Storry v Chief Executive, Department of Justice and Attorney-General
[2022] QCATA 43
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Storry v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 43
Storry v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 43
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Storry v Chief Executive, Department of Justice and Attorney-General [2022] QCATA 43 |
PARTIES: | venetia louise storry storry real estate pty ltd (applicants/appellants) v Chief Executive, Department of Justice and Attorney-General (respondent) |
APPLICATION NO/S: | APL149-21 |
ORIGINATING APPLICATION NO/S: | OCR268-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 April 2022 |
HEARING DATE: | 13 April 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – summary dismissal of proceeding – disciplinary matter concerning real estate agents – appeal from refusal to dismiss application summarily – whether grounds for leave to appeal. BANKRUPTCY – EFFECT OF BANKRUPTCY ON ANTECEDENT TRANSACTIONS – civil proceeding by bankrupt prior to bankruptcy – whether includes right of appeal or to apply for leave to appeal – whether proceeding for personal injury or wrong – proceeding stayed. Bankruptcy Act 1966 (Cth) s 60(2), (3), (4). Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, s 142(3)(a)(ii), s 154(1). Anderson v Armitage [2015] NSWCATAP 72. Cox v Journeaux (No 2) (1935) 52 CLR 713. Cummings v Claremont Petroleum Pty Ltd (1966) 185 CLR 124. Duckworth v Water Corporation [2012] WASC 30. Legal Services Commission v Leneham [2017] QCAT 96. Re Lofthouse (2001) 107 FCR 151. McElligott v McElligott [2015] QCATA 39. Owens v Comlaw (No 62) Pty Ltd [2006] VSCA 151. Warren v Queensland Law Society (Inc) [2016] QCA 262. |
APPEARANCES & REPRESENTATION: | |
Applicants: | Self-represented |
Respondent: | B J Corbiere, legal officer of the Department of Justice and Attorney-General. |
REASONS FOR DECISION
- [1]On 1 August 2019 the Chief Executive, Department of Justice and Attorney-General filed in the Tribunal an application commencing a disciplinary matter against the appellants under the Property Occupations Act 2014 (Qld) (“the Act”) s 172.[1] Ms Storry is or was a licenced real estate agent, and controls Storry Real Estate Pty Ltd, which is not, but was once. Ms Storry’s late father, who was a licenced real estate agent, carried on a business under the name Anthony Storry Real Estate.
- [2]The Chief Executive alleges that after her father became ill Ms Storry took control of his business, and subsequently that business was carried on by the company which for twelve months held a real estate agent licence. The company operated a bank account which was not a trust account as required by the Agents Financial Administration Act 2014 (Qld) (“the AFAA”), and that account has not been operated in accordance with the requirements of the AFAA. The Chief Executive alleges a large number of contraventions of the AFAA.
- [3]It is unnecessary to say any more now about the substance of the proceeding. The material filed in support of the application is voluminous, and the material filed in response is even more voluminous. Ms Storry has raised numerous issues about the investigation into the business, and there has already been a deal of litigation in various courts in connection with it. It is unnecessary to list this.[2]
- [4]On 21 November 2019 Ms Storry filed an application to dismiss or strike out the disciplinary proceeding under the QCAT Act s 47. That application was heard on the papers by a Senior Member and dismissed on 22 April 2021. On 1 June 2021 Ms Storry and the Company filed an Application for leave to appeal or appeal from that decision.[3] It is that application which is now before me.
- [5]Because the decision was not the final decision in the proceeding, leave to appeal is required.[4] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[5] As well, leave is not readily given in a matter involving the exercise of a discretion on a matter of practice or procedure.[6]
Preliminary issue
- [6]An issue has arisen in this matter about the standing of Ms Storry to apply for leave to appeal. This is because on 18 March 2022 a sequestration order was made against Ms Storry under the Bankruptcy Act 1966 (Cth).[7] The Chief Executive has taken the point that as a result of that order the application for leave to appeal has been stayed by the Bankruptcy Act s 60(2), as the trustee has not elected to pursue that application.[8]
- [7]Unlike the Administrative Appeals Tribunal, and despite its name, the Tribunal is a court of record.[9] There is no reason why a proceeding in the Tribunal should not fall within s 60(2). In Anderson v Armitage [2015] NSWCATAP 72 an Appeal Panel of the NSW Civil and Administrative Tribunal held that s 60 applied to an appeal from a decision of that Tribunal.[10] A right of appeal, and hence a right to apply for leave to appeal, is regarded as something which vests in the trustee in bankruptcy, so that the bankrupt no longer has standing to pursue an appeal: Cummings v Claremont Petroleum Pty Ltd (1966) 185 CLR 124.[11]
- [8]It has been said that the effect of s 60(2) is to prevent further costs being incurred in proceedings brought before bankruptcy: Re Lofthouse (2001) 107 FCR 151 at [20]. In Duckworth v Water Corporation [2012] WASC 30 Edelman J reviewed the history of the legislation and the authorities, and concluded that s 60(2) was not confined to actions concerning the property of the bankrupt’s estate, but applied to any civil proceedings, subject only to s 60(4). That was similar to the conclusion of the Court of Appeal in Owens v Comlaw (No 62) Pty Ltd [2006] VSCA 151, where it was held that “action” in s 60(2) included an appeal. It also appears to be consistent with the decision of the Court of Appeal in Warren v Queensland Law Society (Inc) [2016] QCA 262, where a challenge to the appointment of receivers to a legal practice, and a right to appeal from the failure of that challenge, were considered to be within s 60(2). Although there are some decisions the other way,[12] I consider that that is the correct approach, consistent with the wording of s 60. Accordingly that subsection applies to the application for leave to appeal.
- [9]Ms Storry in submissions relied on the exception provided in s 60(4), which excludes from the operation of the earlier provisions actions for personal injury and wrongs. She submitted that the stay application was an attempt to vindicate a personal wrong against her by the Office of Fair Trading, and the Department of Justice and Attorney-General, in relation to the relevant trust account. She complained that there were various legal deficiencies in the conduct of the investigation into the operation of the trust account which amounted to personal wrongs against her, and she was seeking vindication for such matters. She complained that material relied on by the defendant unjustly accused her of fraud, and otherwise defamed her.
- [10]The scope of s 60(4) is wider than the concept of “personal injury” for the purposes of the Personal Injury Proceedings Act 2002 (Qld), although a proceeding within that Act would be covered by it. It has also been held to apply to actions for defamation, assault or false imprisonment, or concerning the custody of the individual, such as habeas corpus.[13] The classic test of the scope of s 60(4) is whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.[14]
- [11]That test was applied by the Court of Appeal in Warren v Queensland Law Society (Inc) (supra), in holding that an appeal against an application to set aside the appointment of receivers to a solicitor’s practice was not within s 60(4), no matter how personally aggrieved the solicitor may feel about the actions of others. There is a difference between suing for defamation, and defending a disciplinary proceeding on the ground that the material relied on is false and defamatory.
- [12]In the circumstances, therefore, I consider that that test applies here, and as a result the application for leave to appeal is not within s 60(4). Hence the present application is covered by s 60(2), and has been stayed. Ms Storry is not entitled to pursue it, and unless the trustee elects to pursue it, it will be brought to an end by the operation of the Bankruptcy Act.[15] That circumstance does not affect the appeal by the company, which I can proceed to hear and determine.
Grounds of appeal
- [13]The grounds allege that the absence of an oral hearing was a breach of procedural fairness, as the company had requested an oral hearing at an early directions hearing. As well, it was submitted that the decision was wrong when it said that the parties agreed not to put the strike out application on hold pending the outcome of a High Court application for special leave to appeal. The relief sought is that the strike out application be “reinstated” and that it be transferred to the Court of Appeal under the QCAT Act s 144.[16] In an attachment to the application, the company alleged that the substantive application was commenced for an improper purpose.
- [14]As to the first point, it is very common for the Tribunal to deal with interlocutory applications on the papers, under the QCAT Act s 32. The company (and Ms Storry) had filed lengthy submissions in the Tribunal in support of the application, and it is clear from the decision of the Senior Member that these were seen as matters properly dealt with at a hearing of the substantive application. In those circumstances, the matters raised by the company were not addressed in detail by the Senior Member. The company has not shown that making oral submissions would have changed that conclusion.
- [15]The matter proceeded under s 32 because of a direction given by the Tribunal on 13 December 2019. Either that involved the rejection of submissions by the company in support of an oral hearing, or the company did not then oppose a hearing under s 32; in either case, there was no appeal against that direction, nor was it subsequently reopened or set aside. It was repeated in directions on 14 January 2020. Ms Storry submitted that the effect of what was said during a directions hearing on 9 March 2021 changed this, and left her with the impression that there would be an oral hearing. She emailed a transcript of that directions hearing, but the Senior Member did not provide for, or contemplate, an oral hearing of this application.
- [16]The transcript shows that the representative of the Chief Executive said that written submissions were in and it could be decided without further submissions. Ms Storry did say that there had been no oral hearing of it yet, and Ms Storry agreed with the proposition that the strike out application had to be heard before there was any hearing on the merits. The matter was left on the basis that there would be another directions hearing at a time and place to be advised, but the Senior Member did not say there would be an oral hearing of the strike out application, or even that the next directions hearing would be before it was decided. The direction that it be dealt with under s 32 was not changed, and nothing was said to indicate that thee would be an oral hearing, although it is possible that Ms Storry was still under that impression.
- [17]Ms Storry said that in two hours she would be able to explain, by reference to the material she has put before the Tribunal, that the foundation of the substantive application was defective, and in that way what she described as a three day hearing could be avoided. There are two problems with this submission. The first is that the factual issues raised by the substantive application are obviously complex, and it seems unlikely that she could go through the evidence on all the disputed matters in as short a time as two hours. The estimate is at best at estimate of her submissions, and does not make allowance for submissions in response.
- [18]The second problem arises from some discussion of the facts with her during the hearing. She admitted that some months before her father passed away she took over his real estate business, and that she set up the company as a vehicle for this. She held a real estate agent licence, and applied for a licence for the company, but opened a trust account with a bank in the name of the company some time before the licence for the company issued. She said this was due to a mistake on the part of the bank, but the mistake may have been in allowing her to open that account prior to the licence issuing for the company. She also said that the use of a company was the idea of an accountant, which may well be true, but evidently she chose to act on it.
- [19]When I suggested that this meant that money was being paid at her direction into a trust account of a company which was not a licenced real estate agent,[17] she became very emotional, and referred to the difficulties she was under at the time, caring for her dying father and later attending to his funeral, having to try to straighten out errors by her father’s bookkeeper and an incorrect audit report, and a delay on the part of the relevant authority in issuing the company licence. These may be relevant to mitigation, but it is difficult to see how they can justify having money which was to be paid into the trust account of a licenced real estate agent paid into a different account. Far from demonstrating that there was no substance to the disciplinary proceeding, what she said during the hearing before me suggested that there may well be substance to it.
- [20]As to the second ground, the application for special leave to the High Court was seeking to challenge a decision of the Court of Appeal upholding a decision of the trial division that an application for judicial review be struck out.[18] It has since been dismissed. At the time the decision of the Court of Appeal stood, and if there was no agreement about deciding the matter pending the decision of the special leave application, it would certainly have been appropriate for the Senior Member to proceed on the basis that the decision of the Court of Appeal was correct. It had not been stayed, and very few applications for special leave to appeal succeed. In any case, that decision was highly peripheral to the matters raised in the substantive application. During the hearing Ms Storry admitted that, so far as the disclosure of relevant material was concerned, that had occurred in earlier proceedings in this Tribunal, and what she was trying to do in the Supreme Court was use that material for her judicial review. Any such error on the part of the Senior Member would not be grounds for leave to appeal.
- [21]Ms Storry in written submissions also referred to the appeal in proceedings APL109-20. That is concerned with review proceedings in relation to a decision to freeze trust accounts. Although arising as part of the same overall situation, it is quite independent of the issues in the application under s 47, and was no reason to delay deciding that application. To some extent her written submissions touched on the factual issues in the substantive proceeding. I do not propose to consider those, because I agree with the Senior Member that these are matters properly dealt with at a hearing of the substantive application.
- [22]It is clear that Ms Storry is very upset about the actions of the regulator, and she is quick to accuse them of various wrong-doing in connection with their conduct in relation to her and her father’s business. For example, she alleges that there were defects in the process by which the department obtained a warrant (apparently to search for and seize financial records) from a magistrate, although an application to another magistrate to review that decision was dismissed, she said for want of jurisdiction.[19] That and other matters were certainly relied on before the Senior Member, and in substance he decided that it was not so clear that the proceeding was instituted for an improper purpose as to justify terminating it summarily. I can see no reason to doubt that conclusion. If that is really the situation, it should emerge on the hearing of the substantive application, when these matters can be ventilated.
- [23]Ms Storry sought to introduce additional evidence on the hearing of the appeal by including it in her submissions, although without having made application for leave to rely on additional evidence on appeal. The new evidence related to the fact that the department provided the Victorian Business Licencing Authority, in response to a request under the Mutual Recognition Act 1992 (Cth) (“the MRA”), with copies of the disciplinary charges and particulars in the substantive application, and copies of the decision of the Tribunal in Storry v Department of Justice and Attorney-General [2020] QCAT 94 and Storry v Chief Executive of the Department of Justice and Attorney-General [2021] QCA 30. Both of these decisions are on the Supreme Court Library website and hence are publicly available, and the filed material is available for inspection and copying;[20] so this is hardly confidential information. The fact that it was provided in response to a request under the MRA means that this cannot be evidence of bad faith.
- [24]The background to this is that Ms Storry applied, under the MRA, for a Victorian real estate agent licence on the basis of her Queensland licence, stating in support of that application that she was not the subject of disciplinary proceedings in any State, and consenting to enquiries being made and the exchange of information with the authorities of any state. That occurred after the disciplinary matter was commenced in the Tribunal against her, and because of her failure to disclose it her application was refused. An attempt to have the Administrative Appeals Tribunal review that decision was dismissed.[21]
Conclusion
- [25]The Senior Member referred to relevant authorities on the application of the QCAT Act s 47.[22] The conclusion reached, that the matters raised by the company were appropriately dealt with on a hearing of the substantive application rather than on an application under s 47, was clearly open on the material. Indeed, I regard it as the obvious conclusion. If an application under s 47 seeks to challenge in detail the factual basis of a factually complex disciplinary proceeding, it is in substance seeking to convert the hearing of the s 47 application into the hearing of the substantive application. That is not an appropriate use of s 47, and does not satisfy the established tests for its operation.
- [26]There is no sufficient reason to give leave to appeal from the decision of the Senior Member. The application of the company for leave to appeal is dismissed.
Footnotes
[1] The Chief Executive may apply as provided in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) – the Act s 173 – and the Tribunal has jurisdiction to hear and determine the application: the Act s 171.
[2] A reasonably up to date list is attachment A to the judgment in Storry v Chief Executive of the Department of Justice and Attorney-General [2021] QCA 30.
[3] Ms Storry claims that she received the decision or reasons on 7 May 2020.
[4] The QCAT Act s 142(3)(a)(ii).
[5] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[6] See for example Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty Ltd [2016] QCA 260 at [49]; Frost v Sanderson [2021] QCATA 55 at [10].
[7] The order is under appeal, but a stay application has been rejected by the Federal Court: Storry v Weir [2022] FCA 362. I therefore proceed on the basis that it is effective.
[8] The trustee appeared at the hearing, and advised that he has not yet made an election.
[9] The QCAT Act s 154(1).
[10] See also McElligott v McElligott [2015] QCATA 39 per Thomas J.
[11] See also Fletcher v Westpac [2012] WASCA 154 at [10].
[12] For example, Griffiths v Civil Aviation Authority (1996) 67 FCR 301.
[13] See Faulkner v Bluett [1981] FCA 3 at [19], [20].
[14] Cox v Journeaux (No 2) (1935) 52 CLR 713, 721 per Dixon J.
[15] The Chief Executive referred me to Thompson v Cyati [2021] QDC 15, where it was held that an application for provision out of an estate should be stayed rather than dismissed by the operation of s 60(2) and (3), in circumstances where the right to apply was said not to be part of the estate of the bankrupt. In my opinion abandonment under s 60 is the equivalent of a non-suit, terminating the proceeding but leaving any cause of action in the bankrupt intact. Whether the bankrupt can take advantage of it after the bankruptcy will depend on other matters.
[16] This order can be made only by the President of the Tribunal, and she has not done so.
[17] See the Act s 169; the AFAA s 9, s 11(2), s 15, s 16.
[18] Storry v Chief Executive of the Department of Justice and Attorney-General [2021] QCA 30.
[19] These arguments were subsequently raised in Supreme Court proceedings.
[20] The QCAT Act s 230(3).
[21] Storry and Office of Fair Trading (Victoria) [2021] AATA 5329, dismissed under an analogue of the QCAT Act s 47.
[22] Legal Services Commission v Leneham [2017] QCAT 96 at [14], [15], [20], and cases cited there.