Keyte v Chief Executive, Department of Justice and Attorney General
[2012] QCATA 238
•15 November 2012
| CITATION: | Keyte v Chief Executive, Department of Justice and Attorney General [2012] QCATA 238 |
| PARTIES: | Robert Douglas Keyte (Appellant) |
| v | |
| Chief Executive, Department of Justice and Attorney General (Respondent) |
| APPLICATION NUMBER: | APL242-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 24 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Dr J R Forbes, Member |
| DELIVERED ON: | 15 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. 2. No order as to costs. |
| CATCHWORDS: | Disciplinary proceedings – estate agent operating without current licence – pleas of guilty in Magistrates Court – no response to application for disciplinary sanction – disciplinary sanction ordered – leave to appeal sought – whether service by post sufficient – whether sanction disproportionate – whether leave to appeal should be granted – whether order for costs appropriate Queensland Civil and Administrative Tribunal Act 2009, ss 32, 92, 93, 100, 102, 142(3) Property Agents and Motor Dealers Regulation 2001 Property, Stock and Business Agents Act 2002 (NSW), s 16 R v White; ex parte Byrnes (1963) 109 CLR 665 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 |
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 (QCAT Act).
REASONS FOR DECISION
Senior Member Oliver
In this matter the Appeal Tribunal consisted of Dr Forbes and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Member Forbes
Robert Douglas Keyte (the Appellant) appeals from a disciplinary sanction imposed on 12 June 2012, on an application by the Respondent (the Department). The Tribunal found the Appellant guilty of numerous breaches of the Property Agents and Motor Dealers Act 2000 (PAMD Act),[1] chiefly by conducting real estate business when he was not licensed to do so. The Tribunal disqualified Keyte from holding a licence or registration under the PAMDA Act for seven years, and from being an executive officer of a corporation similarly licensed or registered for the same period, and imposed a fine of $2,250. The Appellant’s application involves questions of mixed law and fact, so that leave to appeal is required.[2]
[1] PAMD Act, ss 496(1)(g)(i) and 496(1)(g)(iii).
[2] QCAT Act, s 142(3)(b); see also Part "E” of the application.
An application for a stay of the Tribunal’s decision was refused on 20 September 2012.
Prior to the Tribunal hearing, the Appellant appeared in the Magistrates Court at Southport, where he pleaded guilty to 23 offences under the PAMDA Act, and was fined $7,000 and $78.70 costs of court; however, no conviction was entered. No question of double jeopardy arises.[3]
[3]R v White; ex parte Byrnes (1963) 109 CLR 665; Purnell v Medical Board ofQueensland [1999] 1 Qd R 362; R v NG [2007] 1 Qd R 37 at [79].
The notice of appeal alleges that the Appellant “did not receive any notice of any [disciplinary] charges against me and the first I heard of this was after the Tribunal made its decision ... I request ... a fair opportunity to defend myself”.[4]
[4] Application for leave to appeal or appeal filed 23 July 2012 Part “C”.
The Appellant also contends that the sanction imposed by the Tribunal is excessive.
Alleged non-notification of hearing
I shall deal first with the more fundamental of the grounds, namely the alleged failure to notify the Appellant of the primary hearing on 12 June 2012.
The Appellant’s submissions dated 4 September 2012 relate to the second ground of appeal, and will be considered in due course. Apart from a brief statement that “I could not present these facts at the time as I was unaware of the hearing” those submissions do not offer any particulars in support of the complaint that the Appellant was not notified of the primary hearing.
It appears that the Appellant was galvanised by the discovery that his disqualification in Queensland ipso facto disqualified him in New South Wales,[5] despite his declared lack of interest in further work in Queensland.[6] In a telephone call to the Tribunal on 9 July 2012 the Appellant claimed that he “had no idea of what this matter was about ... and wants to know what he has done”. He added that his “ex-wife did not forward any of the [relevant] paper work on”.[7] He repeated those claims in a letter to the Department dated 10 July 2012.
[5] Property, Stock and Business Agents Act 2002 (NSW), s 16(1)(g).
[6]“I operate a small real estate office on the New South Wales side of the border and although at this time I have no interest in obtaining a Queensland real estate licence I am automatically disqualified in New South Wales”: Appellant’s submissions, 4 September 2012, page 4, 3rd last paragraph.
[7] Memorandum of Teresa Daniel, QCAT case manager 9 July 2012.
On 20 March 2012 the Department addressed and posted the originating application, filed on 7 March 2012, to the Appellant at his last known place of residence, 20 Barton Street, Reedy Creek, postcode 4227 (Barton Street).[8] That prepaid postal item was not returned to the Department by Australia Post as undelivered or undeliverable.[9]
[8]Affidavit of service by Emma Louise Rickuss, filed 21 March 2012, annexing “Entity detail” of the Department, extracted on 30 March 2012, showing the Appellant’s residential address as above.
[9] Affidavit of Richard Alexander Danen sworn 17 October 2012.
By order dated 21 March 2012 the Appellant was directed to file and serve a response, documents and witnesses statements, and to apply for an oral hearing, if desired, by 4 pm on 23 April 2012. Absent any such request, the matter would be determined on the papers not before 21 May 2012.
Those directions were posted by the QCAT registry[10] to the Applicant at Barton Street on 21 March 2012, as recorded by the responsible officer on the file. That postal item has not been returned to the registry by Australia Post as undelivered or undeliverable.
[10] QCAT Act, s 92.
Nothing was filed by the Applicant in compliance with the Directions of 21 March 2012, and the Applicant made no request for an oral hearing. The Tribunal then proceeded to decide the matter in the absence of the Appellant, as it was entitled to do.[11] The Department’s application was determined on the papers on 12 June 2012.
[11] QCAT Act, s 93.
A copy of the Tribunal’s decision and orders of 12 June 2012 was posted to the Appellant at Barton Street on 19 June 2012. On or about 26 June 2012, that item was returned to the Tribunal’s registry by Australia Post, marked “insufficient address” and “unknown”.
However, for the purposes of the first ground of appeal it is the alleged non-receipt of the Department’s originating process, and the Directions issued on 21 March 2012 that really matter.
So far as is now material, rule 39 of the Civil and Administrative Tribunal Rules 2009 (the QCAT Rules) states that, unless an enabling Act provides otherwise[12], a document may be “given” to a party by sending it by post to the “relevant address”.[13] When, as in this case, the party has no address for service on the record, the document may be posted to the party’s usual or last known residential or business address[14] – in this case, Barton Street.[15] Proof of service of the originating process is noted in paragraph [9], above.
[12]There is no contrary provision in the PAMD Act or the Property Agents and Motor Dealers Regulation 2001.
[13] Rule 39(1)(b).
[14] Rule 39(2)(b)(i).
[15] See paragraph [9], above.
Service of documents is the subject of sections 39 and 39A of the Acts Interpretation Act 1954 (the AIA). Service by post, as prescribed by rule 39 of the QCAT Rules, is a mode of service recognised in section 39(1)(a)(ii) of the AIA. Section 39A of the AIA goes on to provide that when postal service is permitted, service “is taken to have been effected” when a letter containing the relevant document, properly addressed by prepaid post, “would be delivered in the ordinary course of post”.[16] It is reasonable to infer that a letter enclosing the originating process, posted to Barton Street on 21 March 2012, and a letter enclosing the Directions made on 21 March 2012 posted to the same address on the same day, would both have been delivered thereto, in the ordinary course of post, well before 12 June 2012.
[16] AIA, s 39A(1)(b).
The Appellant states (but has not sworn) that he received no timely notice of the hearing. Unfortunately for that submission the legally significant event is not actual receipt by the addressee, but delivery to the address in question. On that point, the Tribunal is bound by a decision of the High Court of Australia in Fancourt v Mercantile Credits Limited[17]. Fancourt was anticipated by State Supreme Courts in Cousins v Gosford Shire Council[18] and Alexander v Stocks and Holdings (Sales) Pty Ltd[19], and has been dutifully followed by courts in Queensland.[20] It is true that section 39A(1)(b) ends with the proviso “unless the contrary is proved”; if the point were free from authority, it might be argued – and perhaps seem obvious to a layman – that the proviso governs the words “service ... is taken to be effected.” But the point is by no means free from authority. In a joint judgment of five members of the High Court we are instructed:
Despite remarks ... about non-receipt, it [is] non-delivery that [is] significant ... As the present case shows, delivery may be different from receipt by the intended recipient [but] provided that delivery [to the legally prescribed address] is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of post. Here there is no evidence of non-delivery.[21]
[17] (1983) 154 CLR 87.
[18] (1970) 92 WN (NSW) 263.
[19] [1975] VR 843.
[20] Coughlin v Curran [2008] QDC 66; Carolan v Cohen [2011] QDC 103.
[21] (1983) 154 CLR 87 at 97; see also at 95.
The policy appears to be an application of the old adage that hard cases make bad law, reasoning that, on balance, the law as defined in Fancourt is preferable to a situation in which a party, prima facie served by post, could too easily dispute due service by a bare denial of receipt, while the server, too often, might be bereft of direct (or any) evidence to the contrary.
In Wilson, Chief Executive, Department of Transport v Glasgow & Anor[22] Thomas JA was able to distinguish Fancourt, as the regulation before him required the Department to “inform" the licensee. But while QCAT rules 39 and 42 sometimes use the words “give” or “giving” instead of “serve” or “service” that does not advance the Appellant’s case. The AIA[23] treats the expressions “deliver”, “give” and “serve” as synonyms.
[22] [2001] QSC 378 at [24].
[23] AIA, s 39(2).
It follows that, even if the evidence of non-return of the letters containing the originating process and the Directions were subordinated to the Appellant’s unsworn evidence of non-receipt, it would not be open to the Tribunal to hold that the Appellant was denied an opportunity to be heard. Accordingly that ground of appeal must fail, the decision made on 12 June 2012 stands, subject to proportionality of the sanction.
Is the Sanction Disproportionate?
This application for leave to appeal is to be distinguished from an application for review of an administrative decision, which, in the Tribunal, is a fresh hearing on the merits.[24] The present question is whether the sanction in question is so disproportionate to the offences proved, to the sanctions provided by law, and to comparable cases that it involves an appellable error of law or fact which, left undisturbed, would result in substantial injustice to the Appellant.[25] The issue is not whether this appeal Tribunal would have made precisely the same orders as the primary Tribunal, but whether those orders are unreasonable in the sense just described. I do not consider that they are. Where reasonable minds may differ, a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view.[26]
[24] See eg Wiggins v Racing Queensland [2011] QCAT 370.
[25]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350 at [18].
[26]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
At first instance the Department relied upon a decision of the former Commercial and Consumer Tribunal in Chief Executive, DTFTWID v Irvine[27] in which a respondent who unlawfully “lent” his motor dealer’s licence to his unlicensed son for at least two years was disqualified for five years and ordered to pay a fine of $1,875. (I pause to note that, according to Reserve Bank’s Inflation Calculator a payment of $1,875 in 2005, was equivalent to about $2,250 in 2011 – precisely the amount of the present fine.) In this case it has been found that the Appellant “borrowed” his wife’s licence and conducted sales of at least eleven properties after his corporate and his personal licences had expired. In Chief Executive, Office of Fair Trading v Filippini, Penny also known as Filippini[28] Mr Thomas QC dealt with offences of operating without an estate agent’s licence, while an associate provided “cover” for that offence. Although all the offences were admitted, and “there was no dishonesty involved in the course of conduct, no dealing in money or misrepresentations and ... no member of the public was shown to have suffered by reason of the actions”[29] the unlicensed respondent was permanently disqualified, and the “covering” licensee was fined $6,000. The learned Member indicated that he may well have disqualified the latter as well, if the Department had ventured to apply.[30]
[27] [2005] QCCTPAMD 48.
[28] [2009] QCCTPAMD 51.
[29] Ibid at [48].
[30] Ibid at [62].
The Appellant says that when he pleaded guilty to no fewer than 23 offences, none of a merely technical character, he was suffering from a depressive illness, and pleaded guilty merely to “get it over”. In support of that submission he tenders a 3-line letter by a general practitioner, indicating that the Appellant “has had” a major depressive disorder, “has been” taking appropriate medication, which “may have affected [his] judgment at the time”.[31]The meaning of “this time” is ambiguous. It is by no means clear that it refers to the day when the Appellant was before the Magistrates Court. In pleading guilty[32], the Appellant assured the court that he acted of his own free will, and did not require time to seek legal advice.[33] The Tribunal is not at liberty to “go behind” findings of guilt in a court of criminal jurisdiction. While the Appellant did mention his medical condition to the Magistrate, there is no specific reference to it in the decision. Whatever may have motivated the Appellant’s guilty pleas the primary Tribunal could not ignore the considerable strength and cogency of the Department’s case, including admissions made to its investigator.
[31] Burleigh Heads Medical Centre 28 August 2012.
[32][32] On page 2 of his submissions, (1st paragraph) the Appellant states: “At the time of the QCAT hearing I pleaded guilty ...” “QCAT” appears to be a misnomer for the Magistrates Court, rather than an admission of “full knowledge of the Tribunal proceedings” as suggested in the Department’s submissions filed on 12 September 2012, page 4.
[33] Transcript of Magistrate Court proceedings, Southport, 25 March 2011, page 2.
The Appellant submits that he is a “victim [of] the current global economic crisis”, but admits, while denying unlicensed practice, that he “has committed offences”, which he has “never desired to downplay” or to see as “any less than very important”.[34]He points, by way of mitigation, to the fact that he has borrowed money to set up a NSW office, but even if, as he claims, he was not then aware of these proceedings, he knew or should have known that that his admissions to the Magistrates Court in March 2011 were apt to prejudice his prospects of lawfully practising interstate.
[34] Submissions of Appellant 4 September 2012 page 3.
In my opinion the second ground of appeal fails, and leave to appeal should be refused.
Costs
In supplementary submissions filed on 27 September 2012 the Department applies for costs in the amount of $400.
The Department submits that the appeal has obliged it to take “extra steps not ordinarily required ... in conducting disciplinary proceedings”. If this means that appeals in such proceedings are so unusual as to require, in the interests of justice, that costs should normally follow an unsuccessful application, that is a courageous submission, and one that I reject.
The Department also submits that “the Applicant’s application ... [was] not clear, and did not present succinct key points in support of the stay application or appeal.” It is true that the application is inartificially drawn, but that is an occupational hazard in a jurisdiction where unrepresented litigants pullulate. However, the Appellant’s plea that “I did not receive any notice of any charges against me and the first I heard of this was after the tribunal had made its decision” clearly raises a fundamental issue of due process.
It is true that, in the event, that ground of appeal has foundered upon the Fancourt reef – a hazard by no means obvious to voyagers who lack the lifebuoy of legal qualifications. But if that point had been sustainable, the Appellant would undoubtedly have been entitled to a rehearing on sanction as well as liability, irrespective of the apparent strength or weakness of his defence. Although the Appellant’s “due process” point has failed, I do not think that his understandable ignorance of the metaphysics of service by post, or his questioning of the sanction, should expose him to costs in a jurisdiction where such orders are the exception,[35] not the rule[36]. The application for costs is refused.
[35] QCAT Act, s 102.
[36] QCAT Act, s 100.
ORDERS
Leave to appeal refused.
No order as to costs.
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