David Hambleton as joint and several Liquidator of Sky 5 Pty Ltd (in liquidation) v The Chief Executive, Office of Fair Trading Department of Justice and Attorney General
[2014] QCAT 511
•15 October 2014
| CITATION: | David Hambleton as joint and several Liquidator of Sky 5 Pty Ltd (in liquidation) v The Chief Executive, Office of Fair Trading Department of Justice and Attorney General & Anor [2014] QCAT 511 |
| PARTIES: | David Hambleton as joint and several Liquidator of Sky 5 Pty Ltd (in liquidation) (Applicant) |
| v | |
| The Chief Executive, Office of Fair Trading Department of Justice and Attorney General Stanley Gordon Tuxford (Respondents) |
| APPLICATION NUMBER: | GAR243-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 15 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant must file one (1) copy in the Tribunal and give one (1) copy to the Respondents of any further and final submissions and any further material on which the Applicant intends to rely in relation to the application for extension of time filed on 13 June 2013, by: 4:00pm on 7 November 2014. 2. The Respondents must file one (1) copy in the Tribunal and give one (1) copy to the Applicant of any further and final submissions and any further material on which the Respondents intend to rely in relation to the application for extension of time filed on 13 June 2013, by: 4:00pm on 28 November 2014. 3. No party may file any further material other than as provided for in these Directions. 4. The application for extension of time filed on 13 June 2013 is to be set for a one day hearing for the making of oral submissions, but without any oral evidence, at a date to be set at Directions Hearing held for the purpose. 5. The Applicant and the Respondents are both granted leave to attend the Directions Hearing by telephone. 6. The Application is listed for a Directions Hearing in Brisbane at 1:30pm on 12 December 2014 for the purpose of setting a hearing date. |
| CATCHWORDS: | APPLICATION FOR EXTENSION OF TIME – PAMDA – where the Applicant sought an oral hearing of an application for extension of time – where a large claim and difficult matter – where an oral hearing for submissions only was directed – where a claim upon the fund cannot be considered until it is processed in accordance with the Act Property Agents and Motor Dealers Act 2000 (Qld), s 473, s 474, s 475, s 476 |
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
David Hambleton as joint and several Liquidator of Sky 5 Pty Ltd (in liquidation) (‘Hambleton’) lodged claims against the claim fund established under the Property Agents and Motor Dealers Act 2000 (Qld) (the Act) in PAMD Form 50 on 8 April 2013.
The claims were out of time as they were lodged more than one year after the purchasers became aware of their losses on 23 May 2008, and more than three years after the events that caused the financial loss. Mr Hambleton was given an “Out of Time Notice” in Form 52 to that effect.[1]
[1]Property Agents and Motor Dealers Act 2000 (Qld) s 473(5).
On 13 June 2013 Mr Hambleton filed an Application in the Tribunal to extend or shorten a time limit so that the claims lodged on 8 April 2013 could be proceeded with.
I gave Directions on 12 February 2014 that any party seeking an oral hearing of the extension of time application had to apply by 14 April 2104. Mr Hambleton filed an application on 16 April 2014 seeking an oral hearing.
I then gave Directions on 25 May 2014 extending the time for the filing of the application for an oral hearing to 16 April 2014. On 4 June 2014 I gave directions allowing the application filed by Mr Hambleton for an oral hearing of the application filed on 13 June 2013.
There were then further directions given, and at a directions hearing on 15 August 2014 the issue of the manner of hearing was again discussed with Counsel for the parties, and I gave the following direction:
The applicant will file in the registry two (2) copies and give to the respondent one (1) copy of its written submissions about:
(1)whether the application for extension of time should be heard together with the principal application; and
(2)if the application for extension of time is to be heard initially and separately, whether it should be by way of oral hearing or on the papers
I also gave directions for filing of submissions in response and reply.
Mr Hambleton filed submissions on 29 August 2014 by his Counsel, Mr Dickson. He seeks an oral hearing of the extension of time application together with the claim. He submitted amongst other points that:
(a) The application for extension of time remains undecided since June 2013. There is an objective for the Tribunal to achieve informal and quick proceedings consistent with achieving justice.
(b) Mr Hambleton seeks a large sum of money, approximately $200,000.
(c) The application is difficult with extensive material.
(d) The District Court, if hearing this matter, would require an oral hearing of argument on the question of extension of time, and the Tribunal should adopt a similar procedure.
(e) The Tribunal will be assisted on an oral hearing by the representatives, to achieve the correct and preferable decision.
(f) Mr Hambleton will be left without a remedy if the extension of time is not granted, and it follows that he should not be deprived of the procedure which he urges.
(g) It is clear that the Chief Executive opposes an oral hearing of the extension application, but that it will require an oral hearing on the merits of the application for payment out of the fund.
(h) Argument on the extension of time application will heavily centre on the merits of the claim.
(i) There is no inconvenience to the Chief Executive in a hearing together with the claim.
The Chief Executive filed submissions in response on 12 September 2014 by its Counsel, Mr Horton. It seeks that the application for extension of time be heard on the papers first. It submitted that:
(a) There is an objective likelihood of the application for extension of time being refused on the material presently before the Tribunal, principally because there is no adequate explanation for the delay in commencing the proceeding.
(b) The extension of time application can be dealt with without any detailed consideration of the merits of the substantive matter, and can therefore be disposed of relatively expeditiously.
(c) All the evidence on which the parties rely for the extension of time application has been provided in affidavit form, and that material is very limited in scope and volume.
(d) The Act requires that the two questions be separately heard.
(e) No party suggests that oral evidence would be adduced.
(f) Although Mr Hambleton asserts that an oral hearing would permit representatives to assist, the written submissions already deal fully with the relevant matters.
(g) The extension of time point is not a complex one such as might reasonably require oral argument.
The Chief Executive submitted as to the requirements of the Act[2] that the matters be separately heard that:
(a) PAMDA requires the Chief Executive first to comply with s 474 to s 476 before the substantive application is dealt with. Fusing the extension of time with the substantive action allows no opportunity for the Chief Executive to do what s 474 to s 476 require of him. Those procedures could only be activated once (and only if) the necessary extension of time had first been granted;
(b) QCAT too would be acting beyond power, in that s 476(3) requires that a claim be referred to QCAT by the Chief Executive and then (and only then) QCAT is to decide it. This is a prerequisite to QCAT’s jurisdiction to decide the matter. The Chief Executive’s referral occurs only after satisfaction of the steps in s 474 to s 476.
[2]Submissions Chief Executive at paragraph 6.
Mr Hambleton filed submissions in reply on 19 September 2014. He submitted, amongst other points, that:
(a) There had been an adequate application (explanation) for the delay, but that delay is a subordinate matter to the purpose of the fund.
(b) It is agreed that on an application for extension of time, the merits of the substantive matter are relevant, and that scrutiny of the substantive matter will be in greater detail at an actual hearing.
(c) There must be good reason to deprive a party of the opportunity for oral presentation of the argument, and the substantive matter concerns a large sum of money.
Significantly, Mr Hambleton conceded the force of paragraph 6 of the submissions, which were as to the provisions of the Act, and which are set out above.
The Chief Executive must be right in its submission that the substantive claim cannot be processed by it until an extension of time is given; and that the claim cannot be determined until it is processed in accordance with the Act. This involves the giving of notice to the parties and following a claims procedure that is set out in detail in the Act.
There is no discretion to step around the processes of the Act, even though in this case it is almost certain that they will be merely procedural as the reality of the position of the Respondents to the claim as being insolvent, difficult to locate, and most likely unresponsive, has already been demonstrated in related proceedings.
There therefore must be a two stage procedure in this matter – firstly the application for extension of time has to be determined; then if the application is granted, the matter is referred back to the Chief Executive for processing. Once the Chief Executive has conducted the required processing, and if the claim has not been settled, it is then referred to the Tribunal for determination.
The answer to the first question is therefore clearly that the application for extension of time cannot be heard together with the principal application.
The application for extension of time therefore must be heard initially and separately.
The remaining question then is whether the application for extension of time should be heard by way of oral hearing or on the papers.
I am mindful of the need to expedite this matter. The application for extension of time is still unresolved about 16 months since it was filed. In the meantime the matter has been continually progressed through a large number of steps, including the determination by a Judicial Member of the Tribunal of two points of law as to the proper respondents in the proceeding, and several directions hearings with representation by Counsel.
The Tribunal is required to, and makes every effort to, resolve matters as quickly and efficiently as possible. This intent however has to be balanced with the proceedings being conducted in a fair and just manner. Where parties raise valid questions of law or procedure, as has occurred in this matter, then this necessarily involves protraction of the proceedings.
The Chief Executive seeks a determination of the application for extension of time on the papers. It argues that substantial material is already before the Tribunal. There is validity in those submissions.
Mr Hambleton however is strongly seeking an early hearing so that his representatives may make oral submissions to the Tribunal.
Having regard to the large claim involved, and the extensive proceedings to date, I am reluctant to impose a form of determination upon Mr Hambleton with which he is not comfortable, and which he submits would not give him a fair hearing.
The best solution will be to provide for an oral hearing, but to limit it in scope and process, so that it can be conducted expeditiously and economically.
I note that the parties agree that oral evidence is not proposed on a hearing. A short hearing can therefore be provided for, allowing only for oral submissions to address the material.
The parties have already filed submissions in this application. It is possible that they may wish to file one further set of material after consideration of this decision.
I therefore will make directions for the further submission of material and for the matter to be set down for a one day oral hearing for submissions only.
I direct that:
(1) The Applicant must file one (1) copy in the Tribunal and give one (1) copy to the Respondents of any further and final submissions and any further material on which the applicant intends to rely in relation to the application for extension of time filed on 13 June 2013, by:
4:00pm on 7 November 2014
(2) The Respondents must file one (1) copy in the Tribunal and give one (1) copy to the Applicant of any further and final submissions and any further material on which the Respondents intend to rely in relation to the application for extension of time filed on 13 June 2013, by:
4:00pm on 28 November 2014
(3) No party may file any further material other than as provided for in these directions.
(4) The application for extension of time filed on 13 June 2013 is to be set for a one day hearing for the making of oral submissions, but without any oral evidence, at a date to be set at Directions Hearing held for the purpose on a date to be advised.
(5) The Applicant and the Respondents are both granted leave to attend the Directions Hearing by telephone.
(6) The Application is listed for a Directions Hearing in Brisbane at 1:30pm on 12 December 2014 for the purpose of setting a hearing date.
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