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  4. Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading - [2022] QCAT 11

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Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading[2022] QCAT 11

Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading[2022] QCAT 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading & Or [2022] QCAT 11

PARTIES:

MANSOOR SHAH SYED

(applicant)

v

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

(first respondent)

BARI-CLARE JOVER

(second respondent)

APPLICATION NO/S:

GAR157-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The application to review a decision filed on 5 May 2020 is dismissed for lack of jurisdiction. 

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether application filed out of time under section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether time can be extended – whether the tribunal has jurisdiction to hear the matter

Agents Financial Administration Act 2014 (Qld) s 80, s 82, s 100, s 101, s 103

Motor Dealers and Auctioneers Act 2014 (Qld) s 216

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6, s 9, s 17, s 20, s 21, s 33, s 61

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 31

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37

Gallagher v QBSA [2010] QCAT 383

APPEARANCES &

REPRESENTATION:

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

REASONS FOR DECISION

What is this application about?

  1. [1]
    Mr Syed, a licensed motor dealer, advertised a 2005 Hyundai Tucson vehicle (“the vehicle”) for sale for $3,695, describing the vehicle as being in “mechanically good condition”, “perfect condition” and saying that “everything is working as they (sic) should”.   
  2. [2]
    Ms Jover claims that on 4 April 2019 she paid $3,400 in cash to Mr Syed to purchase the vehicle, although the transfer paperwork recorded its “Dutiable Value” as only $1,495. 
  3. [3]
    The following day the vehicle would not start, and it was ultimately determined that the vehicle was not roadworthy (and, therefore, not as advertised by Mr Syed).  Mr Syed made offers to resolve the matter but relied on the duty declaration at $1,495 as evidence of the price paid by Ms Jover, disputing that she ever paid $3,400.  Unsurprisingly then, the matter did not resolve, and Mr Syed cut contact with Ms Jover on 12 April 2019.  
  4. [4]
    The Chief Executive administers a fund established and regulated by the Agents Financial Administration Act 2014 (Qld) (“the AFAA”).  Persons who suffer financial loss in certain dealings with regulated agents (which include licenced motor dealers[1]) may claim against the fund and can be compensated in certain circumstances[2].
  5. [5]
    The making of misrepresentations or false or misleading statements in the course of selling a motor vehicle in breach of section 216 of the Motor Dealers and Auctioneers Act 2014 (Qld) is an event that gives rise to a claim against the fund[3].
  6. [6]
    On 29 August 2019, Ms Jover made a claim on the fund for the purchase price of the vehicle, amounting to $3,400.
  7. [7]
    On 3 April 2020, pursuant to section 100 of the AFAA, the Chief Executive allowed Ms Jover’s claim against the fund, held Mr Syed liable for her financial loss of $3,400 and required Mr Syed to reimburse the fund in that amount (“the decision”).
  8. [8]
    Pursuant to section 103 of the AFAA, Mr Syed and Ms Jover (as parties to the decision) were able to apply to the tribunal for a review of the decision if they were dissatisfied with it, and Mr Syed filed an application to review the decision, which was stamped as having been filed on 5 May 2020.
  9. [9]
    The role of the tribunal in review proceedings is to review the circumstances afresh and to produce the correct and preferable decision.[4]
  10. [10]
    The role of the Chief Executive is to assist the tribunal in making that decision,[5] rather than to take an adversarial role or to defend the decision under review.
  11. [11]
    In response to directions[6], the Chief Executive made submissions[7] questioning the tribunal’s jurisdiction to hear the matter on the basis that Mr Syed’s application was made out of time. My Syed was directed[8] to make submissions on whether the application to review the decision should be dismissed for lack of jurisdiction, with a decision on the question of dismissal to then be made.   That decision and the reasons for it, follow. 

The tribunal’s jurisdiction in reviews

  1. [12]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the Queensland Civil and Administrative Tribunal Act 1999 (Qld) (“QCAT Act”) or by an enabling Act[9] and its review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[10] 
  2. [13]
    An “enabling Act” is an Act or subordinate legislation, other than the QCAT Act or subordinate legislation under it, that confers review jurisdiction on the tribunal[11], in this case, the AFAA.

Was the application for review filed within time?

  1. [14]
    Section 33 of the QCAT Act requires an application for review to be filed within twenty-eight days[12] of the day the applicant is notified of the decision[13].
  2. [15]
    In this case, Mr Syed was notified of the decision by email on 3 April 2020, therefore his application needed to be filed by close of business on 1 May 2020.   Mr Syed does not dispute this.
  3. [16]
    Mr Syed says he posted his application for review to the tribunal by means of express post on 30 April 2020 and that he received notification that the application had been delivered to the registry’s post office box on 1 May 2020.
  4. [17]
    Mr Syed tendered the following in evidence:
    1. (a)
      a redacted express post tracking summary indicating the posting of a parcel or document from Biggera Waters on 30 April 2020 and its delivery to a post office box in Brisbane on 1 May 2020;
    2. (b)
      an email from Ms Singh, from Australia Post indicating a delivery to a post office box at 261 Queen Street, Brisbane on 1 May 2020; and
    3. (c)
      a Statutory Declaration of Mr Syed with respect to the posting of the application on 30 April 2020.
  5. [18]
    None of the filed evidence specifically identifies that the post office records tendered pertained to the application for review.   However, nothing turns on this because Mr Syed’s argument is that because the letter and application were received to the tribunal’s post office box on 1 May 2020, his application has been filed within time, and, unfortunately, this is not the case.
  6. [19]
    Rule 31(1) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) provides that a document is filed when the principal registrar records the document and stamps the tribunal’s seal upon it.  This is irrespective of when the document is received by the tribunal.
  7. [20]
    The application for review was recorded and stamped, and, therefore, filed, on 5 May 2020 and, for this reason, was not filed within the twenty-eight day period allowed in section 33(3) of the QCAT Act.

Can, and if so, should time be extended?  

  1. [21]
    Section 61 of the QCAT Act empowers the tribunal to extend a time limit fixed for the start of a proceeding, or otherwise to waive compliance with another procedural requirement, in certain circumstances.
  2. [22]
    Ordinarily, the power to extend time for the filing of a proceeding involves the exercise of discretion and a consideration of:
    1. (a)
      whether there is a reasonable explanation for the delay;
    2. (b)
      whether there has been any prejudice suffered as a result of the delay in filing the application;
    3. (c)
      whether the proposed claim has some merit; and
    4. (d)
      whether it would be fair and equitable in all of the circumstances.[14]
  3. [23]
    The tribunal’s ability to waive procedural requirements does not extend to waiving substantive requirements.  In Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors,[15] Justice Applegarth noted that the jurisdiction of the tribunal was limited by a provision in an enabling Act that acted as a prohibition.[16]
  4. [24]
    Moreover, section 101 of the AFAA prohibits the granting of an extension of time under 61 of the QCAT Act, expressly providing that (my emphasis added):
  1. (1)If no application for review of the chief executive’s decision is made within the time allowed under the QCAT Act, section 33(3)—
  1. (a)
    the chief executive’s decision is binding on the claimant and the respondent;\ and
  2. (b)
    the amount paid to the claimant from the fund in accordance with the decision may be recovered by the chief executive as a debt owing to the chief executive by the respondent named in the decision; and
  3. (c)
    the respondent may not subsequently challenge the correctness of the decision or the amount payable.
  1. (2)Section 122 and the QCAT Act, section 61 do not apply to enable QCAT to extend the time within which a person may seek a review under the QCAT Act, section 33(3).

Decision

  1. [25]
    The application for review must be dismissed because:
    1. (a)
      the tribunal’s review jurisdiction is only enlivened if the application was filed within the time allowed by section 33(3), namely, by 1 May 2020;
    2. (b)
      the application was not filed by 1 May 2020; and
    3. (c)
      the tribunal cannot extend time to cure the defect under section 61 of the QCAT because section 101 of the AFAA prohibits it.

Footnotes

[1]  Section 80 of the AFAA.

[2]  Section 82(1), ibid.

[3]  Section 82(1)(d), ibid.

[4]  Section 20 of the Queensland Civil and Administrative Tribunal Act 1999 (Qld) (“QCAT Act”).

[5]  Section 21, ibid.

[6]  By Member Kanowski on 3 June 2020.

[7]  Filed on 22 June 2020 (followed by reply submissions on 8 January 2021).

[8]  By Member Browne on 7 December 2020.

[9]  Section 9(1) of the QCAT Act.

[10]  Section 17(1), ibid.

[11]  Section 6(2), ibid.

[12]  Section 33(3), ibid.

[13]  Section 33(4), ibid.

[14] Gallagher v QBSA [2010] QCAT 383 at [43].

[15]  [2016] QCA 37.

[16]  Ibid at [34] and [35].

Close

Editorial Notes

  • Published Case Name:

    Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading & Ors

  • Shortened Case Name:

    Syed v Chief Executive, Department of Justice and Attorney-General – Office of Fair Trading

  • MNC:

    [2022] QCAT 11

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    13 Jan 2022

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
Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2016] QCA 37
3 citations
Jump To
Cite 1 - [2016] QCA 37
Cite 2 - [2016] QCA 37
Cite 3 - [2016] QCA 37
Gallagher v Queensland Building Services Authority [2010] QCAT 383
2 citations
Jump To
Cite 1 - [2010] QCAT 383
Cite 2 - [2010] QCAT 383

Cases Citing

Case NameFull CitationFrequency
Beyond Reserve Pty Ltd v Kagawa [2024] QCATA 982 citations
1

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