Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General
[2014] QCAT 703
•23 July 2014
| CITATION: | Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General [2014] QCAT 703 |
| PARTIES: | Campaigntrack Victoria Pty Ltd (Applicant) |
| v | |
| The Chief Executive, Department of Justice and Attorney-General (Respondent) |
| APPLICATION NUMBER: | GAR351-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 23 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 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. 2. 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. 3. 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. |
| CATCHWORDS: | Where a claim was lodged against the claim fund under the Property Agents and Motor Dealers Act 2000 – where an application to extend time outside the 14 day period – whether the Tribunal has power to extend the time to file an application to extend time under the Property Agents and Motor Dealers Act 2000 – whether the Tribunal has power to join respondents – whether the Chief Executive Department of Justice is a proper respondent on an application to extend time under the Property Agents and Motor Dealers Act 2000 – whether a claim was brought within time under the Property Agents and Motor Dealers Act 2000 Property Agents and Motor Dealers Act 2000 (Qld), s 473(5), s 511, s 512 The Chief Executive, Department of Justice and Attorney General v Crampton Automotive Pty Ltd t/a Toowoomba Holden & Ors [2014] QCATA 020 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Campaigntrack Victoria Pty Ltd (‘Campaigntrack’) operate a business through which they arrange to book and organise advertisements for Real Estate Agents in print media publications. They want to claim for payment on the fund set up under the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’).
Galacoast Pty Ltd (‘Galacoast’) operated two separate Real Estate Agencies on the Gold Coast known as Ray White Broadbeach and Ray White Mermaid Beach. Gary William Gannon was the principal of the agencies and a Director of Galacoast Pty Ltd.
Between 30 September 2010 and 11 December 2010, advertisements were booked and placed by Galacoast through Campaigntrack who issued invoices for those advertising costs.
On December 2010, Receivers and Managers were appointed to Galacoast.
On 14 February 2011 a demand for payment was issued to Galacoast by Campaigntrack.
Campaigntrack, through its Solicitor, completed a PAMD Form 50 dated 22 December 2011, for an amount of $329,995.00, which was sent to the Office of Fair Trading and received by that office on 3 January 2012. The responsible person for the Office is the Chief Executive Department of Justice and Attorney-General (‘the Chief Executive’).
The Office of Fair Trading by a letter dated 19 September 2012 said that the claim had been assessed as being outside the time limit as it was lodged more than one year after Campaigntrack became aware of its financial loss. The letter attached a PAMD Form 52 (Out of Time Notice) pursuant to s 473(5) of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD Act’).
Campaigntrack filed an “Application to review a decision” in the Tribunal on 15 October 2012. The applicant sought two alternate outcomes, either:
(a) A review of the decision that the claim was out of time, or
(b) An order extending the time to make the claim.
The respondent named on the application was the decision-maker, Mr Luke Skinner of the Office of Fair Trading. The Registry of the Tribunal treated the naming of the respondent as being the responsible person, who is the Chief Executive Department of Justice and Attorney-General.
Directions were made by the Tribunal on 8 November 2012. Those directions required:
(a)the filing by the Chief Executive of its statement of reasons and any document or thing in its possession or control that may be relevant to a review of the decision by 7 December 2012;
(b)the filing by Campaigntrack of any statements of evidence by 14 January 2013;
(c)the giving of any statements of evidence in reply by the Chief Executive by 15 February 2013.
The parties were given leave to be legally represented in the proceedings.
The Chief Executive filed Submissions on 7 December 2012 and Campaigntrack filed Submissions on 10 January 2013.
Directions were made on 27 February 2013 that:
(a)Campaigntrack and the Chief Executive were to file further submissions on jurisdiction and extension of time;
(b)the matters of jurisdiction and extension of time would be determined by a member of the Tribunal on the papers, by written submissions from the parties, and without an oral hearing.
Campaigntrack filed Further Submissions on 11 March 2013, and the Chief Executive filed Submissions in Reply on 14 March 2013.
Further Directions were made on 13 June 2013 , that to assist the Tribunal to determine the matters of jurisdiction and extension of time, the parties were each to provide submissions on the following issues:
1.Is the Application filed by the Applicant made
(a)for a claim, or
(b)for a review of a decision of the Chief Executive
having regard to Section 511(1)(a) of the Property Agents and Motor Dealers Act 2000 (the alternates) ?
2.Is the Chief Executive, Department of Justice and Attorney-General (the Chief Executive) the proper Respondent to the application in each alternate?
3.If the Chief Executive is not the proper respondent, does the Tribunal have power to substitute, or add, Galacoast Pty Ltd (Externally Administered) and Mr Gary William Gannon, as Respondents to the Application in each alternate?
Submissions were received from Campaigntrack on 22 July 2013, and from the Chief Executive on 18 July 2013.
Subsequently, the Chief Executive filed a further submission on 6 September 2013 drawing the attention of the Tribunal to the decision in Ryton-Benson v Contrabart Management Pty Ltd & Ors.[1]
[1] [2009] CCT PE001-09.
Further directions were then issued on 20 September 2013 that both parties were to provide submissions to the Tribunal, with a copy to the other, on the following legal issues:
1.The effect of the decision of Ryton-Benson v Contrabart Management Pty Ltd [2009] CCT PE001-09 on the considerations in this matter.
2.The effect of the decision of Queensland Building Services Authority v Russell Ian Watkins (District Court, Brisbane 5 September 2013, D5092/11, and in particular paragraph 20, on the considerations in this matter.
3.In light of QBSA v Watkins does the Tribunal have power to extend time in this matter under s 61(2) of the QCAT Act, notwithstanding the provisions of s 511 of the PAMD Act? By 4:00pm on 18 October 2013
4.Each party may file a Submission in Response to these submissions of the other, with a copy to the other By 4:00pm on 18 November 2013
5.A decision on the papers will be made after determination of the Appeal in Mr Gary John Smeeton v Department of Justice and Attorney-General OCR059-13, which will be decided after the decision in Mr David Hambleton as joint and several liquidator of Sky 5 Pty Ltd v Department of Justice and Attorney-General GAR343-13 (which is set for hearing on 29 November 2013) is received; as those two cases concern similar questions of law.
Submissions were received from Campaigntrack and from the Chief Executive on 18 October 2013. The decisions in the Appeal in Smeeton (which is later referred to here as Crampton Automotive); and in Hambleton were handed down by Judicial Members of the Tribunal in 2014.
There are a number of issues to be determined. Essentially, procedural questions have arisen in this matter because an application has been brought for review (when it perhaps should have been for an extension of time); against the Chief Executive (but not also against, or instead against, the Real Estate Agency and its principal); as to whether the claim and application has been brought too late; and as to whether the Tribunal has the power to make orders in these situations. It is necessary to work through all these questions.
These matters are all pursuant to the Act, which is a specific Queensland Act. The Act itself is not an easy Act to follow in its concepts and processes. The Act has recently been overtaken by a group of separate Acts, and it remains to be seen if the procedural difficulties that many claimants have encountered, have been overcome.
The Act is set up in a way that allows the Chief Executive to make an assessment, using its own reasoning processes, as to whether a claim against the Claim Fund has been brought within time. If the Chief Executive decides that the claim is out of time, it issues a Form 52 “Claim out of Time Notice”. That Notice names certain people as respondents, usually the Real Estate Agency and its executive officers.
The Form 52 and accompanying letter advises claimants that they can make application to the Tribunal to extend time. Neither the Form, or the accompanying letter, however, state that the Application to the Tribunal should only be brought as an “Application to extend Time” and that the persons named on the Form 52 should be named as the respondents to the Application.
The consequence is that many claimants who have disagreed with the assessment by the Chief Executive of the relevant dates, have proceeded to file an Application to Review against the Chief Executive. Those applications have repeatedly been met with a response by the Chief Executive that the Application has been brought in the wrong way against the wrong respondent, and that it is then too late to bring alternate proceedings; and that the Tribunal has no jurisdiction to remedy that by altering the names of the respondents or by extending time to bring an application to extend claim. That has happened in this matter.
This is a technical process that many claimants have found difficult, and see as bureaucratic and unfair, and putting procedural hurdles in the way of what they see as their pursuing their just claim.
It is entirely understandable that a claimant would assume that an assessment made by the Chief Executive that a claim is out of time, is a decision, that could and should, be “reviewed”. It is also entirely understandable that that the claimant would think that on a “review” the correct respondent is the decision-maker, who would seem to be the Chief Executive.
The Act however was arguably not set up that way. The Act provided for the Chief Executive to refer major claims to the Tribunal, and for the Tribunal to decide them. That has now been changed with the new Acts.
A difficulty arises with an extension of time claim, as the Chief Executive rightly points out in these matters, that the Real Estate Agency and the Principals have an interest in the outcome, and should have an opportunity to make submissions as to any prejudice they may suffer by an extension of time being granted.
These difficulties have come before the Tribunal in various combinations in previous matters. The Tribunal has sought to determine these matters having regard to its duties in a Review to “produce the correct and preferable decision”,[2] and in all proceedings to “act fairly and according to the substantial merits of the case”.[3] They have given rise to the decisions in Crampton Automotive Pty Ltd[4] and Hambleton,[5] however the position is still unclear.
[2] QCAT Act, s 20(1).
[3] Ibid, s 28(2).
[4]The Chief Executive, Department of Justice and Attorney General v Crampton Automotive Pty Ltd t/a Toowoomba Holden & Ors [2014] QCATA 020.
[5]Hambleton v The Chief Executive, Department of Justice and Attorney-General & Anor [2014] QCAT 064.
One approach has been to treat the decision of the Chief Executive that a claim was out of time, as a decision that is open to review, and the proper respondent would be the Chief Executive. That approach was disapproved of by Judicial Member Dodds in Crampton Automotive.
An alternate approach has been to name as respondents all of the real estate agency and its principals, as well as the Chief Executive, so that all of these parties appear at Directions Hearings, and receive Directions. That approach was approved of by Judicial Member Brabazon in Hambleton.
The Chief Executive however, has regularly opposed its being named as a respondent in this way. It argues that it can make submissions under the provisions of the Act, so there is no need for it to be a formal party, and routinely requests the Tribunal to send it copies of directions and orders so that it may be appraised of developments as they occur. This is an attempt to put some efficiency into what is an awkward and confusing process, but it has an artificiality about it.
The basic difficulties lie in the confusing and somewhat convoluted processes of the Act. Whatever motivations impelled the drawing of the Act in this way, which may relate to apportionment of responsibility between the Chief Executive and the Tribunal, the result is difficult, and it is left to claimants, the Chief Executive and the Tribunal to make their way through the Act in the best possible way.
I will now address each of the procedural questions in this matter.
The nature of the Application
The application has been drawn as having two alternate bases – either as a Review of a Decision, or as an Extension of Time. The Tribunal does have two separate Forms in respect of these types of applications. Form 23 is an “Application to review a decision”. Form 42 is an “Application to extend or shorten a time limit or for waiver of compliance with procedural requirement”. This application was brought on Form 23.
The first issue is whether this is properly an application for a review of a decision of the Chief Executive (determining that the claim was made out of time); or an application to extend the time to make a claim.
Dodds J sitting as a Judicial Member of the Tribunal noted in Crampton Automotive:
[16]The determination about an extension of time was entirely within the discretion of the tribunal guided only by the terms of section 511(1)(b) of PAMDA. It was not a review of the Chief Executive’s decision in which the Chief Executive had an interest in being heard.
…
[19]This historical practice may well have been what prompted the tribunal in this matter to describe the application before it as “effectively a review of the decision of the Chief Executive”. But the matter before the tribunal was in truth an application to extend time. In the cases from the past mentioned and in the present case, in addressing the matters in section 511(1)(b) PAMDA, the evidence before the tribunal appears to have led the tribunal to a view there was no need to extend time.
[20]Because the tribunal came to the view that there was no need to extend time, that does not convert what was an application to extend time, which was within the jurisdiction of the tribunal, into a review of the correctness of the Chief Executive’s decision, a matter the tribunal had no jurisdiction to decide.
Therefore, even though it may seem that the assessment of the Chief Executive that a claim is out of time is a decision which should be reviewable, in the context of this Act it is not treated as such.
Consequently, the “Application to Review” of Campaigntrack is misfounded. However, the alternate application for an extension of time to the Tribunal is appropriate.
An application to extend Time should be brought on a Form 42. Can an Application to extend Time be brought in the Tribunal on a Form 23? The processes of the Tribunal are very flexible. The Act provides that the Tribunal:[6]
(d)must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit
[6] QCAT Act s 29(3)(d).
It is not unknown for applicants to matters in the Tribunal to use an incorrect Form. It obviously assists the efficient handling of matters in the Tribunal if they are properly described and filed at the outset, but the paramount consideration must always remain the doing of justice to the parties, rather than strict adherence to procedure.
The Chief Executive submits that this matter is more in the nature of an alternate claim by one commercial operator against another, rather than a claim by an aggrieved consumer against a Real Estate Agent, which was the intent of the setting up of the Fund:
33.The Chief Executive submits that the Claim Fund is designed to be a consumer protection mechanism and not merely a safety net for a commercial enterprise in a civil dispute with a licensee.
…
36.In these circumstances, it does not appear that the justice of the matter requires that the Applicant be now given an extension of time in order to pursue the claim. The chief executive submits that that any action for the recovery of monies allegedly owed to the Applicant should be commenced against Galacoast under insolvency provisions contained in the Corporations Act 1966 (Cth) and not via the Claim fund.
If Campaigntrack is able to bring itself properly within the provisions of the Act as a claimant, then the Act must be applied equally to it as to any other claimant. I do not consider that it is open to the Tribunal to treat Campaigntrack differently as a claimant, simply based upon the nature of its relationship with the Real Estate Agency.
It is obviously in the interests of justice that a claimant should be able to pursue its claim as far as possible within the provisions of the Act and the procedures of the Tribunal.
I therefore consider that the procedures of the Tribunal are flexible enough, and it is appropriate, that the alternate claim for an Extension of Time should be considered as the principal Application, and can be accepted as having been filed in the Tribunal on 15 October 2012, notwithstanding that it was not made on the usual Form, and the Tribunal can then go on to assess that Application.
The Respondents to the Extension of Time Application
The next question that arises then, is that given that the application for an extension of time was made on 15 October 2012, was it brought against the correct respondent and can alternate or additional respondents now be added or substituted?
The only current respondent to the Application to extend Time is the Chief Executive. It is clearly necessary that the Real Estate Agency and its principals should be respondents on such an application, as the Act requires that on an application to extend time the Tribunal must have regard to the “the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent”.[7]
[7] Section 511(1)(b)(ii).
Does the Tribunal have the ability to add Galacoast Pty Ltd (Externally Administered) and Mr Gary William Gannon as respondents, and should the Chief Executive be maintained as a respondent?
Brabazon J. in Hambleton found that the Chief Executive is a proper respondent to a claim under the Act:
[11]It is submitted here that the Chief Executive has never been a proper party to this proceeding.
[12]It is hard to see how that submission could be accepted. Section 512 itself says that the Chief Executive may be a party to a proceeding. A controversial claim against the fund could properly have the Chief Executive as a party to it.
[13]In my opinion, the Chief Executive is a proper respondent to this application.
The advantage of not removing the Chief Executive as a respondent is that it keeps the application alive, even if some challenge were to be made to the ex-parte joining of the new respondents by them at a later date (perhaps due to some misdescription or other fault). If the Chief Executive, who is the sole respondent, is simply removed, then there would be no remaining party, and the application may become a nullity. If the Chief Executive is retained as a respondent, then the application remains on foot, regardless of any other procedural defect that may have occurred, or could occur.
The mere fact that the Chief Executive is named as a respondent does not mean that any order will ultimately be made against the Chief Executive. Indeed, the order that would be made on a successful Application to extend Time is simply an Order that the time be extended to the date of the filing of the application, and the matter is then referred to the Chief Executive for processing in accordance with s 474 to s 477 of the Act.
It is difficult to see what detriment is caused to the Chief Executive simply by its involvement being formalised as a party, given that:
(a) the Chief Executive seeks routinely to be kept informed of proceedings of the Tribunal, and that
(b) it is able to make submissions at any time, and
(c) routinely attends Directions Hearings in applications of this type, and
(d) would be allowed to appear on any oral hearing of such an application, and
(e) no Order is to be made against the Chief Executive.
Balanced against this is the enormous detriment that would be suffered by the claimant if the Application were allowed to lapse into a nullity. The justice of the situation clearly demands that the involvement of the Chief Executive be continued, and the viability of the proceedings be maintained.
The Tribunal has power under s 42 of the QCAT Act to join parties. That section provides:
(1)The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that –
(a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
(b)the person’s interests may be affected by the proceeding; or
(c)for another reason, it is desirable that the person be joined as a party to the proceeding.
(2)The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.
The interest of the real estate agency and its principal are clearly affected by a claim against the fund, as any amount paid out may be recovered from them. It is therefore appropriate to join them as respondents.
I consider that the appropriate course, in the circumstances, is to retain the Chief Executive as a respondent, and to add the real Estate Agency and its principal as additional respondents.
Jurisdiction to entertain application to extend time
The Notice out of Time is dated 19 September 2012. The Chief Executive submits it would have been received about two days later. An application to extend time must be lodged with QCAT within 14 days of receiving the Notice, under s 473(5) of the Act.
The application was filed on 15 October 2012. That is about twenty-four days after the notice was received. The Application was therefore lodged about ten days out of time.
Does the Tribunal have jurisdiction to extend the time for filing of the Application to extend time by those ten days?
The Chief Executive has submitted that:[8]
The Chief Executive notes that the PAMD Form 52 “Claim out of Time” was received by the Applicant on or about 21 September 2012. The Chief Executive submits that the Applicant was required to lodge an extension of time application by 5 October 2012. The Chief Executive notes the applicant has failed to do this. In the circumstances there is no power to consider an application to extend time.
[8] Submission dated 7 December 2012 at [14].
It has referred the Tribunal to the decision in Ryton-Benson. In that case the claimant was assessed as having lodged their claim out of time, and lodged an application to extend time outside the 14 day period in s 473 of the Act. The Commercial and Consumer Tribunal held that:
25.The provisions of section 511 are quite clear. The Tribunal does not have power to extend the time in which to file a claim against the claim fund unless the application for an extension is made within the 14 days mentioned in the notice. The 14 day period is specified in section 473(5) of the Act, which simply provides that “a person may apply to the Tribunal within 14 days after being given the notice”.
…
28.In the application for an extension, the applicant seeks an additional order that the application “be deemed to have been made within the 14 day period”. The Tribunal does not have any power under its own or the other empowering Acts to make an order of that kind, so as to deem an application made on 27 January 2009 to have been made on or before 31 December 2008.
29.This is not the first case in which an applicant has been deprived of an opportunity to make a claim against the claim fund because of the operation of the time limits contained in section 511 of the Act. However deserving or otherwise a claimant might be, it remains the case that the tribunal is unable to assist this applicant by extending the time because of the absence of power to do so.
That case was a decision of a former Tribunal. The operation of this Tribunal is however governed by a different Act, the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’).
The Tribunal has a general power under s 61 of the QCAT Act to extend a time limit set by an enabling Act. The question then arises whether this Tribunal can extend the 14 day period in s 473(5) under s 61.
The Chief Executive submits that s 52 of the Act governing the former Tribunal, the Commercial and Consumer Tribunal Act 2003, contained the same broad discretionary extension of time provisions that are now contained in s 61 of the QCAT Act. However, no reference to that power is made in the decision in Ryton-Benson, and it cannot be assumed that the then applicable s 52 was considered, or was applicable.
The question of extension of time generally by the Tribunal was considered in Queensland Building Services Authority v Russell Ian Watkins.[9] Dorney QC, DCJ held that:
[20]Additionally, unlike some other considerations in this area, s 61, apart from its title reference to ‘procedural’ requirements, does not internally refer to any limitation such as being subject to a contrary intention appearing in affecting legislation, either being the same or overlapping legislation. Section 61(2) of the QCAT Act on its literal reading permits such an extension even if the time for complying has passed. Even if s 61(1)(a) were to be inapplicable by reason of s 86(2)(c) – for example, on its “proper” interpretation, not being characterised as “a time limit fixed for the start of a proceeding – s 61(1)(b) is applicable as the 28 days is a “time limit fixed by .. an enabling Act”. A potential test of the applicability of s 61(1) is to postulate the outcome if an application were to have been made to QCAT before the 28 days set out in s 86(2)(c) of QBSA Act had expired, particularly under s 61(1)(b). It is certainly open to conclude that, reading the provisions together, it would not of itself offend the overall scheme if an extension were to be applied for prior to the expiry of that 28 days.
[9] [2013] QDC 198.
I requested the parties to make submissions having regard to those decisions, and as to whether the tribunal has power to extend time in this matter under s 61(2) of the QCAT Act, notwithstanding the provisions of s 511 of the Act.
Campaigntrack in its submission[10] argued that the Tribunal has the power to extend time for the filing of a claim pursuant to the provisions of s 61 of the QCAT Act, and that Ryton lends no assistance in resolving that issue.
[10] Applicants submissions 18 October 2013 at [7].
It further submitted that:
15.QBSA v Watkins is authority for the proposition that section 61 of the QCAT Act gives the Tribunal the power to extend the time for an applicant to file an application outside of the time permitted in section 86(2)(c) of the QBSA Act, despite that section stating that the tribunal “must not” review such a decision.
16.Given that the wording of section 86(2)(c) of the QBSA Act is more restrictive than section 511 of the PAMDA, and the fact that section 511 of the PAMDA does not place a limitation on the Tribunal in extending time, it is the applicants submissions that the tribunal does have power to extend time in the matter under section 61(2) of the QCAT Act and should apply QBSA v Watkins in the current matter and extend the time in which the applicant is to file its application, if such an order is necessary in the circumstances.
The Chief Executive makes contrary submissions. It submits that:[11]
5.The respondent notes that ss 473 and 511 of the PAMD Act govern the procedural requirements, including time limitations, for an application to extend time within which to lodge a claim against the fund. The respondent submits that pursuant to ss 6 and 7 of the QCAT Act the PAMD provisions are given priority over the generic provisions contained in s61 of the QCAT Act.
[11] Respondents submissions 18 October 2013 at [5].
It further submits that Watkins should be distinguished as follows:
24.The Respondent submits that the decision of Watkins is distinguishable from the current matter before the Tribunal, as there was no overlap between the QCAT Act and the QBSA Act in relation to extension of time provisions. As a result the District Court did not examine the effect modifying provisions have on the QCAT Act. The respondent submits that it is the application of these modifying provisions which render s61 of the QCAT Act inapplicable in this matter.
As Ryton-Benson did not consider the application of an equivalent section to the current s 61 of the QCAT Act, I do not consider that it is determinative in relation to the jurisdiction of this Tribunal. Watkins on the other hand squarely considered the ability of this Tribunal to extend time under s 61. Watkins is also a decision of the District Court, whereas Ryton-Benson was a decision of a single Member of the former Tribunal. I therefore consider that the views expressed in Watkins are more persuasive and to be preferred.
The Chief Executive submits that s 7(2) of the QCAT Act provides that a modifying provision of an enabling Act prevails over the provisions of the QCAT Act, to the extent of any inconsistency between them.
The Act is an enabling Act. The time provision in s 473(5)(b) provides 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
Section 61 of the QCAT Act provides that:
(1)The tribunal may, by order –
(a)extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or
(b)extend or shorten a time limit fixed by this Act, an enabling Act or the rules; or
(c)waive compliance with another procedural requirement under this Act, an enabling Act or the rules.
(2)An extension or waiver may be given under subsection (1) even if the time for complying with the relevant requirement has passed.
The plain wording of s 61 suggests that the Tribunal may allow a claimant to apply to extend the time within which to make a claim, even though the period of 14 days to do so has passed. There is no inconsistency in s 473(5)(b) of the Act as to the Tribunal doing so, and no prohibition as to it doing so.
I therefore consider that a similar situation arises in relation to this Act as to the QBSA Act provisions which were considered in Watkins, and that the tribunal does have jurisdiction to allow an application for extension of time to be made outside the 14 day period.
Should an extension of time to bring the Application be granted?
The Chief Executive has submitted that Campaigntrack have not shown any reasons for not filing the application within 14 days.
Campaigntrack did not “sit on its hands” in the period between when it would have received the Notice out of Time on about 21 September 2012, and the date it filed its application on 15 October 2012.
In that period, Ms McLean deposes that she sent a fax on 25 September 2012 to the Office of Fair Trading indicating her belief that the PAMD Form 50 was actually lodged within the time required, and requesting that the notice be withdrawn.[12] The Office of Fair Trading sent her a reply dated 27 September 2012 advising that the Notice would not be withdrawn.
[12] Affidavit Karen McLean filed 11 January 2013 at [50].
A relevant time period is therefore the time between when the letter from the Office of Fair Trading dated 27 September 2012 would actually have been received by Ms McLean, and the date of filing of the application, which may have been within, or close to 14 days. There has therefore been no significant delay, or a lack of attention by Campaigntrack.
I do not consider that any detriment has been shown to the Chief Executive by the delay of 10 days. However, if the effect of a refusal to extend time is to deny Campaigntrack the opportunity to make a claim for about $330k (or so much as it may claim), then it would suffer obvious and very significant detriment.
I therefore consider that the delay has not been substantial, has been satisfactorily explained, and that it is in the interests of justice that the extension of 10 days should be granted.
I extend the time for the filing of the application to extend time to 15 October 2012.
Was the Claim brought within time?
The Chief Executive noted on the “Claim out of Time Notice” that:
(a)the claim was received on 3 January 2012; that
(b)the date the event alleged to give rise to the claim happened on 2 October 2010; and that
(c)the date that Campaigntrack became aware that it suffered financial loss because of the happening of the alleged event was 3 December 2010.
It therefore concluded that the claim was out of time because it was lodged more than one year after Campaigntrack became aware of its financial loss.
Campaigntrack disagrees with these asserted dates. The date of awareness of financial loss was shown on the Form 50 Claim Form as February 2011. In the Application it argues that the date was 11 August 2011. Campaigntrack says that this means that on either date the Claim was lodged within one year after it became aware of its loss, and was therefore lodged within time.
The Chief Executive has had regard to the commercial dealings between Campaigntrack and the real estate agency. It notes that Campaigntrack entered into a Deed of Acknowledgement of Debt with Galacoast on 31 July 2009. It argues as to the effect of that deed:[13]
19.The Chief Executive notes that the Deed covers a prior debt and future business dealings and stipulates that Galacoast had 30 days from the end of the month in which to settle any issued invoice under the terms of their continued trade. The Deed further stipulates that if a payment is not received or the company was placed into administration Galacoast would be in default of the deed.
20.The Chief Executive submits that given the alleged events relied upon by the applicant the date of awareness of financial loss would have occurred between 3 November 2010, being the date Galacoast failed to pay the invoice within the agreed time frame and the date Galacoast was placed into administration, being 21 December 2010.
21.Further, any event allegedly occurring after 21 December 2010 would be a result of a breach by the receiver and as such is not claimable from the Claim Fund.
[13] Submissions of the Chief Executive dated 7 December 2012.
On this reasoning of the Chief Executive, the date of awareness of the financial loss may have been as late as 21 December 2010, which would mean that the Claim was lodged about two weeks late, but over a period encompassing several holidays (Christmas and Boxing Day, and New Years Day).
Campaigntrack argue that this determination of the date of awareness by the Chief Executive is incorrect and subjective, and is contrary to, and ignores the facts. It responds to the effect of non-payment of invoices, and as to the appointment of a receiver, as follows:[14]
3.7The applicant’s position is that a person does not suffer financial loss or become aware of financial loss when a licensee neglects to pay an invoice by so much as one day, which appears to be the decision-makers position. Non-payment of invoices, or even slow payment of invoices, is a commercial reality that does not equate to financial loss or knowledge of the same as those invoices can be paid at a later date for any number of reasons.
3.8Financial loss only occurs when an invoice will not, or cannot, be paid and a person can only become aware that financial loss has been suffered when he or she becomes aware that an invoice will not or cannot be paid.
…
3.2While it is true that a Receiver and Manager was appointed to the offending licencee on or about 23 December 2010, that Receiver and Manager has no claim to any amounts held in a trust account and that appointment has no effect on the awareness of the applicant that it had suffered financial loss due to the happening of an event mentioned in section 470(1).
[14] Application filed 15 October 2012, Part C details.
In the Application, Campaigntrack argue that it did not gain access to the licensee’s books and records until 11 August 2011, and that was the earliest date they were aware of the event, being the breaches of use of the trust account. It argues it could not have been aware of that event at any time between November 2010 and February 2011.
The date of financial loss is a matter that frequently arises in claims against the fund. It is an issue that often arises in claims against motor dealers. The question there frequently arises as to when the loss occurs where a vehicle is under finance – there may be a number of possible dates, which may include the date of a letter of demand from a financier, or actual repossession of the motor vehicle.
Similarly in this case, the mere non-payment of an invoice may not constitute financial loss. There is a good argument that the financial loss will not crystallise, and the claimant not be aware, until such time as the real estate agent has refused to or failed to make payment after demand. Until that time there may be an entitlement to claim for moneys, but not necessarily any loss.
The appointment of a receiver and manager would not necessarily crystallise a loss. A creditor retains all its rights in administration in respect of a provable debt. Whether the administrator is able to liquidate the assets of the company and pay out the creditors fully is a matter that may not emerge for some time. It is conceivable that a company may be insolvent in the sense of being unable to pay its debts as they fall due, but may be able, upon liquidation of its assets, to pay all of its creditors.
The mere appointment of a receiver and manager therefore would not, on its own, be an event that establishes financial loss.
I am therefore not satisfied that the date of awareness of financial loss was 3 December 2010, or 21 December 2010, as assessed by the Chief Executive.
I am not however persuaded that the relevant date is 11 August 2011, the date that Campaigntrack established there was a breach of the Act, as alleged by it. That date is discrete to the date of financial loss.
To my mind, the date of awareness of financial loss would most likely be the date upon which the Receiver and Manager advised Campaigntrack that it would not be fully paid out on its claim. That is the date when there was an awareness of financial loss.
The Solicitor for Campaigntrack has deposed[15] that a demand for payment of moneys owed by Galacoast to her client was issued on 14 February 2011. On 22 February 2011 she wrote to the receivers and managers providing a copy of the demand. On or about 7 March 2011 she received a response from the Receivers and Managers requesting further information.
[15] Affidavit Karen McLean filed 11 January 2013.
The Receiver and Manager, G R Killer of Grant Thornton, wrote in his letter of 7 March 2011 that:
Based on the records of GPM (Galacoast Property Management Pty Ltd) and GC (Galacoast Pty Ltd), I dispute that your client is owed any money in relation to GPM
That letter sought further information as to any agreements between Campaigntrack and Galacoast Pty Ltd. It did not dispute that any monies were owed by Galacoast Pty Ltd to Campaigntrack. It is clear then, that financial loss as against Galacoast Pty Ltd had not been established as late as 7 March 2011.
Accordingly, even without establishing a precise date of financial awareness of loss, it is apparent that the claim which was filed on 3 January 2012, was well within the twelve month period provided for by the Act.
I therefore do not consider that an extension of time is required.
I propose to adopt the procedure utilised by Dodds J in Crampton Automotive and will refer the claim back to the Chief Executive for the purposes of processing pursuant to s 474 to s 477 of the Act.
For the purposes of procedural clarity as to my having determined the application against proper respondents, I will formally add Galacoast and Mr Gannon as respondents. As I have found that the claim was brought within time, the question of hardship against them under s 511(1)(b) will not arise. As no further steps are therefore required in the Application, and no submissions are required from them, there will therefore be no need to serve them with any material.
Orders
I order that:
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.
2. 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.
3. 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.
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