Robertson v Airstrike Industrial Pty Ltd
[2016] QCA 104
•22 April 2016
SUPREME COURT OF QUEENSLAND
CITATION:
Robertson & Anor v Airstrike Industrial Pty Ltd [2016] QCA 104
PARTIES:
CHARLES ROBERTSON
JANICE ROBERTSON
(applicants)
v
AIRSTRIKE INDUSTRIAL PTY LTD
ACN 116 130 637
(respondent)FILE NO/S:
Appeal No 8075 of 2015
QCATA No 144 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension of Time Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 43
DELIVERED ON:
22 April 2016
DELIVERED AT:
Brisbane
HEARING DATE:
3 February 2016
JUDGES:
Margaret McMurdo P and Morrison JA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The application to extend time to apply for leave to appeal be refused.
2. The applicants pay the respondent’s costs, unless the parties file written submissions as to costs in accordance with paragraph 52 of Practice Direction No 3 of 2013 within seven days.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicants were initially successful in the Queensland Civil and Administrative Tribunal (QCAT) for a claim against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) – where the respondent successfully appealed the member’s decision to the appeal tribunal of QCAT and dismissed the applicants’ claim against the claim fund – where the applicants sought an extension of time for leave to appeal from the decision of the appeal tribunal of QCAT – where the applicants were advised that their prospects on appeal were poor – where the application was filed after almost 17 months after the final decision and the applicants tendered expert psychological evidence as to their functioning over that period – whether the Court should receive expert psychological evidence when a decision had been made not to appeal within time – whether the circumstances were compelling so as to justify an extension of time – whether an appeal would have reasonable prospects of success – whether success on an appeal would be likely to finally dispose of the proceeding, or whether further proceedings before QCAT would be required
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – MISLEADING OR DECEPTIVE: WHAT CONSTITUTES – where the Property Agents and Motor Dealers Act 2000 (Qld) s 574 prohibited false or misleading representations in relation to the sale of property – where the respondent stated that the existing access to a property was a “temporary” arrangement and a nearby street would be extended to provide access, but that there was no “time frame” for the extension – whether this was “false or misleading” and contravened the Act – whether the Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld) obliged the respondent to make inquiries as to the likelihood and timing of the proposed extension
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where any appeal would be required by the Act to be “only on a question of law” – where the appeal tribunal of QCAT dismissed the applicants’ claim because the member’s conclusions at first instance were not open on the evidence – whether a “no evidence” ground of appeal would be an appeal “only on a question of law”
Australian Consumer Law (Cth), s 4, s 18
Criminal Code (Qld), s 24
Property Agents and Motor Dealers Act 2000 (Qld), s 492(2), s 470, s 574
Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld) reg 7, reg 8
Property Agents and Motor Dealers Regulation 2001 (Qld), reg 55(1)
Property Occupations Act 2014 (Qld), s 237
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147, s 150, s 151, s 153
Trade Practices Act 1974 (Cth) s 4, s 51A, s 52, s 53A
Uniform Civil Procedure Rules 1999 (Qld), r 748Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, considered
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62, cited
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13, cited
Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94, cited
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; [1984] FCA 180, cited
Kostas v HIA Insurance Services Ltd (2010) 241 CLR 390; [2010] HCA 32, approved
Maksymiuk v Savage[2015] QCA 177, cited
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31, cited
Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, considered
SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (2014) 314 ALR 35; [2014] FCAFC 50, citedCOUNSEL:
R Clutterbuck for the applicants
R Perry QC for the respondentSOLICITORS:
Hillhouse Burrough McKeown for the applicants
Carter Newell for the respondent
MARGARET McMURDO P: I agree with Jackson J’s reasons for refusing this application to extend time to apply for leave to appeal with costs.
MORRISON JA: I have read the reasons of Jackson J and agree with those reasons and the orders his Honour proposes.
JACKSON J: This is an application to extend time[1] and for leave to appeal to this court from a final decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”), made under s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
[1]Uniform Civil Procedure Rules 1999 (Qld), r 748; see also Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 151(2)(b).
The applicants face four hurdles to the grant of leave.
First, the application to obtain leave is brought out of time. Under s 151(2)(b) of the QCAT Act, the limited period to make an application is 28 days from the relevant day unless this court otherwise orders.[2]
[2]Here the relevant date is the when the written reasons of the appeal tribunal decision were given: s 151(3). The application must be made under the Uniform Civil Procedure Rules 1999: s 151(2)(a).
The final decision of the appeal tribunal of QCAT was given on 21 March 2014.[3] The application for leave to appeal was filed on 14 August 2015, almost 17 months after the final decision was given.
[3]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43. The decision on costs of the appeal tribunal of QCAT was given on 7 August 2014.
Second, the provision for an appeal to this court from a decision of the appeal division of QCAT is limited to an appeal only on a question of law. Section 150 of the QCAT Act provides in part:
“150 Party may appeal—decisions of appeal tribunal
(1)…
(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—
(a)…
(b)the final decision.
(3)However, an appeal under subsection (1) or (2) may be made—
(a)only on a question of law; and
(b)only if the party has obtained the court’s leave to appeal.”
Accordingly, there would be no purpose in granting leave to appeal unless the appeal would be made only on a question of law.
Third, would the appeal have reasonable prospects of success? Those prospects are a relevant factor in the exercise of the discretionary power to grant leave.
Fourth, would success on the appeal be likely to finally dispose of (or lead to the disposition of) the proceeding in the applicants’ favour, or would further proceedings before QCAT be required? Here there has already been a final hearing of the applicants’ claim and an appeal from the decision of the member of QCAT to the appeal tribunal. So there is a public interest in finalising the proceeding.
The decision by the member of QCAT
On 6 March 2013, a member of QCAT made a decision on the applicants’ claim against the claim fund under the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”). The decision was that the fund was liable to pay the sum of $200,000 to the applicants.[4]
[4]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107.
A claim against the fund could be made by a person who has suffered financial loss because the happening of a relevant event.[5] Such a relevant event included a contravention of s 574 of PAMDA.
[5]Property Agents and Motor Dealers Act 2000 (Qld), s 470.
Section 574 of PAMDA provided:
“574 False representations about property
(1)A licensee or registered employee must not represent in any way to someone else anything that is false or misleading in relation to the letting, exchange or sale of property.
Maximum penalty—540 penalty units.
(2)Without limiting subsection (1), a licensee or registered employee must not, in connection with the sale, or the possible sale, of an interest in land or in connection with the promotion in any way of the sale of an interest in land, represent in any way to someone else anything that is false or misleading in relation to—
(a)the value of the land at the date of sale; or
(b)the potential income from the leasing of the land; or
(c)if the land has been previously sold, the date of the sale and the consideration for the sale; or
(d)how the purchase of the land may affect the incidence of income taxation on the buyer.
Maximum penalty—540 penalty units.
(3)Without limiting subsection (1) or (2), a representation is taken, for the subsection, to be false or misleading if it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the representation indicates that that state of affairs does exist.
(4)Also, if a person makes a representation in relation to a matter and the person does not have reasonable grounds for making the representation, the representation is taken to be misleading.
(5)The onus of establishing that the person had reasonable grounds for making the representation is on the person.
(6)It is not a defence to a prosecution under subsection (1) or (2) for the defendant to prove that an agreement with the person was terminated or that the person did not enter into an agreement because of the representation.
(7)This section does not limit another Act or law about false or misleading representations.
(8)In this section—
false or misleading, in relation to a representation includes the wilful concealment of a material fact in the representation.
licensee includes a person acting as a licensee, but does not include a commercial agent.
registered employee includes a person acting as a registered employee, but does not include a commercial subagent.”
At the relevant times, the respondent was a licensee. Graeme Salt was a registered employee of the respondent.
The applicants purchased premises located at Unit 1, 3 Dalton Street, Upper Coomera. The contract was entered into in October 2006. The respondent was the real estate agent of the vendor in the transaction. Mr Salt dealt with the applicants. Settlement occurred in October 2007. The purchase price was $352,000 including GST.
The core of the dispute turned on statements made by Mr Salt in May 2006, before the contract was entered into that:
(a) the existing access to Dalton Street via Kristins Lane was a temporary access road;
(b) Dalton Road would be extended in the future to Days Road; and
(c) he did not have a time frame for the extension.
The applicants alleged that Mr Salt had further said that access via Kristins Lane was a “short term” arrangement. At the hearing before the member of QCAT, however, they accepted that he had not used the words “short term”, but had only said that the access via Kristins Lane was a “temporary” arrangement.
The member of QCAT found that Mr Salt’s statement that the connection to Kristins Lane was a temporary access road was misleading because the applicants were led to believe that the access was temporary and short term until the connection of Dalton Street to Days Road.[6] The member of QCAT found that when Mr Salt spoke to the applicants he should have ensured that he did not use terminology which could lead them into error.[7] The member continued:
“[Mr Salt] should have qualified his statement by at least saying that it was unknown when the connection would occur as it would require other developers to finalise their developments before the road would be connected.”[8]
[6]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [31].
[7]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [31].
[8]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [31].
The member had already recorded that Mr Salt, when asked at the hearing what he told the applicants, had stated that “Dalton Street would be extended in the future across two adjoining properties and we did not have a time frame for it.”[9]
[9]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [19].
Accordingly, the basis for finding that Mr Salt should have said that it was unknown when the extension would occur was unclear. On the face of it, that is what the statement that “we did not have a time frame for it” meant. So viewed, the finding that Mr Salt’s statement was misleading seems to have depended on the proposition that Mr Salt failed to say that other developers would be required to finalise their developments before Dalton Street would be extended.
The member considered whether a finding of contravention of s 574 was answered by a defence under s 24 of the Criminal Code as there was an honest and reasonable mistake of fact.[10] As part of that consideration, the member referred to a defence based on a “reasonable expectation, as at mid-2006, that the connection of Dalton Street to Days Road would be effected and he had no basis to conclude that the conditioning of the development of the adjoining sites would be a problem and so that the Kristins Lane entrance would be temporary.”[11]
[10]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [32].
[11]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [33].
The member of QCAT found that Mr Salt had no grounds to believe that the extension would occur at any particular time as the developer of the estate had no control over the completion of the connecting road from Dalton Street to Days Road. He held, therefore, that Mr Salt had no honest and reasonable belief that the extension of Dalton Street to Days Road would occur in the short term “and so the defence is not made out.”[12]
[12]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [34].
The member of QCAT decided that the applicants were entitled to a payment from the fund in the maximum amount of $200,000.[13] He also decided that the respondent, the respondent’s director and Mr Salt were jointly and severally liable to reimburse the fund.[14]
[13]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [42], [48]. See Property Agents and Motor Dealers Act 2000 (Qld), s 492(2) and Property Agents and Motor Dealers Regulation 2001 (Qld), reg 55(1).
[14]Robertson v Airstrike Industrial Pty Ltd [2013] QCAT 107, [47].
The decision of the appeal tribunal
The respondent appealed from the member’s decision to the appeal tribunal of QCAT. A party to a proceeding in QCAT may appeal to the appeal tribunal if a judicial member did not constitute the tribunal in the proceeding.[15]
[15]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1).
Under ss 142 and 146 of the QCAT Act, appeals to the appeal tribunal are divided into appeals on a question of law only,[16] and appeals from a decision on a question of fact only or a question of mixed law and fact.[17] In the latter category, an appeal may only be made if leave to appeal is obtained from the appeal tribunal.[18] It is expressly provided that an appeal of that kind must be decided by way of rehearing.[19]
[16]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146.
[17]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(1).
[18]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b).
[19]Queensland Civil an Administrative Tribunal Act 2009 (Qld), s 147(2).
On the other hand, where an appeal is on a question of law only, there is no statutory requirement that the appeal must be decided by way of rehearing.[20] It may be that such an appeal is an appeal “stricto sensu”, for the purposes of the distinction drawn between appeals of that kind and appeals by way of rehearing,[21] but that point was not argued in the present case.
[20]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146.
[21]Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, 128 [2]; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619-622.
On 21 March 2014, the appeal tribunal allowed an appeal from the member of QCAT’s decision.[22] In substitution for the decision made by the member, the appeal tribunal dismissed the applicants’ claim against the claim fund.
[22]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43.
The essential reasoning for the appeal tribunal’s decision was that the only conclusions that could be drawn from the conversations between Mr Salt and the applicants viewed as a whole were that the Kristins Lane access was temporary, that Dalton Road would be extended to Days Road in the future and that there was no time frame for that extension.[23]
[23]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, [45]-[54].
The appeal tribunal held that the conclusions of the member were not open on the evidence before him.[24] That error constituted an error of law for which leave to appeal was unnecessary.[25]
[24]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, [54].
[25]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, [54].
Grounds of the proposed appeal
The grounds of the proposed appeal focus upon the distinction between the provisions for deciding an appeal from a member of QCAT to the appeal tribunal on a question of law only and the provisions with respect to other appeals.
Sections 146 and 147 provided as follows:
“146 Deciding appeal on question of law only
In deciding an appeal against a decision on a question of law only, the appeal tribunal may—
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
(i)with or without the hearing of additional evidence as directed by the appeal tribunal; and
(ii)with the other directions the appeal tribunal considers appropriate; or
(d)make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
147Deciding appeal on question of fact or mixed law and fact
(1)This section applies to an appeal before the appeal tribunal against a decision on a question of fact only or a question of mixed law and fact.
(2)The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
(3)In deciding the appeal, the appeal tribunal may—
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision.”
The distinction between different kinds of appeal under ss 146 and 147 is similar to the distinction made under ss 142 and 146 previously mentioned. The purpose of the distinction is to restrict some appeals. An appeal under s 142(1) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal’s leave to appeal under s 142(3)(b). However, leave is not required for an appeal against a decision on a question of law only.
In the present case, the respondent applied to the appeal tribunal for leave to appeal under s 142(3)(b). However, as stated above, the appeal tribunal found that because the conclusions of the member of QCAT were not open on the evidence, the error of the member constituted an error of law and leave to appeal was unnecessary.[26] The appeal tribunal was purporting to act under s 146, not under s 147.
[26]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, [54].
An appeal to the Court of Appeal on a question of law only
Section 150(3) of the QCAT Act has the effect that an appeal to this court from the final decision of the appeal tribunal may be made “only on a question of law” and by this court’s leave.
In the material filed in support of the application, the applicants did not identify how their proposed appeal would be one only on a question of law. There is authority that says they should have done so.[27]
[27]Maksymiuk v Savage [2015] QCA 177, [5].
Section 153 of the QCAT Act provides:
“153 Deciding appeal on question of law only
(1)This section applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of law only.
(2)In deciding the appeal, the Court of Appeal may—
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter to the tribunal for reconsideration—
(i) with or without the hearing of additional evidence as directed by the court; and
(ii) with the other directions the court considers appropriate; or
(d)make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
(3)If the Court of Appeal returns the matter to the tribunal for reconsideration, the court must give directions about whether or not the tribunal reconsidering the matter must be constituted by the same persons who constituted the tribunal when the decision was made.”
In oral argument, the applicants were pressed to identify the questions of law that would be the subject of the appeal. They identified two questions. First, that it was not open for the appeal tribunal to proceed to decide the case under s 146 of the QCAT Act, because the respondent had applied for leave to appeal to the appeal tribunal on the grounds available under s 147. Accordingly, the appeal to the appeal tribunal was not an appeal “on a question of law only” within the meaning of s 146. Second, because the appeal tribunal made its decision on the ground that the conclusions reached by the member of QCAT were not open on the evidence, and that constituted an appeal on a question of law,[28] an appeal against that conclusion to this court would be an appeal “only on a question of law” within the meaning of s 150(3).
[28]See for example Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410, 415 [13]–[14]; Maksymiuk v Savage [2015] QCA 177, [7].
At least the second of these contentions is sound, in my view. For present purposes, it is best to proceed on the footing that if leave to appeal were granted it could be confined to an appeal on that question only.
I reach that conclusion because a “no evidence” ground of appeal or review is usually characterised as a question of law, rather than a question of fact or mixed question of fact and law. As was said in Kostas v HIA Insurance Services Ltd:[29]
[29](2010) 241 CLR 390.
“It is sufficient, for present purposes, to determine that the ground usually described as a ‘no evidence ground’ raises a question of law. And the first respondent accepted that a no evidence ground may form a basis for a statutory appeal under s 67(1). The first respondent further submitted, however, that whether ‘there was sufficient evidence before the Tribunal such that a ‘no evidence’ submission could not be made … is a factual question rather than the identification of a decision of the Tribunal of a question with respect to a matter of law’.
The first respondent’s further submission should be rejected. Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal’s factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding. As Dixon CJ said in Gurnett v Macquarie Stevedoring Co Pty Ltd [No 2]:
‘… in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.’
A tribunal that decides a question of fact when there is ‘no evidence’ in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law...”[30] (footnotes omitted)
[30](2010) 241 CLR 390, 418 [90]-[91].
Delay
Section 151(2)(b) of the QCAT Act provides that an application for leave to appeal must be made within 28 days after the relevant day, unless the Court of Appeal orders otherwise.
The respondent raised two points about delay. First, that the applicants’ delay has been significant and is inadequately explained. Second, that the delay is so great that the respondent will likely suffer prejudice if the proceeding were remitted for further hearing of evidence. It will be remembered that the relevant events occurred between May 2006 and October 2007.
Following the decision of the appeal tribunal on 21 March 2014, the applicants sought advice as to the prospects on appeal within the statutory period to start an application for leave to appeal. The advice they received was that the prospects were poor. That was a factor which informed their decision not to make an application at that time.
In October 2014, the applicants sought advice about the prospects of bringing a claim against the vendor of the land. At that time, they were advised there was a possible error in the appeal tribunal’s decision for which they might obtain leave to appeal. However, again, the applicants decided not to bring an application for leave to appeal at that time.
From April 2015, steps were taken towards preparing or bringing this application for leave to appeal. It was ultimately filed on 14 August 2015. The delay was contributed to by financial constraints. From the female applicant’s perspective, ill health was also an issue between at least 6 February 2015 and 8 April 2015.
Apparently in response to the respondent’s submissions as to delay based on the abovementioned facts, the applicants obtained and sought leave to tender further evidence in explanation of their delay.
An affidavit of the applicants’ solicitor exhibited two reports by a psychologist, one for each of the applicants. The maker of the reports expressed opinions about the applicants’ functioning during the period between 21 March 2014 and 13 August 2015.
As to the male applicant, the psychologist refers to “the approximate three week period”, apparently meaning the period during which time ran to start an application for leave to appeal. Of that, the psychologist opined that the male applicant’s symptoms of sleep disturbance of middle insomnia, pronounced uncontrollable worry, mood disturbance characterised by irritability, anger and sadness and periods of crying, inter alia, appeared likely to have significantly reduced his capacity to “appropriately respond within the appeal timeframe and indeed subsequent timeframe to seek new advice.”
With all respect, in my view, a report of a psychologist as to matters such as these will not often be of assistance. The reasoning just described seems to contain a premise that the male applicant’s decision not to bring an application for leave to appeal in April 2015 was in some way impaired. On the contrary, in my view, he obtained counsel’s advice that the prospects were poor and acted on that advice. Most people would consider that a rational and prudent response. That another lawyer later expressed a contrary view does not alter the fact that the initial decision was made rationally or prudently.
No doubt litigation is stressful to parties. It may be expected to be more stressful for the unsuccessful party. But there is no real basis disclosed that suggests that the male applicant was unable to give instructions or to absorb the advice which he was given after the decision of the appeal tribunal.
In most cases, the courts should not be subjected to explanation and excuse based on expert psychological evidence as to the relative impacts upon one person or another of these stresses, where for one reason or another a conscious decision has been made not to pursue an appeal within time.
In any event, the courts must also be concerned with the functioning of their own systems. As previously stated, the QCAT Act provides that the time limit for the bringing of an application for leave to appeal to this court is 28 days unless this court extends the time.
In a case like this, that time limit and power to extend apply in the context that, first, there has already been a hearing before and a final decision by a member of QCAT. Second, there has been a hearing and final decision by an appeal division of QCAT exercising appellate jurisdiction. A further appeal to this court, if leave is granted, is a second appeal.
In this context the importance of finality pervades the law. As the High Court put it in D’Orta-Ekenaike v Victoria Legal Aid:[31]
“The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called ‘fresh evidence rule’) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe ‘[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial’.” (footnotes omitted)
[31](2005) 223 CLR 1, 17 [35].
Without purporting to fetter the width of the discretionary power to extend time, in a case such as this, when the period of extension sought is more than a year, the circumstances must be compelling.
In my view, those circumstances are not to be found in the psychologist’s evidence which is sought to be tendered in support of the application in this case. Although I would allow the applicants to rely on the evidence contained in the reports, in my view, it does not make the difference needed for the requested extension.
Prospects on appeal
It was not suggested that the proposed appeal raises any important point of principle or unresolved question as to the proper construction of PAMDA. In any event, that Act is now repealed,[32] although there are other comparator provisions.
[32]Property Occupations Act 2014 (Qld), s 237. The replacement provisions in that Act relate only to residential property.
The narrow point of an appeal would be whether it was an error of law for the appeal tribunal to conclude that there was no evidence to support the QCAT member’s findings that Mr Salt’s representations were false or misleading.
The strength of an appeal on that question alone would depend on whether there was some evidence to support the member’s findings.
Would an appeal finally resolve the dispute?
However, even if the applicants succeeded on an appeal on that question alone, nothing more would be decided than that there was some evidence to support the member’s conclusions or findings for his decision.
It would still be necessary either for this court to consider the respondent’s application for leave to appeal and appeal under s 147 of the QCAT Act further, or to remit the proceeding for further hearing to the appeal tribunal of QCAT. The appeal tribunal might give leave under s 147 and exercise the powers of appeal under that section by way of rehearing. If it did so, it might reach the same or a similar substantive conclusion on the facts as was reached in the decision appealed from. In other words, a successful appeal to this court might well end in the same substantive result - that the respondent’s appeal to the appeal tribunal is allowed and the originating proceeding in QCAT is dismissed.
That possibility shows that it is appropriate to consider briefly the strength of the parties’ positions on the underlying question as to whether Mr Salt contravened s 574 of PAMDA.
I put to one side some of the procedural problems that would attend a further hearing of the respondent’s substantive appeal to the appeal tribunal on that question. They include that before the member of QCAT, the applicants’ case was conducted on the footing that “Mr Salt never gave any express representation as to the time when Dalton Road would be connected to Days Road”[33] but before the appeal tribunal of QCAT the applicants’ counsel may have abandoned a case based on contextual silence.
[33]That allegation was inaccurate, in any event. As previously stated, Mr Salt expressly said that “… we did not have a time frame for it”.
In oral argument, the parties explored their respective positions on the question of substance as to whether Mr Salt contravened s 574 of PAMDA. The applicants submitted that the correct approach was informed by the reasoning deployed in the decision of the member and in argument before the member and the appeal tribunal. That reasoning proceeded by analogy with the cognate concepts that underpin the operation of what were ss 52 and 51A of the Trade Practices Act 1974 (Cth) (“TPA”) and their present counterparts in ss 18 and 4 of the Australian Consumer Law.
But there are potentially important differences between s 574 of PAMDA and former ss 52 and 51A of the TPA. First, s 52 prohibited a corporation from “engag[ing] in conduct that is misleading or deceptive or likely to mislead or deceive”. What amounted to engaging in conduct was defined in s 4(2)(a) of the TPA. Section 52 did not provide that a person must not “represent” anything that is false or misleading. Second, there was no definition, for the purposes of s 52, that equated to the definition of “false or misleading” in s 574(8). Third, there was no provision, for the purposes of s 574, that operated so that a representation as to a future matter “shall be taken” to be misleading in the way that s 51A of the TPA provided. In the absence of such a provision, “[a]n expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.”[34] Fourth, a contravention of s 574 was an offence, whereas a contravention of s 52 was not.
[34]Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82, 88; followed in SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (2014) 314 ALR 35, 40-41 [17]-[21].
There was no close analysis of these differences or any relevant principles of statutory interpretation that applied to the proper construction of s 574 that informed the decisions below. Nor did either of the parties refer to the closer textual similarities of s 53A of the TPA to s 574, in comparison to s 52 of the TPA.
It would be inappropriate to consider any of these points further, as the respondents did not rely on any distinction between the meaning of s 52 of the TPA, as construed by the case law, and the meaning and operation of s 574 of PAMDA. But if this court were called on to consider the operation of s 574 of PAMDA as a matter of law, it would not simply be a matter for the parties’ agreement that it equates to s 52 of the TPA.
Another notable feature was that to the extent that the reasoning and the arguments below proceeded by reference to cases as to the operation of s 52 (and s 51A) of the TPA in a case based on contextual silence, neither of the parties referred to the current leading High Court case on the point, Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd.[35]
[35](2010) 241 CLR 357.
The reasoning of the appeal tribunal was founded on the proposition, that cannot be gainsaid, that any representation made by Mr Salt about the likelihood or timing of the connection of Dalton Street to Days Road must be considered in the light of the whole of what he said to the applicants. The applicants’ contention was that Mr Salt’s statement that the access from Kristins Lane was “temporary” was misleading because “Mr Salt did not qualify his statement by saying it was unknown when the connection [from Dalton St to Days Road] would occur”.[36] The appeal tribunal rejected that because of the appeal tribunal’s acceptance that “Mr Salt said there was no timeframe for the connection.”[37]
[36]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, [49].
[37]Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43, [49].
In my view, the essential reasoning supporting the appeal tribunal’s conclusions remains unchallenged, except for the applicants’ submission that Mr Salt was obliged, because of the provisions of the (now repealed) Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld) (“Code”), to make inquiries that would have informed the likelihood and timing of the proposed extension of Dalton Street to Days Road and to advise the applicants of the information that those inquiries would have revealed. In particular, the applicants relied on s 7 of the Code that provided:
“7 Honesty, fairness and professionalism
(1)A real estate agent must act honestly, fairly and professionally in the conduct of a real estate agency practice.
(2)Without limiting subsection (1), a real estate agent must treat a customer honestly and fairly.”[38]
[38]As defined, the applicants were customers: Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld) s 3 (definition of “customer”).
In my view, reliance on s 7 does not advance the applicants’ case. The case against Mr Salt and the respondent was not one of dishonesty. It was also not a case of unfairness in the sense of sharp practice. In substance, it was one where the contention sought to be advanced was that Mr Salt was obliged to act to protect the interests of the applicants, even though they were not the respondent’s client but prospective purchasers.
As to that, the applicants also relied on s 8 of the Code. It provided:
“8 Skill, care and diligence
(1)A real estate agent must exercise reasonable skill, care and diligence in the conduct of a real estate agency practice.
(2)A real estate agent must complete all work for a client as soon as is reasonably practicable.”
In my view, reliance on s 8 also does not advance the applicants’ case any clear distance. Mr Salt did not owe a duty of care to the applicants. Any duty of care was owed to the respondent as the client. Section 8 of the Code, on its face, did not obviously oblige Mr Salt to act to protect the interests of the applicants who were not clients. But even if it did, in my view, it did necessarily not inform the meaning or application of s 574.
Accordingly, without coming to any concluded opinion on the merits of the proposed appeal, the applicants’ submissions did not persuade me that the applicants would enjoy a substantial prospect or likelihood of success on the underlying appeal, if leave to appeal were granted.
Conclusion
For these reasons, in my view, the application to extend time for leave to appeal should be refused with costs, unless the parties file written submissions as to costs in accordance with paragraph 52 of Practice Direction No 3 of 2013 within seven days.
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