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Valuers Registration Board v Murphy QCAT 41
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Valuers Registration Board v Murphy  QCAT 41
VALUERS REGISTRATION BOARD
NEIL PATRICK MURPHY
Occupational regulation matters
25 February 2019
5 February 2019
PROFESSIONS AND TRADES – VALUERS – MISCONDUCT – where disciplinary referral to Tribunal delayed – whether referral valid – whether Tribunal has jurisdiction – whether extension of time should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 61(1)(a)
Valuers Registration Act 1992 (Qld), s 52
Anderson-Barr v Queensland Building and Construction Commission  QCAT 438
Crowley v McKay  QDC 281
Irwin v Commissioner of State Revenue  QCAT 477
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Registrar of Motor Vehicles v Vu and Anor  SASCFC 10
APPEARANCES & REPRESENTATION:
C Templeton, instructed by RBG Lawyers
K Riedel, instructed by Colin Biggers & Paisley Lawyers
REASONS FOR DECISION
- The Valuers Registration Board has made a disciplinary referral to the Tribunal, in respect of Mr Murphy, who is a registered valuer. In the substantive proceeding, the Board is seeking a reprimand of Mr Murphy, and certain other orders.
- Mr Murphy’s lawyers have applied to the Tribunal for the disciplinary proceeding to be struck out for lack of jurisdiction in the Tribunal. Mr Murphy’s lawyers argue that the Tribunal lacks jurisdiction because of a delay by the Board in referring the matter to the Tribunal. I am required to decide the strike-out application as a preliminary question.
History of the matter
- The following history is undisputed. In April 2017, the Board received a complaint about an aspect of Mr Murphy’s professional conduct, though it had earlier received notification of the matter in December 2016. The Board appointed a Queen’s Counsel as investigator. The investigator’s final report to the Board was dated 23 February 2018.
- On 20 March 2018 the Secretary to the Board wrote to Mr Murphy’s lawyers, giving notice that it proposed to take certain disciplinary action against Mr Murphy. The Secretary invited a response by 11 April 2018.
- On 10 April 2018 Mr Murphy’s lawyers wrote to the Secretary advising that Mr Murphy required the Board to refer the disciplinary matter to QCAT. This was pursuant to a right under the Valuers Registration Act 1992 (Qld) (‘Valuers Registration Act’). Over the following months, there was further correspondence between lawyers for the parties, focussing increasingly on why the Board had not yet referred the matter to QCAT. On 19 September 2018 the Board referred the matter to QCAT.
- On 12 October 2018 Mr Murphy’s lawyers filed the application to strike out the referral, by way of an application for miscellaneous matters. I conducted a hearing of the strike-out application on 5 February 2019. Written submissions had been prepared both by Ms Riedel for Mr Murphy, and by Mr Templeton for the Board. Various documents were admitted as exhibits. The Secretary of the Board gave oral evidence.
- Disciplinary proceedings by the Board are taken under the Valuers Registration Act. When the Board has considered an investigator’s report, and considers that the valuer in question has engaged in professional misconduct, the Board may refer the matter to QCAT, or propose to take internal disciplinary action, or take no further action. Before taking internal disciplinary action, the Board must give a notice to the valuer. Relevantly, the notice must state the professional misconduct that is alleged, and the facts and circumstances that form the basis for the allegation. Further, the notice must specify a date by which the valuer may make written representations to the Board, or request a hearing by the Board, or ‘require the board to refer the matter to QCAT’. So far as the last option is concerned, there is no other provision conferring jurisdiction on QCAT. However, the implied authorisation of a proceeding must be taken to confer jurisdiction on QCAT in light of section 49A of the Acts Interpretation Act 1954 (Qld) (‘Acts Interpretation Act’).
- The Valuers Registration Act does not itself specify a time limit for the Board to refer a matter to QCAT. In that situation, section 38(4) of the Acts Interpretation Act applies to require that the referral to QCAT is made as soon as possible:
38 Reckoning of time
(4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
- Counsel have not found any cases where this provision has been considered by QCAT. Counsel pointed me to some cases in Courts and Tribunals where the provision, or similar provisions in other states, have been considered, though none are in a disciplinary context. I will discuss several of these cases later in these reasons.
The parties’ positions
- Ms Riedel for Mr Murphy argues that the referral to QCAT was not made as soon as possible, and that as a result the Tribunal lacks jurisdiction.
- Mr Templeton for the Board argues that the referral was made as soon as possible. Even if it was not, Mr Templeton argues, the Tribunal retains jurisdiction and, if necessary, the Tribunal can grant an extension of time under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
Was the referral made as soon as possible?
- The referral to QCAT was made a little more than five months after Mr Murphy elected to require the Board to make the referral. On any view, this was quite a long time. This is especially so when one considers that by the time such an election is made, an investigation report has been prepared and the Board has already been required to formulate the basis for disciplinary action. A little extra work would have to be done in addressing what action QCAT should take, given that QCAT has some broader powers than the Board itself, and perhaps in explaining the background for the benefit of QCAT. Further, the correct form must be completed. However, there is no reason that the process of referral should take as long as five months.
- In explaining the delay, the Board’s Secretary has indicated that the Board promptly engaged a barrister (not its current barrister, Mr Templeton). The barrister then took a long time to draft the referral. Some of the delay happened because the barrister was off work, ill, for about a month from 7 July 2018. The Secretary’s evidence was to the effect that she chased up the barrister as much as she reasonably could.
- It is undisputed, that in addition to the requirement deriving from the Acts Interpretation Act for the Board to make the referral as soon as possible, the Board is required to act promptly as a model litigant.
- Mr Templeton for the Board submitted that I should accept that the Board had done all that it could reasonably do to refer the matter as soon as possible. Mr Templeton also submitted that I should not conclude that the Board should have switched to another lawyer at some point, as this proposition had not been put to the Secretary in cross-examination. However, in my view it was not critical to put that proposition because ultimately the question of whether the referral was made as soon as possible is to be determined objectively, regardless of the views of the Secretary.
- Mr Templeton pointed out that a change of lawyer would itself slow progress for a time, while the new lawyer became acquainted with the matter.
- That is true, but the matter is not very complicated and a competent lawyer (without other demands on his or her time) would have easily been able to read the material and draft the referral within a day, in my view. It is also relevant to note that the detailed reports of the investigating Queen’s Counsel were available. So it was a matter that could have been taken over quite easily by a new lawyer.
- In Crowley v McKay, McGill DCJ observed that the phrase ‘as soon as possible’ in section 38(4) of the Acts Interpretation Act means ‘as soon as is reasonably possible’ but is more stringent than a ‘within a reasonable time’ requirement. The Court ruled that an appeal filed more than six months after the decision in question was not filed as soon as possible. Consequently, the right of appeal was lost.
- Mr Templeton for the Board drew my attention to the observation of Kourakis CJ, referring to a requirement in South Australian law, that ‘a person subjected to a duty to act with all convenient speed can do no more than act as expeditiously as he or she can in the circumstances’.
- No doubt that observation would apply equally in respect of the requirement in Queensland to act as soon as possible. I accept that the Board started the process to refer the matter to QCAT promptly and later encountered unexpected delays by its then-lawyer. However, once a few weeks had passed without a drafted referral by the lawyer, in my view it became incumbent on the Board to seek alternate legal representation urgently, or if necessary to draft the referral itself, to ensure that it met its legal obligation to refer the matter as soon as possible. Instead, the wait for the lawyer to draft the referral dragged on.
- I find that the Board did not refer the matter to QCAT as soon as possible.
Does the Board’s failure to refer as soon as possible deprive QCAT of jurisdiction?
- Ms Riedel for Mr Murphy drew my attention to Irwin v Commissioner of State Revenue. In that case, QCAT held that it had no jurisdiction to review a decision of the Commissioner where the application for review was not made within the allowed period.
- It must be noted, however, that jurisdiction in revenue matters is conferred by section 69 of the Tax Administration Act 2001 (Qld):
(2) The taxpayer may, within 60 days after notice is given to the taxpayer of the commissioner’s decision on the objection—
(b) apply, as provided under the QCAT Act , to QCAT for a review of the commissioner’s decision.
(3) QCAT may not, under the QCAT Act , section 61 (1) (a) , extend the period under subsection (2) within which the taxpayer may apply to QCAT for the review.
- This provision clearly indicates that Parliament intended that revenue decisions are reviewable only where the application for review is made within 60 days. There is no equivalent clear indication in the Valuers Registration Act that a disciplinary matter referred late cannot be heard.
- Mr Templeton for the Board drew my attention to the following observations of the majority in the High Court case Project Blue Sky v Australian Broadcasting Authority:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. …
- In that case, an Act required the Australian Broadcasting Authority to determine program standards for television. Another section of the Act required the Authority to perform its functions in a manner consistent with Australia’s obligations under international agreements. The Authority issued a program standard requiring a particular percentage of local content that was inconsistent with Australia’s obligations under an agreement with New Zealand to allow free trade. However, the standard was upheld as valid by the High Court. The majority had regard to a number of factors including that the condition in question regulated the exercise of the function by the Authority rather than imposing ‘essential preliminaries to the exercise of its functions’. Another factor that was considered influential was that considerable uncertainty and inconvenience would arise if validity depended on compliance with international agreements, given that such agreements are numerous and often vaguely expressed.
- Registrar of Motor Vehicles v Vu & Anor involved driver disqualification notices issued by the Registrar of Motor Vehicles. Such notices were required to be issued ‘with all convenient speed’ after a particular event. However, because of the breakdown of a computer link, the notices in question were not issued with all convenient speed. The question then arose whether the notices were valid. The Full Court of the South Australian Supreme Court held that the notices were valid.
- The Court decided that Parliament cannot have intended such notices to be invalid, having regard to a number of factors. Some of the main factors were:
- (a)Parliament could have inserted the speed requirement in the motor vehicle legislation itself, if it wanted that requirement to be pivotal, rather than inserting it in a general enactment for the interpretation of Acts; and
- (b)if compliance with the speed requirement was essential for validity, the penalty enforcement scheme would be compromised because considerable uncertainty would surround whether notices in borderline cases were valid or invalid.
- Mr Templeton for the Board submitted that similar considerations apply in the present case: the time requirement could have been placed by Parliament in the Valuers Registration Act had Parliament intended it to be pivotal. Further, given the lack of precision in the phrase ‘as soon as possible’, considerable uncertainty would arise as to whether referrals were valid or invalid if compliance with the time requirement was essential for validity. The importance of disciplinary proceedings for maintaining public confidence in the profession and in protecting the public also weighs in favour of treating a referral as valid even though it may be made late. Also, Mr Templeton submitted, the fact that the Board has a statutory duty to refer a matter is a relevant factor: while a right such as the right to appeal in Crowley v McKay may lapse through delay, it is not likely that Parliament would have intended a duty to similarly lapse.
- Ms Riedel for Mr Murphy drew my attention to the language of section 34(2) of the QCAT Act: a referral ‘must be made … within the period provided for under the enabling Act …’ (emphasis added). The enabling Act in this case, the Valuers Registration Act, does not itself provide a period but the time requirement of the Acts Interpretation Act can properly be incorporated into the Valuers Registration Act.
- Despite that language, however, I consider it unlikely that Parliament intended that the duty to refer should lapse once a date ‘as soon as possible’ has passed. Having regard to some of the matters highlighted by Mr Templeton – the absence of a clearly-defined period for referral in the Valuers Registration Act itself; the importance of disciplinary proceedings in the regulation of professions; and the fact that a statutory duty rather than a right is involved – I consider it unlikely Parliament would have intended that the Tribunal would invariably lack jurisdiction when referral is not made as soon as possible.
- However, the existence of a power to extend time in the QCAT Act might suggest that this is a mechanism for balancing the duties imposed on a body such as the Board: on the one hand the duty to refer a matter, and, on the other, the duty to do so as soon as possible.
- The parties made submissions that assumed that the extension of time power in section 61(1)(a) of the QCAT Act is applicable. That section enables the Tribunal to ‘extend a time limit fixed for the start of a proceeding by … an enabling Act’.
- The enabling Act in this case is the Valuers Registration Act. When the Valuers Registration Act is read in the way required by the Acts Interpretation Act, it imposes an obligation to refer a matter to QCAT as soon as possible. It does therefore serve to impose a time requirement. But does it fix a time limit? ‘Time limit’ and ‘fixing’ bring to mind definite periods, such as 28 days after conviction to lodge an appeal. ‘As soon as possible’, in contrast, is inherently imprecise. Nonetheless, I consider that it does not unduly strain the language of section 61(1)(a) of the QCAT Act to interpret it as extending to a requirement to refer a matter as soon as possible. Reading it that way enables proper regard to be had not only to the Board’s duty to refer a matter but also to its obligation to do so as soon as possible.
- In other words, a referral can be made late – after the ‘as soon as possible’ period has expired – but the referral can proceed only if an extension of time is granted.
- I have borne in mind Mr Templeton’s point about uncertainty. Extrapolating that point, when will the Board know that an extension of time is required? I appreciate this is a difficulty, but in practice the need for an extension of time application is likely to arise only if the respondent takes issue with a delay in referral.
Should an extension of time be granted?
- Mr Templeton for the Board made submissions in support of a grant of an extension of time to make the referral, if such an extension were necessary. Mr Templeton referred to the factors usually considered in deciding whether an extension of time should be granted: the length of the delay; the explanation for the delay; whether the party bringing the proceeding has an arguable case; any prejudice to the other party; and whether, overall, the interests of justice favour an extension of time. Mr Templeton’s submissions may be summarised as follows. The Board has given a satisfactory explanation for the delay. Its role should not be compromised because of delay on the part of a legal representative that it engaged. The facts underlying the referral are not in dispute, and so the delay has not caused any forensic prejudice to Mr Murphy. The importance to the public of ensuring that disciplinary proceedings are pursued, where warranted, strongly favours the grant of an extension of time. When a valuer has required the Board to refer the matter to QCAT, the Board cannot proceed to take internal disciplinary action. So the refusal to extend time would mean that no further disciplinary action could be taken by the Board. The Board has at least an arguable case that Mr Murphy engaged in professional misconduct. It should be borne in mind that the disciplinary complaint sprang from a concern expressed by a Member of the Land Court that Mr Murphy may have breached a Code of Conduct.
- I accept some of these points: the delay has not caused any forensic disadvantage to Mr Murphy; there is a public interest in the system of professional discipline being enforced; and it does appear that it is no longer open to the Board to take internal disciplinary action. I also accept that the Board has an arguable case, though it is apparent from the investigator’s report that it is also arguable that Mr Murphy did not engage in professional misconduct. I will return to the allegations shortly. I do not, however, accept that the Board has a satisfactory explanation for the delay. While I accept that the Board and its Secretary wanted to refer the matter in a timely way, objectively the Board did not have sufficient regard to its obligation to do so as soon as possible. The delay was substantial.
- In my view, it is also relevant to take into account the nature of the misconduct alleged. The complaint stemmed from the fact that Mr Murphy represented a client in interlocutory proceedings before the Land Court, where the expert witness engaged by the client was a member of the same firm of valuers as Mr Murphy. The Land Court Member noted that a provision of the relevant Code of Conduct requires the strictest independence and impartiality on the part of a valuer where the exercise of objective judgment is required. The Code gives as an example of unacceptable behaviour acting as an advocate in a matter where another member of the advocate’s firm has acted as an expert in the matter.
- It appears from the material in the referral that Mr Murphy’s lawyers have argued that the provision in question would apply to a final hearing but not to interlocutory steps where, it is argued, it is unremarkable and appropriate for a firm which has provided a valuation to appear as a client’s advocate in order to save the client money.
- It is not for me to resolve whether Mr Murphy engaged in professional misconduct, but it is readily apparent that if his conduct did amount to misconduct, it was not at the graver end of the scale. It was done openly in Court, presumably in the belief that it was entirely proper. It did not involve dishonesty. The relatively minor nature of the alleged breach is reflected in the nature of the disciplinary orders sought by the Board: a reprimand, an undertaking not to repeat the conduct, a financial penalty, and costs. The Board has not called for the more serious sanctions of suspension or cancellation of registration.
- I consider the question of whether an extension of time should be granted as rather finely balanced. There is, of course, a genuine public interest in ensuring that professional misconduct, or alleged professional misconduct, is addressed. On the other hand, the community would expect that a person facing the type of accusation that Mr Murphy is facing – that seems to involve an error of judgment at worst – would not be subjected to prolonged uncertainty.
- Weighing up all of the factors, I consider on balance that the interests of justice do not favour an extension of time. I therefore refuse the Board’s application for an extension of time. It follows that the referral must be dismissed.
- I have decided that the Board’s delay in referring the matter does not deprive the Tribunal of jurisdiction, provided that an extension of time is granted. I have decided that an extension of time is not appropriate. Accordingly, I will dismiss the referral.
- The application for miscellaneous matters filed by Mr Murphy on 12 October 2018 included an application for costs. It is appropriate to make some procedural directions to enable the question of costs to be resolved.
Valuers Registration Act, s 50(2).
Ibid, s 52.
Ibid, s 52(2)(c)(iii).
Compare ss 51 and 59 of the Valuers Registration Act.
 QDC 281, 4.
 SASCFC 10, .
 QCAT 477.
(1998) 194 CLR 355, 388-9.
 SASCFC 10.
 QDC 281.
An enabling Act is one that confers jurisdiction on the Tribunal: QCAT Act, s 6(2).
Anderson-Barr v Queensland Building and Construction Commission  QCAT 438, 3.
Valuers Registration Act, s 52(5).
Ibid, s 59.
- Published Case Name:
Valuers Registration Board v Murphy
- Shortened Case Name:
Valuers Registration Board v Murphy
 QCAT 41
25 Feb 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCAT 41||25 Feb 2019||Application by the Valuers Registration Board for an extension of time to make a disciplinary refused; disciplinary referral dismissed: Member Kanowski.|
|Primary Judgment|| QCATA 138||18 Sep 2020||Leave to appeal granted; appeal dismissed: Senior Member Aughterson (Member Browne dissenting).|
|Notice of Appeal Filed||File Number: Appeal 11088/20||16 Oct 2020||-|