Exit Distraction Free Reading Mode
- Unreported Judgment
Maxwell v The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General QCAT 459
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Maxwell v The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General  QCAT 459
TIMOTHY KEITH MAXWELL
THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
General administrative review matters
12 December 2018
On the papers
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – LICENCES AND REGISTRATION – QUALIFICATIONS – AS TO CHARACTER – where applicant for licence was convicted of serious offence as defined – whether eligible for licence
Property Occupations Act 2014 (Qld), s 34, s 50, s 178(1)
Mr Peter Rashford, Principal Probity Review Officer, Industry Licensing Unit, Department of Justice and Attorney-General
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- On 3 August 2018 Mr Maxwell applied to QCAT for the review of a decision of the Department of Justice and Attorney-General to refuse his application for a real estate agent licence.
- The matter proceeded to a directions hearing on 30 October 2018 so that QCAT could clarify when the decision in question was made, and therefore whether an extension of time application would be required. This is because an application to review a decision must be filed in QCAT within 28 days of when the person is notified of the decision.
- At the directions hearing it was ascertained that the decision had been made on
24 April 2018. I then issued written directions for Mr Maxwell to file an extension of time application (using the application to extend or shorten a time limit or for waiver of compliance with procedural requirement form), and for the parties to file submissions on whether an extension of time should be granted. The directions indicated that if QCAT decided to refuse to extend time, it would also dismiss the application to review a decision.
- Mr Maxwell filed an extension of time application on 12 November 2018, followed by submissions on 21 November 2018 and 29 November 2018. The Department filed submissions on 23 November 2018.
Is an extension of time required?
- Real estate licensing decisions are made under the Property Occupations Act 2014 (Qld) (Property Occupations Act). Under section 50(3) of that Act, when the Department decides to refuse a licence application, it must give the applicant an information notice about the decision within 14 days.
- On the basis of documents filed by the Department, and not relevantly contested by Mr Maxwell, I find that:
- (a)the Department decided to refuse the licence application on 24 April 2018;
- (b)the Department sent an information notice to Mr Maxwell about the decision on the same date;
- (c)the correspondence was sent by registered post to unit 22103, 5 Lawson Street, Southport;
- (d)this was the address advised by Mr Maxwell as his residential and postal address in his licence application lodged on 6 March 2018;
- (e)it was the residential address for Mr Maxwell last known to the Department as at 24 April 2018; and
- (f)the correspondence was later returned to the Department, ‘unclaimed’.
- Mr Maxwell says he did not receive the information notice until a copy was emailed to him on 31 July 2018. I have no reason to doubt that. It appears that he may have moved prior to 24 April 2018. However, I am satisfied that the registered post copy would have been delivered, unclaimed, to the Lawson Street address within days of it having been posted on 24 April 2018. I infer that it would have been delivered on or about 1 May 2018.
- When an Act requires a document to be given to a person, this may be done by sending the document by post to the address of the place of residence last known to the sender. Accordingly, I am satisfied that Mr Maxwell was duly notified of the Department’s decision on 1 May 2018. It is sufficient that the Department sent the information notice to the residential address last known to it.
- A person who is dissatisfied with a licensing decision may apply to QCAT to have the decision reviewed. An application to review a decision must be filed in QCAT within 28 days after, relevantly, the day on which the applicant ‘is notified of the decision’. Accordingly, any application to review the decision was due to be filed by late May 2018.
- Mr Maxwell did not lodge his application to review the decision until 3 August 2018. It follows that an extension of time would be required before Mr Maxwell’s application to review the decision could proceed.
Should an extension of time be granted?
- QCAT has power, in certain circumstances, to extend the time limit. The power to extend time exists only if the application to review the decision is made within 42 days after the applicant ‘receives notice of the decision to be reviewed’. As the term ‘receives’ is used in section 178, rather than ‘notified’, I will assume in Mr Maxwell’s favour (without deciding) that the 42 days in his case runs from 31 July 2018 rather than 1 May 2018. Accordingly, it would be open to QCAT to extend time if appropriate.
- Section 178 goes on to require QCAT to consider whether it is appropriate to extend time having regard to the application generally and the justice of the matter generally.
- In considering whether to extend time in various contexts, factors usually considered include:
- (a)the applicant’s explanation for the delay;
- (b)whether the applicant has an arguable case; and
- (c)any prejudice to the respondent in granting an extension.
- If an applicant has no prospect of having a decision changed, there would be no point in granting an extension of time.
- The Department argues that there is an insurmountable barrier to Mr Maxwell being granted the licence at present. This relates to the undisputed fact that on 21 June 2017 Mr Maxwell was convicted of the offence of unlawful stalking with a circumstance of aggravation. That is an offence punishable under section 359E of the Criminal Code 1899 (Qld) with seven years’ imprisonment. The actual sentence imposed on Mr Maxwell was 15 months’ imprisonment with early parole eligibility.
- Unlawful stalking, as an offence ‘punishable by 3 or more years imprisonment’, is a ‘serious offence’ as defined in Schedule 2 to the Property Occupations Act. It is important to note that the definition of ‘serious offence’ uses the term ‘punishable’ rather that ‘punished’. Accordingly, whether an offence is a ‘serious offence’ turns on the length of the maximum penalty, rather than on whether the particular offender was sentenced to three or more years’ imprisonment.
- The Department can grant a licence to a person only if satisfied that the person ‘is a suitable person to hold a licence’. Section 34(1) of the Property Occupations Act says that ‘an individual is not a suitable person to hold a licence if the individual is … a person who has been convicted … within the preceding 5 years of a serious offence’. Section 34(2) says that ‘an individual who is not a suitable person to hold a licence can not hold a licence’.
- There is no discretion for the Department to treat a person who has such a conviction as a suitable person. It follows that the Department had no choice but to refuse Mr Maxwell’s application for a licence.
- QCAT is required to conduct any review in accordance with the QCAT Act and the enabling Act under which the reviewable decision was made. It follows that the same limitations that applied to the Department in deciding whether to grant the licence would apply to QCAT. QCAT would have no choice but to uphold the Department’s decision in light of the conviction.
- Mr Maxwell presented a number of arguments in his submissions. These include that he pleaded guilty reluctantly and only because of assurances by the Department that a conviction would not affect his eligibility for a licence. Further, people who have committed worse offences have been granted licences, Mr Maxwell says. However, such matters cannot affect that conclusion that Mr Maxwell is ineligible for a licence.
- It is not appropriate to grant an extension of time for Mr Maxwell to bring the proceeding. Granting an extension would result in a futile proceeding which would waste the time and resources of QCAT, the Department and Mr Maxwell.
- Published Case Name:
Timothy Keith Maxwell v The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General
- Shortened Case Name:
Maxwell v The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General
 QCAT 459
12 Dec 2018