Peachey v The Chief Executive, Department of Justice and Attorney-General
[2018] QCAT 250
•1 August 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Peachey v The Chief Executive, Department of Justice and Attorney-General & Anor [2018] QCAT 250
PARTIES:
MARGARET KAY PEACHEY
(applicant)v THE CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
ANTHONY MICHAEL GLIDDON
(respondents)
APPLICATION NO/S:
GAR293-17
MATTER TYPE:
General administrative review matters
DELIVERED ON:
1 August 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Browne
ORDERS:
The application to review a decision filed on 4 October 2017 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) because the time for making the claim has expired for the purposes of s 155(3) of the Agents Financial Administration Act 2014 (Qld).
CATCHWORDS:
ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND –where claim under the Fund was rejected – where application filed to review the decision to reject the claim – where application filed by the decision-maker to dismiss the review application under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether claim lodged out of time – whether power to extend time – whether application to review is misconceived or lacking in substance
Agents Financial Administration Act 2014 (Qld), s 90, s 155(3)
Property Agents and Motor Dealers Act 2000 (Qld) (repealed), s 472, 473, 511
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 47Griggs & Anor v Chief Executive, Department of Justice and Attorney-General & Ors [2018] QCAT 68
Hewitt and Hosking v The Property Agents and Motor Dealers Tribunal and John Gallagher [2003] QSC 101APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
On 10 July 2018, the Tribunal dismissed the application to review a decision filed by Margaret Peachey on 4 October 2017 pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Ms Peachy requested reasons for the decision, now set out below.
Background
In 2014, Ms Peachy toured around Queensland and New South Wales in a caravan. Ms Peachy purchased the caravan from Anthony Gliddon, a person she thought was a motor dealer. Before Ms Peachy set out on her caravan tour, she paid $1,139 to have the caravan repaired to a useable condition. The repairer of the caravan advised Ms Peachy that the wheels and brakes needed to be repaired as did the back window. Ms Peachy was also advised that the safety certificate was falsified.[1]
[1]Application to review a decision filed on 4 October 2018, see Form 1, and claim against the claim fund.
On 13 January 2017, the Department of Transport and Main Road advised Ms Peachy in writing that it had received advice from the Queensland Police Service about investigations of a possible ‘re-birthing’ of her caravan. Ms Peachy was advised not to use the caravan on the road until the police investigation is completed. Ms Peachy was given details of the investigating police officer. Ms Peachy says that this was the first time she was put on notice of any ‘potential financial loss’.[2]
[2]Application to review a decision filed on 4 October 2018, Annexure ‘A’.
Ms Peachy says she telephoned the investigating police officer and was told that there were lots of caravans involved which had been ‘re-birthed’ and that any and all claims for compensation to the Office of Fair Trading would be treated as a group claim. Ms Peachy says she was told that she would be advised by the Office of Fair Trading when to lodge the claim form.
On 17 March 2017, Ms Peachy says she was advised by the investigating police officer that there was over 100 people that had been scammed by Mr Gliddon. Ms Peachy says that she was told not to lodge a claim yet as the Court could award damages and compensation at Mr Gliddon’s trial.
On 28 April 2017, Ms Peachy says that she was advised by the investigating police officer that her caravan had been classed as a statutory write-off and that she should not take it on the road. Ms Peachy says she was required to complete a claim form (to claim under the fund). The claim form was lodged on 17 August 2017.
Ms Peachy’s claim was considered by the Chief Executive, Department of Justice and Attorney-General as a claim against the Claim Fund established under the Agents Financial Administrative Act 2014 (AFA Act). On 6 September 2017, the Chief Executive rejected Ms Peachy’s claim having decided that it is invalid pursuant to s 90 of the AFA Act. Ms Peachy filed an application to review that decision in QCAT.
The Chief Executive later applied to the Tribunal to dismiss Ms Peachy’s application to review on grounds that there is no case in fact or law to answer and the review has no prospects of success.[3] The Chief Executive relies on the Tribunal’s power to dismiss a proceeding under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). Section 47 gives the Tribunal a broad discretionary power to dismiss the proceeding or part of the proceeding if it considers it to be frivolous, vexatious or misconceived; or lacking in substance; or otherwise and abuse of process.[4] The Tribunal may exercise its power under s 47 on the application of a party to the proceeding or on the Tribunal’s own initiative.[5]
[3]Application for miscellaneous matters (to dismiss the application to review a decision) filed on 12 April 2018.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), s 47.
[5]Ibid, s 47(3).
The Chief Executive says that claims that could have been lodged before 1 December 2014 when the Property Agents and Motor Dealers Act 2000 (PAMDA) was in force, but were not, are not automatically accepted as claims against the Fund established by the AFA Act. The Chief Executive says that these claims will need to meet the requirements of s 155(3) of the AFA Act in order to transition to the current Fund. Section 155(3) provides that they can only be accepted if the time allowed for lodging the claim under the PAMD Act (now repealed) has not already expired.
The Chief Executive submits that the time for lodging the claim has expired and because the timeframe for lodging the claim under s 472 of PAMDA cannot be extended and the time has expired, the review is ‘frivolous, misconceived and lacking in substance’.[6]
[6]For the purposes of s 47 of the QCAT Act.
The Chief Executive relies on the decision in Griggs & Anor v Chief Executive, Department of Justice and Attorney-General & Ors[7] that held the correct timeframe to apply is the one set out in s 472 of PAMDA. The Chief Executive contends that Grigg’s case also held that the timeframe in s 472 of PAMDA cannot be extended and once it expires, claims that have not been lodged do not transition to the current Fund and the Tribunal must dismiss them.[8]
[7][2018] QCAT 68.
[8]Chief Executive’s submissions filed on 12 April 2018.
The Tribunal must now consider whether the application to review a decision should be dismissed pursuant to s 47 of the QCAT. I am satisfied that both parties have been given an opportunity to file written submissions and material in relation to the Chief Executive’s application to dismiss and their supporting submissions filed on 12 April 2018.[9]
[9]Tribunal Directions dated 17 April 2018.
Was Ms Peachy’s claim against the Fund made within time under the AFA Act?
The AFA Act replaced its predecessor, PAMDA, on 1 December 2014. Section 155(3) of the AFA Act provides that for claims that could have been made under PAMDA but were not made, may be a claim under the new fund provided the time allowed for bringing the proceeding under PAMDA has not expired. Section 155(3) relevantly provides:
A person who could have made a claim against the former fund but did not make the claim before the commencement may make the claim against the current fund under this Act, if the time allowed for bringing the proceeding under the repealed Act has not expired.
The relevant time for making a claim under the former PAMDA is set out in s 472 which provides:
(1) This section applies to a claim against the fund other than a claim because of, or arising out of, a marketeering contravention in relation to the purchase of a non-investment residential property.
(2) A person may make a claim against the fund only if the person makes the claim within the earlier of the following-
(a)1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in section 470(1);
(b)3 years after the happening of the event that caused the person’s financial loss.
Section 511 of PAMDA enables claimants to seek an extension of the timeframe provided in s 472 and the Tribunal may extend time accordingly only if it is satisfied as to certain matters in exercising its broad discretion. It was recently held in Grigg’s case that the right to apply to the Tribunal for an exercise of discretion to extend time ceased to exist when PAMDA was repealed. In Grigg’s case the Tribunal adopted the reasoning in Hewitt and Hosking v The Property Agents and Motor Dealers Tribunal and John Gallagher[10] and held that the wording of s 155(3) of the AFA Act, in particular the words ‘if the time allowed for bringing the proceeding under the repealed Act has not expired’ does not operate to preserve that right. The relevant paragraph [38] of the Tribunal’s reasons in Grigg’s case is as follows:
In my view, I am bound to apply analogous reasoning in the present case. Section 511 of the PAMD Act conferred a right to apply to the Tribunal for an exercise of discretion to extend the time within which to file the claim. This right ceased to exist when the PAMD Act was repealed. The addition of the words “if the time allowed for bringing the proceeding under the repealed Act has not expired” to s 155(3) of the AFA Act does not operate to preserve that right. It follows that Mr and Mrs Griggs lost their right to apply to the Tribunal to extend the time on 1 December 2014.
[10][2003] QSC 101.
I adopt the Tribunal’s approach in Grigg’s case to the construction and interpretation of s 155(3) of the AFA Act in this case. I find that for the purposes of s 155(3) a person can only make a claim under the current Fund if the time allowed for bringing the proceeding under PAMDA has not expired. I also find that the relevant timeframe for making a claim under PAMDA as set out under s 472 cannot be extended by the Tribunal under s 511 (of PAMDA) because that right ceased to exist when PAMDA was repealed on 1 December 2014.
In this matter, the happening of the event that caused Ms Peachy’s financial loss took place on 18 July 2014 (the date of purchase of the caravan). The date that Ms Peachy says she became aware of her financial loss was on 20 January 2017 or 28 April 2017. As set out above, s 472(2) provides that a person may make a claim against the fund only if the person makes the claim ‘within the earlier of’ 1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event; or 3 years after the happening of the event that caused the person’s loss.
The wording used in s 472(2) is clear and requires a person to submit a claim within the earlier of the provided timeframes. Ms Peachy therefore had until the earlier of the following timeframes within which to make her claim[11]:
(a)18 July 2017, being 3 years after the event occurred; or
(b)20 January 2018 or 28 April 2018, being 1 year after Ms Peachy says she became aware of her loss.
[11]Pursuant to s 473(3) of PAMDA, the claim is made on the day that it is lodged with the Chief Executive.
Because the time limit under s 472 of PAMDA had not expired when that Act was repealed and replaced by the AFA Act, Ms Peachy’s right to make a claim which had arisen under PAMDA continued in existence and the time limit under s 472 continued to apply. The earlier of the timeframes provided under s 472(3) of PAMDA expired on 18 July 2017, being 3 years after the date of purchase of the caravan. Because Ms Peachy lodged her claim after 18 July 2017, the time for making the claim had expired for the purposes of s 155(3) of the AFA Act. I have found that the time for bringing the claim cannot be extended under PAMDA having adopted the approach taken by the Tribunal in Grigg’s case. I find that Ms Peachy’s right to make a claim under the Fund expired on 18 July 2017. Ms Peachy therefore had no grounds to make a claim under the Fund for the purposes of s 155(3) of the AFA Act.
Ms Peachy’s application to review the Chief Executive’s decision is misconceived because there is no grounds for making a claim under the Fund. There is no utility in allowing the review proceeding to proceed in circumstances where the application to review is lacking in substance. Such a course would not be in keeping with the Tribunal’s objectives such as to deal with matters in a way that is, amongst other things, ‘accessible, fair, just, economical, informal and quick’.[12]
[12]QCAT Act, s 3.
For the reasons given above, it is therefore appropriate to dismiss Ms Peachy’s application to review filed on 4 October 2017 on the basis that it is misconceived, lacking in substance or otherwise an abuse of process. I order that the application to review a decision filed on 4 October 2017 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) because the time for making the claim has expired for the purposes of s 155(3) of the Agents Financial Administration Act 2014 (Qld).
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