Peterson Valuation Services v Valuers Registration Board of Queensland

CITATION:

Peterson Valuation Services v Valuers Registration Board of Queensland [2015] QCATA 12

PARTIES:	Peterson Valuation Services (Applicant/Appellant)
v
Valuers Registration Board of Queensland (Respondent)

APPLICATION NUMBER:

APL531-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Deputy President Stilgoe OAM

DELIVERED ON:

27 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to stay the tribunal’s decision of 6 November 2014 is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL –OCCUPATIONAL REGULATION – where disciplinary proceedings – where valuer’s registration cancelled – where appeal – where application for stay – whether grounds for stay

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Legal Services Commissioner v Madden [2008] QCA 52
Leach v Chief Executive, Department of Justice and Attorney-General [2012] QCATA 271
Jaravaza v Medical Board of Australia [2013] QCAT 44

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

Phillip Peterson, a valuer, trades under the name Peterson Valuation Services. On 6 November 2014, the tribunal found that Mr Peterson had engaged in incompetence or negligence in his performance as a valuer. As a consequence, the tribunal cancelled Mr Peterson’s registration for a period of 6 months.
Mr Peterson has filed an application for leave to appeal or appeal. He has also filed an application for a stay of the decision. These reasons deal with the application to stay the decision.
To succeed in his application, usually, the tribunal must consider four factors[1]:
a)    Is there a good arguable case on appeal?
b)    Will Mr Peterson be disadvantaged if a stay is not ordered?
c)    If the stay is granted, will the competing disadvantage to the Board outweigh the disadvantage suffered by Mr Peterson if the stay is not granted?
d)    Will success on the appeal be rendered nugatory if no stay is granted?
[1]Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [8].
Because this is an appeal from a disciplinary proceeding, I should also consider the factors considered by a tribunal in an application to stay disciplinary proceedings under review.[2]
[2]Leach v Chief Executive, Department of Justice and Attorney-General [2012] QCATA 271.

Good arguable case on appeal

Mr Peterson has five grounds of appeal. All except one ground take issue with the way the learned Member dealt with the evidence. Mr Peterson submits that, in excluding evidence of the South East Queensland Regional Plan, the learned Member failed to provide procedural fairness. He submits that the learned Member failed to consider relevant evidence, that he erred in dismissing Mr Sommerville’s evidence and that the learned Member did not consider all relevant evidence when making his decision.
It is necessary to put these submissions into context. Mr Peterson valued a series of blocks in Red Oak Drive Tallai, at the request of the owner. He valued them on the assumption that the blocks could be subdivided. The expert evidence before the learned Member suggested that Mr Peterson had relied too heavily on information from his client and that he did not conduct the necessary inquiries about the subdivision.
Whether or not the properties could be subdivided was not the issue before the learned Member. The issue was whether Mr Peterson took sufficient care to investigate the possibility of subdivision. Mr Peterson’s criticism of the evidence goes to the former question – whether the blocks could be subdivided – not whether Mr Peterson acted appropriately. I therefore consider Mr Peterson has very poor prospects on appeal.

Will Mr Peterson be disadvantaged if the stay is not ordered?

If the stay is not ordered, Mr Peterson will not be able to work as a valuer. That is a natural consequence of the learned Member’s order. In disciplinary proceedings, the party’s personal circumstances are not usually sufficient to warrant granting a stay.[3] They are no more than any valuer would experience by the imposition of those sanctions[4].
[3]Legal Services Commissioner v Madden [2008] QCA 52.
[4]Jaravaza v Medical Board of Australia [2013] QCAT 44 at [28].
Mr Peterson has not pointed to any other disadvantage. I am not persuaded that this factor, by itself, is sufficient to grant a stay.

The competing disadvantage to the Board

The Board has an obligation to protect the public. Given that the events the subject of the disciplinary proceedings occurred in 2005, that horse has probably bolted. This is not a ground to refuse a stay.

Will the appeal be rendered nugatory if the stay is not granted?

The principle that a stay should be granted if the appeal is rendered nugatory appears in cases involving private litigation. In cases where there is a public interest in the outcome, there is no presumption that the principle applies[5].
[5]Legal Services Commissioner v Madden supra at page 6, 7.
It is likely that Mr Peterson will have served his period of cancellation by the time the appeal is heard. Having said that, the tribunal will endeavour to expedite the hearing to avoid that unfortunate potential.
As I have formed the view that Mr Peterson has poor prospects on appeal, the fact that the penalty will have been served is not a sufficient ground to grant a stay. A successful appeal may provide other benefits to Mr Peterson; the reprimand might be removed and his otherwise clear professional record be restored.
For these reasons, and given the public interest nature of the proceedings, I am not minded to grant the stay.

Peterson Valuation Services sought leave to appeal against a decision by the Valuers Registration Board of Queensland to cancel their registration. The decision arose from disciplinary proceedings initiated by the Board following an investigation into alleged breaches of the Valuation, Bushfire Management and Other Industries Act 2005. The Board found that the respondent had contravened the Act by engaging in misleading and deceptive conduct, which led to the cancellation of their registration. The primary issue before the court was whether there were grounds to grant the applicant leave to appeal the tribunal’s decision.

The court considered the applicant's grounds for appeal, which were primarily focused on the tribunal's interpretation of the legislation and its application to the facts of the case. The applicant argued that the tribunal had misapplied the law, leading to an unjust outcome. However, the court found that the tribunal had correctly interpreted and applied the relevant statutory provisions. The court also considered whether there were exceptional circumstances that would warrant granting leave to appeal, but concluded that there were none. The court noted that the tribunal had conducted a thorough review of the evidence and had reached a decision that was supported by the material before it.

The court refused the application to stay the tribunal's decision, finding that there were no grounds for leave to appeal. The decision to cancel the respondent's registration stood, and the applicant was not granted leave to appeal. This decision reinforced the importance of tribunals correctly interpreting and applying the law in disciplinary proceedings, and highlighted the high threshold that must be met for an appeal to be granted. The court's decision also underscored the principle that tribunals have a degree of discretion in determining whether to grant leave to appeal, and that this discretion should be exercised carefully and judiciously.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established