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Mayer v Chief Executive, Department of Justice and Attorney General[2019] QCAT 170

Mayer v Chief Executive, Department of Justice and Attorney General[2019] QCAT 170

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mayer v Chief Executive, Department of Justice and Attorney General [2019] QCAT 170

PARTIES:

glen david mayer

 

(applicant)

 

v

 

chief executive, department of justice and attorney general

 

(respondent)

APPLICATION NO/S:

REO004-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 June 2019

HEARING DATE:

30 November 2018

11 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. Time to file the Application for re-opening, correction, renewal or amendment is extended to 26 March 2018.
  2. Glen David Mayer must file two (2) copies in the Tribunal and give one (1) copy to the Chief Executive, Department of Justice and Attorney General, of any written submissions and material in support of:
    1. (a)
      the Application for reopening of the Tribunal’s decision dated 12 June 2017 only in respect of the issue of the appropriate penalty and the Application to stay the Tribunal’s decision of 12 June 2017;
    2. (b)
      the fresh hearing on the merits of the issue of appropriate penalty, if the Application for reopening is allowed,

by 4:00pm on 29 July 2019.

  1. The Chief Executive, Department of Justice and Attorney General must file two (2) copies in the Tribunal and give one (1) copy to Glen David Mayer, of any written submissions and material in response, by 4:00pm on 19 August 2019.
  2. The Application for reopening only in respect of the issue of the appropriate penalty, the Application to stay a decision and the fresh hearing on the merits of the issue of appropriate penalty, if the Application for reopening is allowed, will be determined on the papers unless either party requests an oral hearing not before 19 August 2019.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – MOTOR VEHICLE TRADERS, DEALERS AND REPAIRERS – application to reopen.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – whether extension of time to file application to reopen should be allowed – limited evidence as to merits.

Queensland Civil and Administrative Tribunal Act (Qld) 2009, s 61, s 138, s 140, sch 3

Queensland Civil and Administrative Tribunal Rules (Qld) 2009, s 92, sch

Carmargo v E&R Motorsport [2013] QCAT 741

Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201

Gallagher v Queensland Building Services Authority [2010] QCAT 383

Reeve v Hamlyn [2015] QCATA 133

APPEARANCES &

REPRESENTATION:

 

Applicant:

AD Grant of Grant and Simpson Lawyers

Respondent:

RM Vize, in house counsel

REASONS FOR DECISION

  1. [1]
    Mr Mayer filed an Application for reopening of the Tribunal’s decision of 12 June 2017 (the Decision) to:
    1. (a)
      disqualify him permanently from holding a licence or certificate under the Motor Dealers and Chattel Auctioneers Act (Qld) 2014; and
    2. (b)
      require him to pay a fine of $4,876.[1]
  1. [2]
    The Application for reopening on its face was dated 6 January 2018 and stamped as received by the Tribunal on 26 March 2018.  An affidavit of service filed 9 August 2018 states that the Application for re-opening was served on 7 August 2018. 
  2. [3]
    An application for reopening may be made if a party considers a reopening ground exists.[2] A reopening ground is defined to include that the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing.[3]
  3. [4]
    An application is required to be made within 28 days of a party receiving notice of a decision.[4]  On Mr Mayer’s evidence he became aware of the Decision on 16 November 2017. In these circumstances, Mr Mayer also requires an extension of time within which to file the Application for reopening.[5]
  4. [5]
    If the Tribunal decides that a proceeding should be reopened the Tribunal must decide the issues in the proceeding that must be heard and decided again.  Those issues are to be heard and decided by a fresh hearing on the merits.[6]
  5. [6]
    Mr Mayer also filed an Application to stay a decision, which on its face was dated 12 July 2018 and stamped as received by the Tribunal on 24 July 2018. 
  6. [7]
    The Tribunal made directions for the delivery of submissions and material in support of Mr Mayer’s applications.
  7. [8]
    The Application for reopening and the Application to stay a decision were set down for an oral hearing.  When this matter first came on for hearing Mr Mayer was self- represented.  After the hearing commenced, it was apparent to me that Mr Mayer did not appreciate the nature of the proceedings and so I granted him an adjournment to allow him the opportunity to seek legal advice.  I made further directions allowing him a further opportunity to file and serve written submissions and material in support of the applications and listed the Application to extend time to file the Application for reopening, the Application for reopening and the Application to stay a decision for an oral hearing on 5 April 2019.  I also listed a directions hearing for 15 March 2019 to ensure the matter was ready to proceed.
  8. [9]
    On 15 March 2019 Mr Mayer and Mr Morgan, from Grant and Simpson Lawyers appeared by telephone.  I indicated that whilst it was a matter for Mr Mayer and his advisers to decide how they wished to present his case, the submissions filed by Mr Mayer[7] did not address matters which may be relevant to a favourable determination of the Applications including:
    1. (a)
      evidence of explanation for delay between the signing of the Application for reopening on 6 January and filing on 26 March and service on 7 August;
    2. (b)
      evidence as to the merits of the matter, particularly relevant to an extension of time, and in particular the basis upon which Mr Mayer contended that he had a ‘prima facie defence’[8] by for example outlining the response he would have filed in the original proceedings and filing any documents not part of the Chief Executive’s bundle of documents;
    3. (c)
      whether, if the reopening was granted, Mr Mayer disputed the facts relied upon in the Decision or whether the evidence and submissions would be limited to an appropriate penalty.
  9. [10]
    During the Directions Hearing, I specifically referred to the usual matters relevant to the granting of an extension of time,[9] being whether there was a reasonable explanation for the delay; whether there has been any prejudice suffered as a result of the delay in filing the application; whether the proposed claim has some merit; whether it would be fair and equitable in all the circumstances and noted that a time limit cannot be extended if this would cause prejudice or detriment not able to be remedied by an order for costs or damages.
  10. [11]
    I made further directions allowing Mr Mayer yet a further opportunity to file and serve written submissions and material in support of his Applications and listed the Application to extend time to file the Application for reopening, the Application for reopening and the Application to stay a decision for an oral hearing on 11 June 2019. 
  11. [12]
    Instead of complying with the directions, the parties filed a joint submission ‘with a view to resolving the application without the need for the parties to file further material as directed by QCAT’[10] contending that

the reopening should be allowed subject to the original order being substituted with an order that the motor dealers licence be disqualified for a period of 2 years and 6 months commencing from 12 June 2017.[11]

  1. [13]
    The parties did not file a joint statement of agreed facts nor was Mr Grant in a position to outline the respects in which Mr Mayer conceded or disputed the findings of fact contained in my reasons for the Decision.  Mr Grant conceded that he had not read the Decision nor obtained instructions in respect of the particulars of the Application or referral – disciplinary proceeding, although a copy of the latter was contained within an affidavit filed by the Chief Executive, upon which Mr Mayer relied in part in support of Mr Mayer’s applications. Mr Grant submitted that his focus had been on agreeing the joint submission.
  2. [14]
    I stood the matter down to allow Mr Grant to confer with Mr Mayer and permitted Mr Mayer to provide oral testimony in support of seeking an extension of time with a view to making a decision about whether to extend time for the filing of the Application for reopening and then if granted to make directions allowing the filing of an agreed statement of fact or further evidence and submissions, which may facilitate a decision on the papers being made not only in relation to whether the Application for reopening should allowed, if so the issues to be heard and decided again and for the Tribunal to confirm or amend the Decision or set aside the Decision and substitute a new decision.[12]  The parties agreed to the hearing proceeding in this way.
  3. [15]
    Mr Mayer’s evidence was that:
    1. (a)
      after his Brisbane motor dealing business closed he moved to the Rockhampton/Yeppoon area;
    2. (b)
      the Application or referral – disciplinary proceeding (the Disciplinary Proceedings) was served on him when he attended the Rockhampton offices of Office of Fair Trading (OFT).[13] He provided information about his then current residential address.  He did not take other steps to update his address details associated with his motor dealing licence;
    3. (c)
      on 16 November 2017 officers from the OFT attended at his place of employment and told him he had been disqualified;
    4. (d)
      until that time he had not received any further information or documents about the Disciplinary Proceedings;
    5. (e)
      he is poorly educated and not capable of reading lengthy documents or in fact more than a part of a page.  He did not read the Application or referral – disciplinary proceeding or the supporting documents served upon him and waited for someone to contact him.  He did not ask anyone else to read and explain to him the documents served upon him.  He has since moved and has misplaced or lost the Disciplinary Proceedings documents so was unable to provide them to his lawyers;
    6. (f)
      he had engaged a bookkeeper to pay his licence renewal and had not checked whether his licence had been renewed for the usual 3 year period despite his contention that the bookkeeper had cost him a lot of money;[14]
    7. (g)
      he did not read the Decision nor did he ask anyone else to read and explain the Decision to him;
    8. (h)
      he applied for a salesperson’s certificate by signing a relevant form on 16 November 2017 and submitting it to OFT;
    9. (i)
      by letter dated 19 December 2017 OFT advised him that his application was refused.  He subsequently was informed by an OFT employee that he needed to apply to the Tribunal for a reopening; 
    10. (j)
      he has a poor memory;
    11. (k)
      he could not recall but assumed he would have posted the Application for reopening shortly after he signed it;
    12. (l)
      he could not recall if he sent the documents registered mail and suggested that the delay lay with Australia Post or the Tribunal or both but not him;
    13. (m)
      it was not unusual for post to take 9 days or so between the Rockhampton region and Brisbane;
    14. (n)
      he could not recall any reason why there was a delay between the Tribunal receiving the Application and his service of the document on the Chief Executive, he suggested that he was not told he needed to serve the document;
    15. (o)
      he did not keep a copy of the Applications he filed in the Tribunal and was unable to provide them to his legal representatives.
  4. [16]
    The Tribunal file indicates that:
    1. (a)
      the Application for reopening was received on 26 March 2018. 
    2. (b)
      Mr Mayer did not include a return physical or email address so the Tribunal attempted to return the sealed copies along with a letter explaining that a copy needed to be served on the other party by letter dated 24 April 2018 addressed to his former business address;
    3. (c)
      the letter was returned to the Tribunal unclaimed on 28 May 2018;
    4. (d)
      the Tribunal then attempted to email Mr Mayer on 5, 6 and 8 June 2018 but the emails were undeliverable;
    5. (e)
      the Registry contacted the Chief Executive’s representative and the matter progressed.

Should Mr Mayer be granted an extension of time to file the Application for re-opening?

  1. [17]
    The factors to be considered are uncontroversial.  Mr Grant directed me to Reeve v Hamlyn.[15]
  2. [18]
    I find that time to file the Application for re-opening should be extended to 26 March 2018 and that the Application for re-opening be limited to a reopening of the appropriate penalty.

Duration of delay and satisfactory explanation for delay

  1. [19]
    I find that there are explanations for at least some of the delay.
  2. [20]
    The most relevant delay is the delay between becoming aware of the Decision and the filing of the Application for re-opening.  A short delay is easier to excuse than a more lengthy delay.
  3. [21]
    On the evidence before me I accept that it is more likely than not that Mr Mayer did not:
    1. (a)
      receive a copy of the Decision when sent by the Tribunal in June 2017; and
    2. (b)
      become aware of the Decision until on or about 16 November 2017. 
  4. [22]
    Given that he erroneously thought it appropriate to apply for a sales certificate and his becoming aware that an Application for reopening was required shortly before or after Christmas 2017, the delay in completing a form, which he signed on 6 January 2018 is not an unduly lengthy period of time.  Mr Mayer’s evidence in relation to sending the application document to the Tribunal is sketchy.  I accept that the usual course of post and the Tribunal’s processing procedures would account for some but not all of the delay between 6 January and 26 March.    

Merits

  1. [23]
    There is evidence before me which tends to support Mr Mayer’s contention that he did not receive the numerous directions from the Tribunal to file a Response to the Disciplinary Proceeding and any additional documents not part of the Chief Executive’s bundle or otherwise participate in the Disciplinary Proceedings and therefore such evidence tends to support that he has an arguable case that there is a re-opening ground.
  2. [24]
    Mr Mayer submitted that:

I have a prima facie defence on the merits to the prosecution or charges against me which would make a difference to the decision made about the length of any disqualification and/or if I should remain disqualified.[16]

  1. [25]
    It is difficult to place any reliance upon such a submission given he has not read nor had the Decision read or explained to him.
  2. [26]
    During the hearing Mr Grant confirmed Mr Mayer’s instructions that if the Application for re-opening was allowed, Mr Mayer sought only to file material in mitigation of the penalty and did not propose to contest the findings of fact of the various contraventions.  It is difficult to reconcile this concession with the statements made by Mr Mayer and Mr Grant that neither of them had read the Decision.
  3. [27]
    Mr Grant submitted that I should infer from the joint submission that there were prospects of successfully reducing the penalty.  I asked whether either party was able to draw to my attention any precedent, where a licensee, who was found to have contravened the relevant legislation over a period of more than six years involving 24 separate sales, or in similar circumstances, had received a penalty in the order of 2 and a half years disqualification and was advised that they were unable to do so at that time.
  4. [28]
    Both parties confirmed that the discussions leading to the joint submission were only in relation to what was an appropriate penalty.  The joint submission also infers an admission by Mr Mayer of wrong doing.
  5. [29]
    A factor I took into account in determining an appropriate penalty on the evidence then before me was that:

Mr Mayer made limited admissions during the interview and gave no evidence and made no submissions to this Tribunal as to mitigating circumstances.[17]

  1. [30]
    I accept that if evidence of mitigating circumstances had been placed before me then the penalty imposed may have been less.  In this sense I accept that the Application for reopening arguably has some merit.

Prejudice to other parties or potential parties

  1. [31]
    There is some evidence that if the matter were to be reopened that some complainants may not make themselves available.  Whether those witnesses would have made themselves available at an earlier time, following the filing of an Application for reopening within time, is uncertain.  I accept that given the passage of further time since the events, various witnesses’ memories may be adversely impacted.   
  2. [32]
    As Mr Mayer’s position is that if the Application for reopening is allowed the issue to be decided is only the appropriate penalty any potential prejudice would be less than if all issues were to be reheard.

Interests of Justice

  1. [33]
    In many respects Mr Mayer has not sought to take care and to act in his own best interests in the progress of this matter or the Disciplinary Proceedings, as parties are required to do.[18]  The resources available to the Tribunal are scarce.  However, the consequences of not being able to pursue the reopening are potentially significant to his livelihood.  If the Decision remains in place Mr Mayer will forever be prevented from being employed in the field in which he has worked for in excess of 30 years.

Summary

  1. [34]
    On balance, I find that time should be extended and make directions for the future conduct of this matter.

Footnotes

[1]  Filed 26 March 2018.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld)(QCAT Act), s 138.

[3]  Ibid, sch 3.

[4] Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 92, sch (definition of ‘relevant day’).

[5]  QCAT Act, s 61.

[6]  Ibid, s 140.

[7]  Exhibit 5.

[8]  Ibid, [33].

[9] Gallagher v Queensland Building Services Authority [2010] QCAT 383, [43].

[10]  Joint Submission filed 16 May 2019 (Exhibit 7), [4].

[11]  Ibid, [5].

[12]  Ibid, s 140(4).

[13]  The evidence is that this occurred on 25 November 2016.

[14]  Although the evidence was not clear on this point, his evidence appears to be that this was prior to his Brisbane business closing.

[15]  [2015] QCATA 133.

[16]  Exhibit 5, [33].

[17] Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201, [35].

[18] Carmargo v E&R Motorsport [2013] QCAT 741, [13].

Close

Editorial Notes

  • Published Case Name:

    Glen David Mayer v Chief Executive, Department of Justice and Attorney General

  • Shortened Case Name:

    Mayer v Chief Executive, Department of Justice and Attorney General

  • MNC:

    [2019] QCAT 170

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    26 Jun 2019

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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