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Griggs v Chief Executive, Department of Justice and Attorney-General[2018] QCAT 68

Griggs v Chief Executive, Department of Justice and Attorney-General[2018] QCAT 68

CITATION:

Griggs & Anor v Chief Executive, Department of Justice and Attorney-General & Ors [2018] QCAT 68

PARTIES:

Trevor Brian Griggs

Robyn Ann Griggs

(Applicants)

v

Chief Executive, Department of Justice and Attorney-General

Townsville Caravan Centre Pty Ltd (Deregistered)

Maria Carmel Law

Edward Arnold Law

(Respondents)

APPLICATION NUMBER:

GAR110-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

9 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Chief Executive, Department of Tourism, Racing and Fair Trading is removed as a party to the proceeding and the Chief Executive, Department of Justice and Attorney-General is joined as a party to the proceeding.
  2. The application to extend a time limit filed on 27 April 2017 is dismissed.
  3. The application to review a decision filed on 26 April 2017 is dismissed.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – SERVICE BY POST – where mail returned undelivered – whether statutory presumption applies

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where claim lodged out of time – whether power to extend time under repealed Act

Acts Interpretation Act 1954 (Qld), s 39, s 39A

Auctioneers and Agents Act 1971 (Qld), s 119

Property Agents and Motor Dealers Act 2000 (Qld), s 472, s 473, s 511, s 604

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33

Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196

Durney v Deakin University [2014] VSC 577

Fancourt v Mercantile Credits Limited (1983) 154 CLR 87

Hewitt and Hosking v The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    On 16 November 2012, Mr and Mrs Griggs purchased an Opalite Serenity Caravan Trailer (the Opalite) from Townsville Caravan Centre Pty Ltd, a company which has since been deregistered.
  2. [2]
    On 6 September 2016, Mr and Mrs Griggs discovered that the Opalite had previously been recorded as a repairable write-off on the Personal Property Securities Register.
  3. [3]
    On 25 January 2017, Mr and Mrs Griggs lodged a claim against the fund established under the Agents Financial Administration Act 2014 (Qld) (the AFA Act).
  4. [4]
    On 10 March 2017, the Chief Executive, Department of Justice and Attorney-General (the Chief Executive) decided not to deal with the claim pursuant to s 90 of the AFA Act. 
  5. [5]
    On 26 April 2017, Mr and Mrs Griggs lodged an application to review that decision with the Tribunal.
  6. [6]
    On 27 April 2017, Mr and Mrs Griggs lodged an application to extend the time limit to lodge their claim against the fund until 25 January 2017.
  7. [7]
    The issues before the Tribunal are:
    1. whether the application to review a decision was lodged with the Tribunal within time; and
    2. whether the claim against the fund was made within time.

Preliminary issue

  1. [8]
    The proceedings as commenced listed the “Chief Executive, Department of Tourism, Racing and Fair Trading” as a respondent.  It is not in dispute that this department is no longer in existence, and that the “Chief Executive, Department of Justice and Attorney-General” should be substituted as a respondent in its place.  I order accordingly.

Was the application to review lodged with the Tribunal within time?

  1. [9]
    As noted above, the Chief Executive decided not to deal with Mr and Mrs Griggs’ claim pursuant to s 90 of the AFA Act.  That section applies where the Chief Executive considers that there are no grounds for making the claim.  In these circumstances, s 90(2)(b) required the Chief Executive to “give” Mr and Mrs Griggs an information notice complying with s 157(2) of the QCAT Act.
  2. [10]
    Section 39 of the Acts Interpretation Act 1954 (Qld) (the AI Act) sets out the ways in which a document may be “given” to a person:
  1. (1)
    If an Act requires or permits a document to be served on a person, the document may be served—
  1. (a)
    on an individual—
  1. (i)
    by delivering it to the person personally; or
  1. (ii)
    by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or

…

  1. (2)
    Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  1. [11]
    The Chief Executive sent copies of the decision to Mr and Mrs Griggs by prepaid, ordinary post.  The decision was sent to Mr and Mrs Griggs at “Fletchers Creek Camping Ground, Charters Towers QLD 4820”, which was the address listed on their form.  I am satisfied that this was the last residential address known to the Chief Executive for Mr and Mrs Griggs.
  2. [12]
    Section 77(b)(ii) of the AFA Act provides that the Tribunal has jurisdiction to review a decision of the Chief Executive for which an information notice is given under s 90.
  3. [13]
    The time allowed under s 33(3) of the QCAT Act for making an application for review is as follows:

the application must be made, by filing it in the registry, within 28 days after the relevant day.

  1. [14]
    The “relevant day” is defined in s 33(4), relevantly, as “the day the applicant is notified of the decision”. 
  2. [15]
    Section 39A of the AI Act creates a rebuttable presumption as to the time at which service is taken to be effected:
  1. (1)
    If an Act requires or permits a document to be served by post, service—
  1. (a)
    may be effected by properly addressing, prepaying and posting the document as a letter; and
  1. (b)
    is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.

…

  1. (2)
    Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
  1. [16]
    The Australia Post delivery calculator indicates that a letter posted in Brisbane on 10 March 2017 was estimated to arrive in Charters Towers between 14 March 2017 and 20 March 2017.  The Chief Executive has submitted that Mr and Mrs Griggs were therefore taken to have been notified of the decision on 20 March 2017.
  2. [17]
    However, Mr and Mrs Griggs have submitted that s 39A does not apply on the basis that the presumption of service has been rebutted.  Their submission is primarily based on postal records provided by the Chief Executive showing that the decision was returned as “unclaimed” mail. 
  3. [18]
    In Fancourt v Mercantile Credits Limited,[1] one of the matters in dispute was whether the defendants had been served with notices under a hire purchase agreement.  In considering the operation of s 39 of the AI Act, the court observed:

In the present case, the notices were not returned undelivered and there were no other circumstances which suggested that they did not reach their destination.[2]

  1. [19]
    Similarly, in Durney v Deakin University,[3] McMillan J stated that the presumption as to delivery may be rebutted if the relevant item is returned to the sender unopened.
  2. [20]
    Mr and Mrs Griggs also provided a written statement in which they gave evidence that there is no mail service at the Fletchers Creek Camping Ground.  In Deputy Commissioner of Taxation v Starpicket Pty Ltd,[4] evidence was provided that the registered office of the company, in outback Queensland, was not “on the Australia Post delivery frame”.  Greenwood J found that this displaced the presumption of service and proved non-delivery.
  3. [21]
    In the present case, I consider the return of the Chief Executive’s decision, as well as the absence of a mail service, to be conclusive evidence of non-delivery.  That being so, the statutory presumption in s 39A of the AI Act cannot operate. 
  4. [22]
    Mr and Mrs Griggs’ evidence is that they received a copy of the Chief Executive’s decision by email on 3 April 2017.  In the absence of other evidence, I am satisfied that this is the date upon which they were notified of the decision. 
  5. [23]
    The application to review a decision was then lodged with the Tribunal on 26 April 2017.  As the application was lodged within 28 days of Mr and Mrs Griggs being notified of the decision, the application was therefore lodged within the time allowed in s 33(3) of the QCAT Act.

Was the claim against the fund made within time?

  1. [24]
    The fund was previously established and regulated by the Property Agents and Motor Dealers Act 2000 (Qld) (the PAMD Act).  On 1 December 2014, the PAMD Act was repealed and the fund was re-established under the AFA Act.
  2. [25]
    As noted above, Mr and Mrs Griggs’ claim was made on 25 January 2017.  As their claim was not made before the commencement of the AFA Act, s 155(3) of that Act applies:

A person who could have made a claim against the former fund but did not make the claim before the commencement may make the claim against the current fund under this Act, if the time allowed for bringing the proceeding under the repealed Act has not expired.

  1. [26]
    The relevant time limit for making a claim under the PAMD Act was set out in s 472 of that Act:
  1. (1)
    This section applies to a claim against the fund other than a claim because of, or arising out of, a marketeering contravention in relation to the purchase of a non-investment residential property.
  1. (2)
    A person may make the claim against the fund only if the person makes the claim within the earlier of the following—
  1. (a)
    1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in section 470(1);
  1. (b)
    3 years after the happening of the event that caused the person’s financial loss.
  1. [27]
    The event that caused Mr and Mrs Griggs financial loss took place on 16 November 2012 when they purchased the Opalite.  They became aware of the loss on 6 September 2016.  It follows that Mr and Mrs Griggs had until the earlier of the following to lodge their claim:
    1. 6 September 2017, being 1 year after Mr and Mrs Griggs became aware of their financial loss; or
    2. 12 November 2015, being 3 years after the happening of the event that caused their financial loss.
  2. [28]
    The earliest of these dates is 12 November 2015.
  3. [29]
    As Mr and Mrs Griggs had not lodged a claim against the fund by 12 November 2015, the Chief Executive has submitted that the time allowed for bringing the proceeding under the PAMD Act had expired by the time they lodged their claim on 25 January 2017. 
  4. [30]
    However, Mr and Mrs Griggs have submitted that s 511 of the PAMD Act allows the Tribunal to extend the time within which to lodge a claim.  That section relevantly provided:
  1. (1)
    The tribunal may extend the time within which to file the claim or seek review of a decision of the chief executive if the tribunal is satisfied—
  1. (a)
    the application is made—
  1. (i)
    for a claim—within the time mentioned in the notice given under section 473(5)(b); or

…

  1. (b)
    it is appropriate to extend time having regard to—
  1. (i)
    the reasons for not making the claim or seeking the review within the time allowed; and
  1. (ii)
    the application generally; and
  1. (iii)
    for a claim, the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent; and
  1. (iv)
    the justice of the matter generally.
  1. (2)
    No appeal lies against the tribunal’s decision under this section.
  1. [31]
    For completeness, I also set out s 473(5) of the PAMD Act:
  1. (1)
    If the claim is not made within the time allowed under section 472, the chief executive must give the person a notice in the approved form stating that—
  1. (a)
    the claim is out of time; and
  1. (b)
    the person may apply to the tribunal, within 14 days after being given the notice, for an extension of time within which to make the claim.
  1. [32]
    I note that the Chief Executive did not give Mr and Mrs Griggs a notice in the approved form that their claim was out of time in accordance with s 473(5), which was a precondition for enlivening the Tribunal’s discretion under s 511.  The Chief Executive ceased to have power to issue such a notice when the PAMD Act was repealed.
  2. [33]
    Putting that issue to one side, the Supreme Court considered the operation of a similar provision for extending the time within which to lodge a claim in Hewitt and Hosking v The Property Agents and Motor Dealers Tribunal and John Gallagher.[5]  That case concerned the replacement of the Auctioneers and Agents Act 1971 (Qld) (the A and A Act) by the PAMD Act on 1 July 2001. 
  3. [34]
    Section 604(3) of the PAMD Act provided:

If, before the commencement, a person could have made a claim against the former fund but did not make the claim, the person may make the claim against the claim fund.

  1. [35]
    The time limits for making a claim under the A and A Act were set out in s 119:

(4A)  A person may claim against the fund by giving the registrar written notice of the substance of the claim.

  1. (5)
    The notice must be given within –
  1. (a)
    6 months after the person becomes aware that the person has suffered pecuniary loss; or
  1. (b)
    3 years after the commission of the breach that caused the person’s pecuniary loss; whichever occurs sooner.
  1. [36]
    The A and A Act contained a power to extend the time within which to lodge a claim in s 119(6A):

Despite subsection (5), for a claim of the relevant limit or less, the registrar may accept a notice after the time that would otherwise apply under subsection (5) if the committee consents to considering the claim.

  1. [37]
    Wilson J made the following comment on the operation of s 119(6A) of the A and A Act in the context of a claim made under s 604(3) of the PAMD Act:[6]

By s 604(3) [of the PAMD Act] a person who could have made a claim against the former fund may make the claim against the new claim fund. It is the same claim as might have been brought under the A & A Act, and not a new species of claim under the PAMD Act.

…

What of subsection (6A) [of s 119 of the A and A Act]? That created a mere right to apply for a discretionary benefit, namely the Committee’s consent to a consideration of the claim - a right which ceased to exist when the legislation creating it was repealed: see Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 at 177 and 187; Director of Public 8 Works v Ho Po Sang [1961] AC 901.

…

I conclude that the time limits within subsection (5) [of s 119 of the A and A Act] were of the essence of the right created by the section.

  1. [38]
    In my view, I am bound to apply analogous reasoning in the present case.  Section 511 of the PAMD Act conferred a right to apply to the Tribunal for an exercise of discretion to extend the time within which to file the claim.  This right ceased to exist when the PAMD Act was repealed.  The addition of the words “if the time allowed for bringing the proceeding under the repealed Act has not expired” to s 155(3) of the AFA Act does not operate to preserve that right.  It follows that Mr and Mrs Griggs lost their right to apply to the Tribunal to extend the time on 1 December 2014.
  2. [39]
    In Mr and Mrs Grigg’s case, the time limit under s 472 of the PAMD Act had not expired when that Act was repealed and replaced by the AFA Act.  When the AFA Act commenced, their right to make the claim which had arisen under the PAMD Act continued in existence and the time limit under s 472, being the essence of the right, continued to apply.  However, it had expired before they made a claim.
  3. [40]
    By the time they lodged their claim on 25 January 2017, Mr and Mrs Griggs no longer had grounds for making a claim against the fund.  The Chief Executive was therefore correct in deciding not to deal with the claim pursuant to s 90 of the AFA Act.

Disposition

  1. [41]
    For the reasons set out above, I dismiss the application to extend a time limit filed on 27 April 2017.  It follows that I also dismiss the application to review a decision filed on 26 April 2017.

Footnotes

[1] (1983) 154 CLR 87.

[2] Ibid, 95.

[3] [2014] VSC 577, [47].

[4] [2012] FCA 1196.

[5] [2003] QSC 101.

[6] Ibid, [11], [14]-[15].

Close

Editorial Notes

  • Published Case Name:

    Griggs & Anor v Chief Executive, Department of Justice and Attorney-General & Ors

  • Shortened Case Name:

    Griggs v Chief Executive, Department of Justice and Attorney-General

  • MNC:

    [2018] QCAT 68

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    09 Mar 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Deputy Commissioner of Taxation v Starpicket Pty Ltd [2012] FCA 1196
2 citations
Jump To
Cite 1 - [2012] FCA 1196
Cite 2 - [2012] FCA 1196
Director of Public Works v Ho Po Sang (1961) AC 901
1 citation
Jump To
Cite 1 - (1961) AC 901
Durney v Deakin University [2014] VSC 577
2 citations
Jump To
Cite 1 - [2014] VSC 577
Cite 2 - [2014] VSC 577
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
3 citations
Jump To
Cite 1 - (1983) 154 CLR 87
Cite 2 - (1983) 154 CLR 87
Cite 3 - (1983) 154 CLR 87
Hewitt v Property Agents and Motor Dealers Tribunal[2003] 2 Qd R 649; [2003] QSC 101
3 citations
Jump To
Cite 1 - [2003] QSC 101
Cite 2 - [2003] QSC 101
Cite 3 - [2003] QSC 101
Kentlee Pty Ltd v Prince Consort Pty Ltd[1998] 1 Qd R 162; [1996] QCA 87
1 citation
Jump To
Cite 1 - [1998] 1 Qd R 162

Cases Citing

Case NameFull CitationFrequency
Peachey v The Chief Executive, Department of Justice and Attorney-General [2018] QCAT 2502 citations
1

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