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Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd[2015] QCATA 61

Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd[2015] QCATA 61

CITATION:

Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd & Ors [2015] QCATA 61

PARTIES:

Chief Executive, Department of Justice and Attorney-General

(Applicant/Appellant)

v

Campaigntrack Victoria Pty Ltd

(First Respondent)

Galacoast Pty Ltd A.C.N. 053 364 435 (Externally Administered)

(Second Respondent)

Gary William Gannon

(Third Respondent)

APPLICATION NUMBER:

APL362-14

MATTER TYPE:

Appeals

HEARING DATE:

18 February 2015

HEARD AT:

Brisbane

DECISION OF:

President Justice Thomas

Acting Senior Member Howard

DELIVERED ON:

6 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is allowed.
  2. The Tribunal’s orders of 23 July 2014 are set aside.
  3. The following decision is substituted:

The application of Campaigntrack Victoria Pty Ltd dated 15 October 2012 is dismissed.

CATCHWORDS:

APPEAL – PROPERTY AGENTS AND MOTOR DEALERS – EXTENSION OF TIME TO APPLY FOR EXTENSION OF TIME TO CLAIM AGAINST CLAIM FUND – STATUTORY CONSTRUCTION – where s 473(5)(b) of the Property Agents & Motor Dealers Act 2000 (Qld) refers to application to extend time for claim to extend time to claim from claim fund within 14 days of receiving ‘Claim out of time notice’ – where s 511 of the Property Agents & Motor Dealers Act 2000 (Qld) provides that Tribunal may extend time if application brought within the time frame in s 473(5)(b) and it is appropriate having regard to specified criteria – whether as a matter of construction s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies in respect of an application to extend time outside the 14 day period for bringing of application to extend time to claim – whether modifying provision under s 7 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies – whether 14 day period is a substantive or procedural requirement

LEAVE TO APPEAL – WHETHER A SUBSTANTIAL INJUSTICE – PROPERTY AGENTS AND MOTOR DEALERS – whether Chief Executive a proper party to proceedings where no other contradictor to application

Acts Interpretation Act 1954 (Qld) s 32C

Agents Financial Administration Act 2014 (Qld) s 158

Property Agents & Motor Dealers Act 2000 (Qld) ss 472, 473, 511

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 7, 61

Queensland Building and Construction Commission v Watkins [2014] QCA 172

Saraswati v The Queen (1991) 172 CLR 1

APPEARANCES:

APPLICANT:

Mr J. M. Horton QC of Counsel instructed by Crown Law appeared for the Chief Executive, Department of Justice & Attorney-General

RESPONDENT:

Mr B. Le Plastrier of Counsel instructed by McLean & Associates, Lawyers appeared for the first respondent Campaigntrack Victoria Pty Ltd

There was no appearance for the second and third respondents

REASONS FOR DECISION

  1. [1]
    Campaigntrack Victoria Pty Ltd (‘Campaigntrack’) arranges advertisements for real estate agents in the print media. Galacoast Pty Ltd (‘Galacoast’) operated two real estate agencies on the Gold Coast. Gary William Gannon was the principal of the agencies and a director of Galacoast. Campaigntrack booked and paid for advertisements to be placed for Galacoast. Galacoast collapsed, owing money to Campaigntrack.
  2. [2]
    Campaigntrack made a claim against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”). The Chief Executive received the claim under the PAMDA. It assessed the claim as having been lodged outside of the time allowed for doing so (that is, more than one year after Campaigntrack became aware of its financial loss).[1]
  3. [3]
    The Chief Executive issued Campaigntrack with a ‘Claim out of time’ notice under s 473(5) of the PAMDA. The notice was dated 19 September 2012. It stated that Campaigntrack ‘may apply … for an extension of time,’ but that such an application ‘must be made within fourteen days of receiving’ the notice.
  4. [4]
    Campaigntrack filed an application in the Tribunal on 15 October 2012. That application sought a review of the decision that the claim was made out of time, or in the alternative, an extension of time within which its claim may be made.
  5. [5]
    On 23 July 2014, the Tribunal made final orders in the following terms:
  1. The time limit for Campaigntrack Victoria Pty Ltd to file an Application pursuant to s 473(5)(b) of the Property Agents and Motor Dealers Act 2000 is extended to 15 October 2012 pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009.
  1. Galacoast Pty Ltd (Externally Administered) and Mr Gary William Gannon are added as Respondents to the Application by Campaigntrack Victoria Pty Ltd to extend the time within which to claim against the Claim Fund filed on 15 October 2012.
  1. The claim against the Claim Fund lodged with the Chief Executive of the Department of Justice and Attorney General on 22 December 2011 by Campaigntrack Victoria Pty Ltd is referred back to the Chief Executive for the purposes of ss 474 to 477 of the Property Agents and Motor Dealers Act 2000.             
  1. [6]
    The Chief Executive appeals the Tribunal’s decision on two grounds. Firstly, it contends that the Tribunal erred in extending time under s 473(5)(b) of the PAMDA. Secondly, it contends that the Tribunal erred in not removing it as a respondent to the proceeding.
  2. [7]
    It is uncontroversial between the parties, and we accept, that the first ground of appeal about the extension of time is a question of law. Accordingly, leave is not required for that aspect of the appeal to proceed.
  3. [8]
    Despite the Chief Executive’s submissions that the second ground was intended to be confined to an issue of statutory construction only, we are satisfied that the second ground of appeal raises issues of mixed fact and law. The attempt to confine it to a statutory construction issue is artificial: consideration of the ground necessarily requires (as the Chief Executive appeared to concede at hearing) consideration about whether the Chief Executive was properly a party in the circumstances of this particular proceeding. Accordingly, leave to appeal is required.[2]
  4. [9]
    Leave to appeal will ordinarily only be granted where there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief, and when it is necessary to correct a substantial injustice.
  5. [10]
    For completeness, we note that the PAMDA has now been repealed. However, this proceeding must be decided under the provisions of the PAMDA as though it had not been repealed.[3]
  6. [11]
    A preliminary point was raised by Campaigntrack. The Tribunal found or observed (it is not entirely clear which) that an extension of time to make the claim against the claim fund was not required. Campaigntrack suggests that, consequently, the Chief Executive is wrong, and it is irrelevant to suggest (as it does in its submissions) that the claim was made more than one year after it became aware of its financial loss. The Chief Executive argues that as the Tribunal gave considerable attention to the issue of whether it could extend the time specified in s 473(5)(b) pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), the appeal is properly made. It also suggests that it was impermissible for the Tribunal to decide that the claim was not out of time.
  7. [12]
    The issue on appeal is whether the Tribunal has jurisdiction to use the power in s 61 of the QCAT Act (having regard to the proper construction of ss 473(5)(b) and 511(1)(a)(i) in the PAMDA) to extend the time frame to apply for an extension of time to claim against the claim fund. That is, whether an extension of time can be granted for an extension of time application to be made to the Tribunal. We accept that the issue raised on appeal properly arises from the Tribunal’s decision.

Ground 1: Did the Tribunal err in relying on s 61 of the QCAT Act to extend the time in s 473(5)(b) of the PAMDA for Campaigntrack to apply to QCAT for an extension of the time specified in s 472?

  1. [13]
    QCAT is a creature of statute. It has only the jurisdiction Parliament has given it under the QCAT Act and enabling Acts. It has jurisdiction under the PAMDA to determine some claims against the claim fund and to review other specified decisions. It is uncontroversial that it also has jurisdiction under s 511 of the PAMDA to determine applications to extend the time specified in s 472(2) for making a claim against the claim fund.

The PAMDA provisions

  1. [14]
    The primary object of the PAMDA is to regulate persons, including real estate agents, in a manner which balances the protection of consumers and promotion of freedom of enterprise.[4] The objects are achieved in various ways, one of them being through establishment of a claim fund to provide compensation in particular circumstances for persons who suffer financial loss because of their dealings with persons including real estate agents.[5]
  2. [15]
    In broad terms, a person may make a claim against the claim fund established by the PAMDA scheme if the person suffers financial loss because of a specified contravention of the PAMDA, relevantly, by real estate agents.[6]
  3. [16]
    Section 472 provides generally[7] that a person may make a claim against the claim fund only if the claim is made within the earlier of two possible specified time frames. Firstly, the claim must be made within one year after the person becomes aware that it suffered financial loss because of the happening of one of the specified events. Alternatively, the claim must be made within three years after the happening of the specified event that caused the loss.
  4. [17]
    Under s 473(2), claims against the fund must be made to the Chief Executive and must set out certain specified details. A claim is taken to have been made on the day the claim is given to the Chief Executive[8]. Sub-section 473(5) requires as follows:
  1. (5)
    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. [18]
    Section 511 of PAMDA provides as follows:

511 Tribunal may extend time

  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. (ii)
    for a review of a decision of the chief executive—within 42 days after the person receives notice of the decision to be reviewed; and
  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.

The QCAT Act

  1. [19]
    The Tribunal made orders extending the time in s 473(5) pursuant to s 61 of the QCAT Act.
  2. [20]
    Section 61 of the QCAT Act provides as follows.

61 Relief from procedural requirements

  1. (1)
    The tribunal may, by order—
  1. (a)
    extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
  1. (b)
    extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
  1. (c)
    waive compliance with another procedural requirement[9] under this Act, an enabling Act or the rules.
  1. (2)
    An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
  1. (3)
    The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  1. (4)
    The tribunal may act under subsection (1) on the application of a party or potential party to the proceeding or on its own initiative.
  1. (5)
    The tribunal's power to act under subsection (1) is exercisable only by—
  1. (a)
    the tribunal as constituted for the proceeding; or
  1. (b)
    a legally qualified member, an adjudicator or the principal registrar.
  1. [21]
    The relationship between the QCAT Act and enabling Acts (including PAMDA) which confer jurisdiction on the Tribunal is regulated by ss 6 and 7 of the QCAT Act.
  2. [22]
    In particular, the QCAT Act in s 6(7) provides as follows:
  1. (7)
    An enabling Act that is an Act may also include provisions about the following matters, which may add to, otherwise vary, or exclude provisions of this Act about the matters—
  1. (a)
    requirements about applications, referrals or appeals for jurisdiction conferred by the enabling Act;

Examples—

 the period within which an application, referral or appeal must be made

 documents required to accompany an application, referral or appeal

  1. (b)
    the conduct of proceedings for jurisdiction conferred by the enabling Act, including practices and procedures, and the tribunal’s powers, for the proceedings;

Examples—

 the availability or non-availability of stays of the operation of a decision the subject of a proceeding

 persons who must be notified of a proceeding, a hearing of a proceeding or the tribunal’s decision in a proceeding

 additional persons who are a party to a proceeding

 persons who may be represented in a proceeding without the tribunal’s leave

 hearings that must be held in private

  1. (c)
    the enforcement of the tribunal’s decisions in a proceeding for jurisdiction conferred by the enabling Act.
  1. [23]
    Section 7 then makes provision about the way in which the Acts are to be interpreted. In essence, it provides that a modifying provision in an enabling Act prevails to the extent of any inconsistency and the QCAT Act must be read with any necessary changes. It is as follows:

7 Application of Act if modifying provision in enabling Act

  1. (1)
    This section applies if a provision of an enabling Act (the modifying provision) provides for—
  1. (a)
    the tribunal's functions in jurisdiction conferred by the enabling Act; or
  1. (b)
    a matter mentioned in section 6(7).
  1. (2)
    The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.
  1. (3)
    This Act must be read, with any necessary changes, as if the modifying provision were a part of this Act.
  1. (4)
    Without limiting subsection (3)—
  1. (a)
    in a provision of this Act relating to a person starting a proceeding, a reference to the person doing something under this Act is taken to be a reference to the person doing the thing under this Act or a modifying provision; and
  1. (b)
    in a provision of this Act relating to the tribunal conducting a proceeding, a reference to the tribunal doing something under this Act is taken to be a reference to the tribunal doing the thing under this Act or a modifying provision.
  1. (5)
    This section does not prevent an enabling Act from expressly stating how this Act applies in relation to the modifying provision, including, for example, by stating that stated provisions of this Act do not apply, or apply subject to stated variations.
  1. (6)
    In this section—

enabling Act means an enabling Act that is an Act.

The parties’ arguments about construction

  1. [24]
    The Chief Executive submits that the Tribunal erred in construing s 61 of the QCAT Act to override s 511 of the PAMDA. It argues essentially that a proper construction precludes granting an extension once the 14 day period specified in the ‘Claim out of time notice’ has expired. It contends that the requirement set out in s 511(1)(a)(i) is an express pre-condition to the exercise of the Tribunal’s jurisdiction to extend time for the claim to be made. In effect, it says ss 473(5) and 511 must be read together as imposing a 14 day time frame for any application within which an extension of time to make a claim against the claim fund must be brought. That is, for the application to extend time to be considered, it must be made within the time in the notice given under s 473(5)(b). If it is not, then the Chief Executive says the Tribunal has no jurisdiction.
  2. [25]
    The Chief Executive submits that ss 473(5) and 511 of the PAMDA are to be read as a modifying provision in an enabling Act, because of ss 6(7) and 7 of the QCAT Act. Accordingly, it contends, they prevail over s 61 and displace the general discretion s 61 provides to extend time. It argues that s 6(7) anticipates that provisions in enabling Acts may vary or exclude provisions of the QCAT Act by making requirements about the period within which the application must be brought.
  3. [26]
    The Chief Executive says that ss 473(5) and 511 is therefore a modifying provision as contemplated in s 7(1)(b) and, under ss 7(2) and (3), the modifying provision prevails to the extent of any inconsistency over the QCAT Act. It submits that s 61 is inconsistent because it (s 61) provides for a broad general discretion to extend time which contradicts the modifying provision (which, reading s 473(5) and s 511(1)(a)(i) together, imposes a 14 day time limit and, in the absence of compliance with it, the Tribunal does not have jurisdiction).
  4. [27]
    Campaigntrack suggests this is a simplified view of the time limits in ss 473(5) and 511. It relies upon a construction that s 511 creates a time limit that is a substantive, mandatory precondition to jurisdiction. It submits that s 511 does not limit the ability of the Tribunal to extend time for making a claim under s 473(5), which was the time limit extended here by the Tribunal under s 61. In reply, the Chief Executive submits that it relies upon the operation of ss 6(7) and 7 of the QCAT Act, not a distinction between substantive and procedural time limits. However, it contends that if this distinction is a live issue, the provisions in PAMDA provide a substantive time limit in any event.
  5. [28]
    Campaigntrack submits essentially that s 473 is not a provision of an enabling Act which confers jurisdiction on the Tribunal. Accordingly, s 7 does not apply and, therefore, the issue of a modifying provision does not arise. It also says that s 511 merely guides the exercise of the power in s 61 to extend time and that the two provisions work harmoniously together. It submits that s 61 replaces the repealed s 510 of the PAMDA (repealed in 2003 when the Commercial and Consumer Tribunal Act 2003 commenced).
  6. [29]
    Campaigntrack also relies upon some general principles of statutory construction, including that there is a general presumption that there is no contradiction between two Acts of one Parliament.[10] It argued also that an object of the PAMDA is consumer protection and that it is beneficial legislation, suggesting that it should not be restrictively interpreted.
  7. [30]
    Both parties refer to the decision in Queensland Building and Construction Commission v Watkins[11] handed down two days after the Tribunal’s decision. The Queensland Court of Appeal expressly approved a Tribunal decision in which it was found that a prohibition in the relevant section of another enabling Act was not merely a procedural rule which could be extended under s 61, but rather a condition of jurisdiction.[12] In that case, the provision was cast in terms that the Tribunal ‘must not review’ decisions as described in the section if 28 days had elapsed since the decision.
  8. [31]
    The Chief Executive relies upon Watkins as finding that an enabling Act may entirely displace s 61. Of course, it was held to do so on a proper construction of the particular section in the particular enabling Act (which was not the PAMDA). Campaigntrack submits that the reliance is misplaced, because it ignores the distinction between a procedural and a substantive limit on jurisdiction, contending that s 473(5) and s 511(1)(a)(i) set out merely procedural rules. In this regard, it points to the language of s 473(5) that a person ‘may apply to the tribunal’.

What is the proper construction and relationship between the sections?

  1. [32]
    QCAT has jurisdiction under several hundred enabling Acts. Effectively, Parliament has laid down general powers and rules in the QCAT Act, which will apply in the absence of the Parliament determining and enacting specific provisions to apply under a particular enabling Act. Therefore, the general presumption that there is no contradiction between two Acts of Parliament is unhelpful here. The Parliament specifically, in s 6 and s 7 of the QCAT Act, contemplates intentional and purposeful inconsistencies between the QCAT Act and enabling Acts, when Parliament might make provision as it sees fit in an enabling Act which it intends will prevail over inconsistent provisions in the QCAT Act. This is achieved by reading the QCAT Act with any necessary changes.
  2. [33]
    Section 6 provides generally for the relationship between the QCAT Act and enabling Acts. An enabling Act (other than the QCAT Act) confers original, review or appeal jurisdiction on the Tribunal.[13] An enabling Act conferring original jurisdiction (as the PAMDA does in respect of an extension of time to make a claim with the Chief Executive) will generally state the Tribunal’s functions in the jurisdiction which may add to, vary or exclude functions under the QCAT Act.[14] Under s 6(7), an enabling Act may also, as discussed earlier, add to, vary, or exclude provisions of the QCAT Act about matters including requirements for applications for jurisdiction conferred by the enabling Act, such as the period within which an application must be made.
  3. [34]
    Section 7 applies if a provision in an enabling Act (modifying provision) provides for either the Tribunal’s functions in jurisdiction conferred by the enabling Act or a matter in s 6(7).[15] If the section applies, the modifying provision prevails to the extent of any inconsistency[16] and the QCAT Act must be read with any necessary changes, as if the modifying provision was a part of the QCAT Act.[17] By virtue of the Acts Interpretation Act 1954 (Qld) (“AIA Act”), words in the singular include the plural and vice versa.[18] Therefore, multiple provisions read together may constitute a ‘provision’ in an enabling Act which is a modifying provision under s 7(1).
  4. [35]
    Section 61 provides general power for QCAT, in the exercise of its discretion, to give relief from procedural requirements. The power includes extending a time limit for the start of a proceeding under the QCAT Act or an enabling Act or waiving compliance with ‘another procedural requirement’ under the QCAT Act, an enabling Act or the rules.[19] This suggests on a plain reading (consistently with the Court of Appeal’s decision in Watkins) that if a requirement (including one imposing a time limit) is not procedural, then s 61 does not have application. Section 61 also sets out matters to be considered in deciding whether to extend time or waive compliance (such as prejudice or detriment to a party).[20]
  5. [36]
    We turn to the PAMDA. There is no provision in the PAMDA which explicitly confers jurisdiction on the Tribunal to give an extension of time within which a claimant may apply for an extension of the time to make a claim against the claim fund.
  6. [37]
    Section 511 provides jurisdiction (in the exercise of the Tribunal’s discretion) to extend the time frame specified in s 472 within which a claim against the claim fund may be made. It provides that the Tribunal has jurisdiction if the application to extend the time specified in s 472 is made within the time mentioned in the notice given (by the Chief Executive) under s 473(5)(b)[21] and it is appropriate (as an exercise of discretion) to do so, having regard to matters set out (including reasons for the delay and hardship to a party to the claim).[22] There is no appeal right from the Tribunal’s decision about whether to extend time set out in s 472 to make the claim.[23]
  7. [38]
    It is a basic tenet of statutory construction that a provision must be read in its context. To interpret Parliament’s intention in s 511, s 511(1)(a)(i) and s 473(5) must be read together. Section 511(1)(a)(i) can only sensibly be interpreted having regard to the time frame set out in s 473(5)(b). Therefore, it provides for jurisdiction if the application is made within the 14 day period from the giving of the ‘Claim out of time notice’.
  8. [39]
    Section 473(5) requires the Chief Executive to give a ‘Claim out of time notice’ which must specify that 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 (under s 472). As Campaigntrack argues, s 473(5) does not confer jurisdiction on the Tribunal. That said, the Tribunal can only have power to extend time if the timeframe of 14 days is a procedural timeframe which may be extended under s 61 and its operation is not excluded by operation of s 7 of the QCAT Act.
  9. [40]
    Campaigntrack urges us to construe s 473(5)(b) in isolation for deciding whether there is a modifying provision as provided for in s 7 of the QCAT Act. It argues that s 473(5)(b) cannot be such a provision because it does not provide the Tribunal with jurisdiction. However, this submission could only be an argument (which we do not in any event necessarily accept since a modifying provision may be constituted by multiple provisions, and arguably s 473(5) and s 511(1)(a)(i) may constitute a modifying provision) as to why s 7(1)(a) does not apply, and ignores s 7(1)(b).
  10. [41]
    One object of the PAMDA is consumer protection. Campaigntrack describes it as beneficial legislation. That does not mean that Parliament intended the claim fund should be open to protracted claims processes. As the Chief Executive pointed out, Watkins makes it apparent that beneficial legislation can favour a construction requiring expeditious disposition of claims. It is entirely consistent that beneficial legislation should define when benefits are available.
  11. [42]
    The claim fund is public monies. There are good public policy reasons why the Parliament may have made specific provision about a limited timeframe for seeking to extend the time for making a claim. If parties are to be compensated for loss from the public purse, it is reasonable to require that they diligently proceed with any claim. The PAMDA sets out specifically the circumstances and the timeframes within which a person is entitled to claim against it. There is no reason why the beneficial nature of the Act would justify, or lead to, the conclusion that Parliament intended for there to be open-ended opportunities for potential claimants to enliven claims if they fail to comply with specified time frames.
  12. [43]
    Further, to accept the construction favoured by Campaigntrack would require reading into s 511(a)(i) (and/or s 473(5)), additional words after Parliament’s actual words to the effect of ‘or such later time as the Tribunal may allow’. We accept the Chief Executive’s submission that, as a matter of statutory construction, if a plain reading of legislative provisions is available, it is preferable to an interpretation which requires the implication of additional words. In any event, Campaigntrack’s suggested construction seeks, in effect, to overcome an apparent inconsistency between the PAMDA and the QCAT Act by reading the enabling Act (PAMDA) as modified by s 61 of the QCAT Act. This is contrary to the provision in s 7(3) of the QCAT Act requiring it (the QCAT Act) to be read as modified by the enabling Act.
  13. [44]
    The jurisdiction conferred on the Tribunal is the jurisdiction to extend the time limit specified in s 472 if the requirements of s 511(1)(a)(i) are met. That is, if the application is filed within the 14 days of the giving of the s 473(5) notice and the Tribunal, in its discretion, considers it appropriate having regard to the matters specified in s 511(1)(b). We are satisfied that Parliament’s intention was that the Tribunal only has jurisdiction for a claim if s 511(1)(a)(i) is satisfied.
  14. [45]
    Section 61 of the QCAT Act does not apply, but not because of s 7 of the QCAT Act. We are satisfied that s 511(1)(a)(i) (read together with s 473(5)(b)) does not set out a procedural time limit. It imposes a time limit which is a pre-condition to the Tribunal’s jurisdiction.  There is a right for a limited time (that is, within the 14 days notice period) to take certain action, after which the right is lost.[24] Section 61 provides only for ‘Relief from procedural requirements’. It does not apply if the time limit is a pre-condition to jurisdiction. The Court of Appeal in Watkins considered that such a provision contains a substantive and mandatory, rather than procedural, time limit. We find that the requirement under consideration is also substantive and mandatory. Although not couched as a prohibition (as the provision was in Watkins), the provision confers jurisdiction (only) if the prescribed time frame has been complied with, clearly creating a condition of jurisdiction.
  15. [46]
    It is uncontroversial that Campaigntrack’s application to extend the time under s 472 to make a claim against the claim fund was not made within the required 14 day period from giving of the notice by the Chief Executive. The precondition to the Tribunal’s jurisdiction was not satisfied. The Tribunal had no jurisdiction for the claim.
  16. [47]
    It follows that the Tribunal erred in extending the time in s 473(5)(b) pursuant to s 61 of the QCAT Act.
  17. [48]
    We make orders allowing the appeal, setting aside the Tribunal’s orders, and dismissing Campaigntrack’s application.
  18. [49]
    If we are wrong and there is no substantive time limit and precondition to the Tribunal’s jurisdiction, the result would be unchanged. This is because we would then be satisfied that there is a modifying provision. In particular, we would be satisfied that s 511(1)(a)(i) and s 473(5)(b) read together are a modifying provision within the meaning of s 7 of the QCAT Act, satisfying both limbs in s 7(1)(a) and 7(1)(b) of the QCAT Act. We would then be satisfied that there is an inconsistency between the modifying provision and s 61 of the QCAT Act. In that case, both could not be complied with. We would be satisfied that the QCAT Act must be read such that the operation of s 61 of the QCAT Act is excluded.

Ground 2: Did the Tribunal err in not requiring the removal of the Chief Executive as a respondent?

  1. [50]
    In light of our decision on ground one, we do not need to decide this point as the application is dismissed in its entirety. However, in case we are wrong, we make the following observations. We would have concluded that leave should be refused.
  2. [51]
    As discussed earlier, we consider that whether the Chief Executive was properly a party in this proceeding requires a consideration of the circumstances.
  3. [52]
    The Chief Executive was named as respondent in the application filed by Campaigntrack. It did not make an application to be removed as respondent, although it did make submissions that it was not the proper respondent. The Tribunal was entitled to ensure it had a proper contradictor in the proceeding. There was no other named party. The Tribunal directed numerous submissions to be filed by the applicant and the Chief Executive concerning the issue of law with which ground one of this appeal is concerned. It was highly contentious and it seems an issue which the Chief Executive regards of sufficient individual (and perhaps general) importance to appeal.
  4. [53]
    The Chief Executive’s arguments are essentially that the provisions of the PAMDA[25] contemplate that the respondent is the person responsible for the financial loss incurred. However, even if we accepted that is generally correct, the PAMDA contemplates that at least in some circumstances the Chief Executive will be a party.[26] Further, the Tribunal was entitled to ensure it had a proper contradictor before it, a role the Chief Executive fulfilled without applying for its removal as a party.
  5. [54]
    Accordingly, even if the Tribunal erred, there has been no substantial injustice.
  6. [55]
    We would have refused leave to appeal on this ground.

Observations

  1. [56]
    There is no appeal in respect of the Tribunal’s findings or observations (it is not clearly apparent which they are) about whether an extension of time under s 472 was necessary. The Tribunal was entitled, whatever its view of the issue about whether it could extend time under s 61 of the QCAT Act, to make observations to the effect that it considered the application was not out of time under s 472. Had the Tribunal taken the view pressed by the Chief Executive that it was unable to extend the time pursuant to s 61, it could nevertheless have made these observations. Acting to discharge its statutory function to determine claims according to their merits, we expect that the Chief Executive would fully consider those observations.

Footnotes

[1]PAMDA s 472(2).

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) s 142(3)(b).

[3]See the transitional provisions in the Agents Financial Administration Act 2014 (Qld) s 158.

[4]PAMDA s 10(1).

[5]PAMDA s 10(3)(f).

[6]PAMDA s 470(1).

[7]There is further provision about time which is not relevant here if the person starts a court proceeding to recover the financial loss - see PAMDA ss 472(3) and (4).

[8]PAMDA s 472(3).

[9]Our emphasis.

[10] Saraswati v The Queen (1991) 172 CLR 1, 17.

[11][2014] QCA 172.

[12]Ibid at [14]-[16].

[13]QCAT Act s 6(2).

[14]QCAT Act s 6(3).

[15]QCAT Act s 7(1).

[16]QCAT Act s 7(2).

[17]QCAT Act s 7(3).

[18]AIA Act s 32C.

[19]QCAT Act s 61(1).

[20]QCAT Act s 61(3).

[21]PAMDA s 511(1)(a)(i) – the application to extend the time must be made within the 14 day specified time period.

[22]PAMDA s 511(1)(b).

[23]PAMDA s 511(2).

[24] Queensland Building and Construction Commission v Watkins [2014] QCA 172 at [14‑16].

[25]PAMDA ss 474-476.

[26]PAMDA s 512.

Close

Editorial Notes

  • Published Case Name:

    Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd, Galacoast Pty Ltd and Gary William Gannon

  • Shortened Case Name:

    Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd

  • MNC:

    [2015] QCATA 61

  • Court:

    QCATA

  • Judge(s):

    Thomas P, Acting Senior Member Howard

  • Date:

    06 May 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QCATA 6106 May 2015Appeal allowed; order in [2014] QCAT 703 set aside; application dismissed: President Thomas J and Acting Senior Member Howard.
Primary Judgment[2014] QCAT 70323 Jul 2014Application to review decision refusing claim on fund maintained under Property Agents and Motor Dealers Act: Member Paratz.
QCA Interlocutory Judgment[2016] QCA 9615 Apr 2016Costs: Margaret McMurdo P, Applegarth and Henry JJ.
Notice of Appeal FiledFile Number: 5714/1511 Jun 2015APL362/14
Appeal Determined (QCA)[2016] QCA 3726 Feb 2016Leave to appeal granted; appeal allowed; orders in [2015] QCATA set aside; matter remitted to QCAT: Margaret McMurdo P, Applegarth and Henry JJ.

Appeal Status

Appeal Determined (QCA)

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