Decision 2, his Honour concluded:

“… also was the subject of prompt legal steps by the applicant. The applicant pursued her rights in respect of that matter unsuccessfully.

The receivership has now ended and has been completed for over 12 months.

There is no satisfactory explanation as to why the applicant, some 12 months later, is seeking to apply for a statutory order of review in relation to that decision.

Having regard to those circumstances it is appropriate to order that the application for statutory order of review in respect of decision 2 also be dismissed. It would be an abuse of process to allow that application to proceed having regard to all of the circumstances.”

  1. [45]
    In relation to Decision 1, his Honour indicated that he was not satisfied that it was appropriate to determine, on a summary basis, that the decision was not made under an enactment.  His Honour concluded that it was at least arguable that it was a decision made under an enactment for the purposes of the respondent’s application.
  2. [46]
    His Honour’s reasons also referred to the proceedings in QCAT in relation to the various claims.  His Honour noted that the applicant’s concern was not in relation to each of the individual claims but was in relation to the alleged failure to comply with the requirements of the Agents Financial Administration Act in making the decision to transfer the funds.  His Honour also noted the respondent’s contention that there was no satisfactory explanation for the delay of approximately one year in bringing the application for review and further, that the applicant had exercised her rights in relation to reviewing the claims themselves and in those circumstances, there was no proper basis to allow a statutory order of review of the initial decision when there can be a merits review undertaken by another body.
  3. [47]
    His Honour concluded:

“Whilst I accept the applicant’s contention that the application for statutory order of review is dealing with a different issue, the fact remains that some 12 months passed before the applicant sought to exercise a challenge to the decision made by the respondent in respect of decision 1. In the interim the applicant has been pursuing rights which will result in a merits review of the actual claims themselves.

Having considered the material I am satisfied it would be, in those circumstances, an abuse of the process of this Court to allow the applicant to seek so late in the process to undertake a statutory order of review in relation to what is claimed to be decision 1. There is in the circumstances no reasonable basis for the application to proceed when the applicant has a merits review option which she has exercised in relation to each of the claims.

Accordingly, I am satisfied it is appropriate to dismiss the application for statutory order of review in respect of decision 1.”

  1. [48]
    On the basis of each of these findings his Honour ordered that the application for a statutory order of review filed on 18 June 2020 be dismissed.

Grounds of Appeal

  1. [49]
    The applicant’s Notice of Appeal seeks to appeal the order dismissing the application for a statutory order of review filed on 18 June 2020 and the order that the applicant pay the respondent’s costs of the application.
  2. [50]
    It also purports to seek to appeal the following:

“The orders of earlier hearings for dismissal containing the same supporting misleading information – (BS 11376/18, BS 11607/18 and BD 943/19) based on fresh evidence.”

  1. [51]
    The part of the appeal in relation to the earlier dismissals has not been properly brought and must fail.
  2. [52]
    In relation to the appeal against the orders of Boddice J, two grounds of appeal are identified:
    1. (a)
      Failure to consider “QCAT Act 2009, part 5, Division 3 (52)(2)(a) and (4)(a)” when stating that the application should be dismissed as it was out of time and an abuse of Court processes.
    2. (b)
      Failure to consider that other requirement of the application that relies on the reasonable prospects of success.
  3. [53]
    In order to be successful on the appeal, the applicant must show an error in the decision of the judge at first instance.

Consideration

The applicant argues that the primary judge erred by failing to consider s 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).  Section 52 states:

“(1) If the tribunal considers the subject matter of a proceeding or a part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity, the tribunal may, by order, transfer the matter to which the proceeding or part relates to the other tribunal, the court or the other entity.

  1. (2)
    If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to—
  1. (a)
    a court of competent jurisdiction; or
  1. (b)
    another tribunal or entity having jurisdiction to deal with the matter or matters.
  1. (3)
    The tribunal may make an order under subsection (2)(a) even though the proceeding has previously been transferred from a court to the tribunal under section 53.
  1. (4)
    If the tribunal transfers a matter to another tribunal, a court or another entity (the relevant entity) under this section—
  1. (a)
    a proceeding for the matter is taken to have been started before the relevant entity when it was started before the tribunal; and
  1. (b)
    the tribunal may make the orders or give the directions it considers appropriate to facilitate the transfer, including an order that a party is taken to have complied with the requirements under an Act or other law for starting a proceeding before the relevant entity.
  1. (5)
    An order under subsection (4)(b) has effect despite any other Act or law.
  1. (6)
    The tribunal may act under this section on the application of a party to the proceeding or on its own initiative.
  1. (7)
    The tribunal’s power to act under this section is exercisable only by a legally qualified member.
  1. (8)
    In this section—

proceeding includes a process for the consideration of a matter.”

  1. [54]
    Section 52 operates to provide for the transfer of proceedings from QCAT to the Supreme Court.  There is no power in the Supreme Court judge to order the transfer of proceedings under the section.
  2. [55]
    The reasons do not address s 52 of the QCAT Act.  The primary judge was not required to address s 52 of the QCAT Act and accordingly no error is made out.
  3. [56]
    Section 52 of the QCAT Act is not relevant to the primary judge’s decision in respect of:
    1. (a)
      Decisions 2 and 3, as QCAT does not have jurisdiction and accordingly the decisions are not reviewable by QCAT.
    2. (b)
      Decision 1, as it was not the subject of the QCAT proceedings.
  4. [57]
    The ability to apply to QCAT for a transfer of proceedings from QCAT to the Supreme Court in certain circumstances was not relevant to the considerations relevant to the application for dismissal under s 48 of the Judicial Review Act in this case.
  5. [58]
    This ground of appeal must fail.
  6. [59]
    The second ground of appeal relates to the alleged failure to consider the reasonable prospects of success.  This aspect is expressed in several different ways by the applicant, including:
    1. (a)
      “failed to consider that other requirement of the application that relies on the reasonable prospects of success”[30];
    2. (b)
      “did not consider the other legal test of the application for a Judicial Review, the likelihood of success of the application…”[31];
    3. (c)
      “Justice Boddice considered evidence that he should not have considered and failed to consider evidence that he should have considered in concluding that the Appellant had removed her original application for a Judicial Review and sought connecting decisions from QCAT that would directly impact the outcome of the Judicial Review as a decision made because of lack of success in Interlocutory Injunctions”[32];
    4. (d)
      “erred in not considering the merits of the case for a Judicial review and dismissing the application for the 3 decisions as an abuse of process”[33].
  7. [60]
    The applicant’s submissions in respect of the issue of leave and the appeal focus largely on the substance of the original decisions rather than grounds of judicial review.
  8. [61]
    For example, the applicant’s submissions include:

“124. All 3 of the decisions required a mixture of QCAT and the Supreme Court due to the actions taken by the respondents seizing documents and submitting false information to the court.

  1. There is a whole body of evidence on the damage that the decision appointing a receiver to the business has caused … and in this case, there needed to be a mixture of a merit review in QCAT to unwind the false information.”
  1. [62]
    The relief sought by the applicant appears to go far beyond what is incorporated in judicial review and what this Court can order in respect of an appeal in the context of an application for judicial review.
  2. [63]
    The issue on appeal is whether an error has been demonstrated in the learned primary judge’s decision.  The respondent contends that no error in regard to this second issue has been identified.
  3. [64]
    In this respect the respondent submits:
    1. (a)
      A Court is not necessarily obliged to take into account the strength of an applicant’s case when determining an application for dismissal under s 48 of the Judicial Review Act.  In some circumstances, it may be a relevant consideration but equally in other cases it may not be appropriate or even possible to undertake such an assessment.
    2. (b)
      Under s 48(1) of the Judicial Review Act, in order to exercise the power to stay or dismiss an application it is only necessary for the court to be satisfied of one of the grounds.[34]
  4. [65]
    In support of this submission, the respondent relies on a number of cases, including:
    1. (a)
      Chibanda v Chief Executive, Queensland Health & Anor[35];
    2. (b)
      Aurukun Bauxite Development Pty Ltd & Anor v State of Qld[36];
    3. (c)
      Hoffmann v Queensland Local Government Superannuation Board[37]; and
    4. (d)
      Waratah Coal Pty Ltd v Nicholls & Anor[38].
  5. [66]
    Chibanda concerned an application under s 48(1)(b) of the Judicial Review Act for dismissal on the basis that the application did not disclose a reasonable basis to conclude that the decisions were amenable to judicial review.  At first instance there was no adequate explanation for the delay in seeking judicial review, which was a sufficient reason not to grant an extension of time.  This was upheld on appeal, with no error having been identified in the judgment of Applegarth J.[39]
  6. [67]
    Aurukun concerned an application to dismiss under s 48(1)(a)(i) of the Judicial Review Act on the basis that it was inappropriate for the application to continue due to the delay in bringing the application.  The relevant considerations for the Court were the reasons and explanation for the delay, the prejudice to any person and the strength of the applicant’s case.[40]  In that particular case, Jackson J found that he was “unable to draw any positive conclusion as to the strength of the applicants’ case.”[41]  Whilst the application was dismissed as the application did not engage the relevant provisions of the Judicial Review Act, his Honour concluded that he would have dismissed the application on the ground of delay had it been necessary to do so.[42]
  7. [68]
    Hoffmann concerned an application for an extension of time to file an application for judicial review under s 26 of the Judicial Review Act.  Thomas J identified the relevant principles to be considered in respect of an extension of time as being:
    1. (a)
      A satisfactory explanation for the delay;
    2. (b)
      Notions of what is fair and equitable in the circumstances;
    3. (c)
      Whether any prejudice will be occasioned to the respondent;
    4. (d)
      The public interest; and
    5. (e)
      The merits of the substantial application for review where that is possible.[43] (emphasis added)
  8. [69]
    Waratah concerned an application under s 26 of the Judicial Review Act for an extension of time and also under s 48 for dismissal of the application on the basis of “lack of utility”.  Applegarth J relevantly commented:

“In some cases in which an extension of time is sought within which to commence judicial review proceedings it is not possible to form a view about the applicant’s prospects of success.  Often it is not appropriate in determining an application for an extension of time to embark upon an assessment of the merits.  However, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be relevant to the application for an extension of time.”[44]

  1. [70]
    Here, the respondent submits that his Honour did consider the following:
    1. (a)
      The re-agitation of matters that had previously been the subject of an application for statutory order of review and other legal proceedings.
    2. (b)
      The substantial delay in bringing the review application and the lack of reasonable explanation for the delay.
    3. (c)
      There was no reasonable basis for the application to proceed in light of the merits review proceedings on foot in QCAT.
  2. [71]
    Each of these it is submitted was sufficient to support his Honour’s conclusions.
  3. [72]
    Further, it is submitted that his Honour did take into account the strength of the applicant’s case.  The respondent contends:
    1. (a)
      One of the bases for the application to dismiss was that there was no reasonable basis for the application.
    2. (b)
      The respondent’s submissions at first instance referred to the decision in Bowyer v de Jersey[45] as authority for the relevant test being similar to the test for summary judgment, namely “no real prospect of succeeding”.  This particularly was in respect of Decision 1.[46]
    3. (c)
      Further, at first instance, the respondent submitted that given the “poor prospects” of the applicant’s case and the lack of utility in reviewing the decision, it would be inappropriate to grant the application and no reasonable basis for the application was disclosed.[47]
    4. (d)
      His Honour took those submissions into account, including references to the delay in seeking a review and the pursuance of merits review rights.  Further, reference is made to his Honour’s conclusion in this regard:

“Having considered the material I am satisfied it would be, in those circumstances, an abuse of the process of this Court to allow the applicant to seek so late in the process to undertake a statutory order of review in relation to what is claimed to be decision 1.  There is in the circumstances no reasonable basis for the application to proceed when the applicant has a merits review option which she has exercised in relation to each of the claims.”[48]

  1. (e)
    In respect of Decision 2 and Decision 3, the respondent’s submissions at first instance also address the strength, or lack thereof of the applicant’s case for review.  His Honour refers to the unsuccessful legal proceedings undertaken with respect to both decisions in reaching his conclusion to dismiss the application in respect of those decisions.
  2. (f)
    Not only did his Honour consider that allowing the applicant to bring the application would be an abuse of process, his Honour also took into account the applicant’s lack of success in previous legal proceedings in reaching his conclusion in respect of the prospects of success of the current application.
  3. (g)
    The respondent submits that given that the applicant’s case was not strong, consideration of its prospects could not have greatly assisted the applicant’s case against dismissal.
  1. [73]
    Ultimately the respondent submits that there is no error in his Honour’s decision, particularly given the circumstances as follows:
    1. (a)
      In respect of Decision 3:
      1. The applicant previously brought an application for statutory order of review and related proceedings in both the Supreme Court and the Court of Appeal.
      2. These proceedings were discontinued by the applicant on 5 February 2019, over 18 months ago.
      3. The application for judicial review is significantly out of time, by almost two years.
      4. No reasonable explanation for the delay has been given by the applicant.
      5. The applicant does not have a strong case for review given the process undertaken and the decision made in respect of s 47 of the Agents Financial Administration Act.
      6. There is no utility in the application as the receivership ended on 21 May 2019.
      7. The remaining issues and claims in relation to the shortfall in the trust account are being dealt with in the QCAT proceedings.
    2. (b)
      In respect of Decision 2:
      1. The applicant previously sought injunctions with respect to the decisions in the Supreme Court and the District Court.
      2. The applicant previously brought purported judicial review proceedings in the Magistrates Court.
      3. All of these proceedings were dismissed in 2019.
      4. The application for judicial review is significantly out of time, by almost 18 months.
      5. No reasonable explanation for the delay has been given by the applicant.
      6. The applicant does not have a strong case for review given the process undertaken and the decision made in respect of s 47 of the Agents Financial Administration Act.
      7. There is no utility in the application as the receivership ended on 21 May 2019.
    3. (c)
      In respect of Decision 1 (leaving aside the question of whether it is a reviewable decision):
      1. The application for judicial review is significantly out of time, by almost one year.
      2. No reasonable explanation for the delay has been given by the applicant.
      3. The applicant does not have a strong case for review as:
      1. The evidence establishes that the transfer of the monies was compliant with s 62 of the Agents Financial Administration Act; and
      2. QCAT provides an alternative avenue for review.
      1. There is no utility in a judicial review application as:
      1. the receivership has ended;
      2. the trust money is now being dealt with by the respondent; and
      3. the applicant is exercising her merits review rights in QCAT.
  2. [74]
    This correctly analyses the relevant principles and approach of his Honour in respect of the second ground of appeal.  The second ground of appeal must also fail.
  3. [75]
    The applicant has not established an error in his Honour’s reasoning and the substantive appeal must fail.  In the circumstances, leave to appeal is refused.
  4. [76]
    As the respondent has been wholly successful, the applicant should pay the respondent’s costs on the standard basis.

Application for fresh evidence

  1. [77]
    The applicant also applied to this Court for various orders, including that this Court consider further “fresh” evidence and to conduct what appears to be a full merits review in relation to each of the decisions and the “matters heard prior to the application of a JR”.[49]
  2. [78]
    Leaving aside the question of whether the “fresh” evidence is indeed “fresh” and whether the Court should allow that evidence to be relied upon by the applicant, the wider relief sought in the nature of a full merits review is not properly brought in the judicial review proceeding.  This Court does not have jurisdiction to undertake a review of the nature identified in the applicant’s material.  In the circumstances the applicant’s application is refused.
  3. [79]
    I therefore make the following orders:
    1. (a)
      The application for leave to appeal is refused.
    2. (b)
      In respect of the other relief sought by the applicant in the application filed 30 July 2020, the application is refused.
    3. (c)
      The applicant pay the respondent’s costs of the application on the standard basis.

ATTACHMENT A - CHRONOLOGY

12 October 2018

Respondent’s decision to appoint a receiver over the trust account of Anthony Storry Real Estate (ASRE) (Decision 3)

 

18 October 2018

Application for statutory order of review filed by applicant in Supreme Court (BSl1376/18)

 

22 October 2018

Applicant filed an interlocutory application for an injunction to stay decision 3

 

25 October 2018

Interlocutory application for injunction to stay decision 3 dismissed by Brown J

 

8 November 2018

Applicant filed Court of Appeal proceeding (CAl1607/18) applying for a stay of Brown J’s order

 

14 November 2018

Application for a stay of Brown J’s order dismissed by Martin J

 

13 December 2018

Respondent’s decision to appoint a receiver over the trust account of Storry Real Estate (SRE) (Decision 2)

 

20 December 2018

Applicant filed an originating application in the Supreme Court seeking injunctions in relation to the receiver (BS14114/18)

 

21 December 2018

Application for injunctions against receiver dismissed by Flanagan J

 

21 December 2018

Application filed in QCAT for review of decisions 2 and 3 and other decisions that do not appear to be decisions 1, 2 or 3

Storry v Department of Justice and Attorney-General – Office of Fair Trading [2020] QCAT 94, [24].

5 February 2019

Applicant discontinued the application for statutory order of review (BSl1376/18) and dismissed the appeal (CAl1607/18) by agreement

 

19 March 2019

Applicant filed an originating application in the District Court seeking an injunction against the receiver (BD943/19) in relation to decisions 2 and 3

 

22 March 2019

Originating application for injunction against receiver dismissed by Rosengren DCJ

 

29 April 2019

QCAT directed that the QCAT review was to proceed as a review of decisions under s 42 of the AFAA (that were not decisions 1, 2 or 3). QCAT directed that the review proceeding would not review decisions 2 or 3 because it did not have jurisdiction to do so.

Storry v Department of Justice and Attorney-General – Office of Fair Trading [2020] QCAT 94, [24].

21 May 2019

Respondent ended receivership over the ASRE trust account and the SRE trust account

 

23 May 2019

Respondent’s purported decision to move funds from the ASRE trust account to the consolidated claims fund (Decision 1)

 

29 May 2019

Respondent decided to allow 17 claims against the claim fund, and notified the applicant (of which 6 were repealed on 15 August 2019)

 

28 June 2019

Applicant filed 11 applications for review in QCAT in relation to 11 of the claim decisions (some have been settled/finalised, some remain ongoing)

 

8 August 2019

Applicant filed an originating application in the Magistrates Court seeking relief including a review of decisions 2 and 3 (M3203/19)

 

6 December 2019

Magistrates Court review application dismissed by Magistrate Hay

 

18 June 2020

Application for statutory order of review of decisions 1, 2 and 3 filed in Supreme Court (BS6586/20)

 

24 June 2020

Respondent filed application for dismissal of application for statutory order of review

 

15 July 2020

Boddice J ordered the dismissal of the application

 

 

Footnotes

[1]Affidavit of S Browne filed 1 July 2020 at p 2 [4].  Appeal Book (AB) 30.

[2]Affidavit of S Browne filed 1 July 2020 at p 1 [3].  AB 29.

[3]Affidavit of S Browne filed 1 July 2020 at p 2 [5].  AB 30.

[4]Affidavit of S Browne filed 1 July 2020 at p 2 [6], Exhibit “SB-1”.  AB 30 and AB 36.

[5]Affidavit of S Browne filed 1 July 2020 at p 2 [6], Exhibit “SB-1”.  AB 30 and AB 36.

[6]Affidavit of S Browne filed 1 July 2020 at p 2 [7], Exhibit “SB-2”.  AB 30 and 54.

[7]Affidavit of S Browne filed 1 July 2020 at p 3 [8], Exhibit “SB-3”.  AB 31 and 57.

[8]Affidavit of S Browne filed 1 July 2020 at p 3 [9], Exhibit “SB-4”.  AB 31 and 59.

[9]Affidavit of S Browne filed 1 July 2020 at p 3 [10], Exhibit “SB-5”.  AB 31 and 67.

[10]Affidavit of S Browne filed 1 July 2020 at p 3 [12], Exhibit “SB-6”.  AB 31 and 71.

[11]Affidavit of S Browne filed 1 July 2020 at p 3 [13].  AB 31.

[12]Affidavit of S Browne filed 1 July 2020 at p 4 [15], Exhibit “SB-8”.  AB 32 and 78.

[13]Affidavit of S Browne filed 1 July 2020 at pp 3-4 [14]-[15], Exhibits “SB-7” and “SB-8”.  AB 31 – 32, 74 and 78.

[14]Affidavit of S Browne filed 1 July 2020 at p 4 [16], Exhibit “SB-9”.  AB 32 and 83.

[15]Affidavit of S Browne filed 1 July 2020 at p 4 [17], Exhibit “SB-10”.  AB 32 and 101.

[16]Affidavit of S Browne filed 1 July 2020 at p 4 [19], Exhibit “SB-11”.  AB 32 and 105.

[17]Affidavit of S Browne filed 1 July 2020 at p 4 [20], Exhibit “SB-12”.  AB 32 and 137.

[18]Affidavit of S Browne filed 1 July 2020 at p 5 [21], Exhibit “SB-13”.  AB 33 and 164.

[19]Affidavit of A Tan filed 1 July 2020 at p 2 [6], Exhibit “AT-1”.  AB 220 and 228.

[20]Affidavit of A Tan filed 1 July 2020 at p 2 [8], Exhibits “AT-2” to “AT-19”.  AB 220 and 229-262.

[21]Affidavit of A Tan filed 1 July 2020 at pp 3-4 [9]-[10], Exhibits “AT-20” to “AT-37”.  AB 221-222 and 264-329.

[22]Affidavit of A Tan filed 1 July 2020 at pp 4-5 [11]-[12], Exhibits “AT-38” to “AT-48”.  AB 222-223 and 333-453.

[23]Affidavit of A Tan filed 1 July 2020 at p 5 [15]-[17].  AB 223-224.

[24]Affidavit of B Cramer filed 1 July 2020 at pp 1 [3], 2 [4]-[8] and 3 [11]-[12], Exhibits “BC-1” to “BC-6” and “BC-9”.  AB 166-168, 173-187 and 192.

[25]Affidavit of B Cramer filed 1 July 2020 at pp 2-3 [6], [9]-[10], Exhibits “BC-4”, “BC-7” and “BC-8”.  AB 167-168, 182, 188 and 190.

[26]Affidavit of B Cramer filed 1 July 2020 at pp 3-4 [13]-[14], Exhibits “BC-11” and “BC-12”.  AB 168-169, 202 and 205.

[27]Affidavit of B Cramer filed 1 July 2020 at p 4 [15]-[16], Exhibits “BC-13” and “BC-14”.  AB 169, 209 and 212.

[28]Exhibited to the affidavit of the applicant sworn on 13 July 2020.  AB 490-512.

[29]Exhibited to the affidavit of the applicant sworn on 13 July 2020.  AB 502-512.

[30]Notice of Appeal filed 30 July 2020,  AB 2.

[31]Application to the Court of Appeal filed 30 July 2020.

[32]Applicant’s written submissions on the appeal at p 2.

[33]Applicant’s written submissions on the appeal at p 22.

[34]This is clear from the wording of s 48.  See also Bowyer v de Jersey [2017] QSC 340 at 3 per Lyons SJA.

[35][2018] QSC 128.

[36][2016] QSC 263.

[37][1994] 1 Qd R 369.

[38][2013] QSC 68.

[39][2020] QCA 144 at [27] and [66].

[40]At [65].

[41]At [94].

[42]At [95].

[43]At 372.

[44]At [80].

[45][2017] QSC 340.

[46]AB 24 [45].

[47]AB 27 [68]-[70].

[48]AB 8 line 45 to AB 9 line 6.

[49]Application to the Court of Appeal filed 30 July 2020 at p 2 [4].

Close

Editorial Notes

  • Published Case Name:

    Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General

  • Shortened Case Name:

    Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General

  • MNC:

    [2021] QCA 30

  • Court:

    QCA

  • Judge(s):

    Philippides JA, Mullins JA, Williams J

  • Date:

    02 Mar 2021

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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