Storry and Office of Fair Trading (Victoria)
[2021] AATA 5329
•5 October 2021
Storry and Office of Fair Trading (Victoria) [2021] AATA 5329 (5 October 2021)
Division:GENERAL DIVISION
File Number: 2021/6256
Re:Ms Venetia Louise Storry
APPLICANT
Business Licencing AuthorityAnd
RESPONDENT
AndOffice of Fair Trading (Victoria)
OTHER PARTY
Date:5 October 2021
Place:Brisbane
DECISION
Pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review on the basis that the Tribunal is satisfied the application has no reasonable prospect of success.
.............[SGD].......................
Senior Member B. Pola
Catchwords
MUTUAL RECOGNITION – where applicant holds a real estate agent licence in Queensland – where applicant sought and was denied an Estate Agent’s Licence in Victoria under section 23(1)(b) of the Mutual Recognition Act 1992 (Cth) – where applicant provided materially false or misleading information in statutory declarations regarding ongoing disciplinary proceedings in QCAT – interlocutory application for dismissal under section 42B(1)(b) Administrative Appeals Tribunal Act 1975 (Cth) – no reasonable prospect of success
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Agents Financial Administration Act 2014 (Qld)
Judicial Review Act 1991 (Qld)
Mutual Recognition Act 1992 (Cth)
Property Occupations Act 2014 (Qld)Cases
Building Authority v Andriotis [2019] HCA 22
Storry v Chief Executive of Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30
Storry v Department of Justice and Attorney-General – Office of Fair Trading [2020] QCAT 94Theo v Secretary, Department of Family and Community Services [2006] FCA 279
REASONS FOR DECISION
Senior Member B. Pola
5 October 2021
BACKGROUND
1. The Applicant in this matter, Ms Venetia Louise Storry, took over her late father’s real estate business, known as Anthony Storry Real Estate (herein referred to as ‘ASRE’) in December 2016[1]. In 2017, the Applicant registered Storry Real Estate (herein referred to as ‘SRE’) as a corporation and listed herself as sole director and shareholder[2]. SRE registered ASRE as a business name[3] and SRE was registered with a Queensland real estate licence from 26 September 2018[4].
[1] Exhibit R3, ‘QCAT Application for Disciplinary Proceedings – Annexure “B”’, page 1, paragraph 2.
[2] Ibid, page 2, paragraph 5.
[3] Ibid, page 3, paragraph 9.
[4] Ibid, page 4, paragraph 15.
2. In July 2018, the Queensland Office of Fair Trading (herein referred to as ‘QOFT’) received an audit report of the trust account for SRE for the period of January 2017 to December 2017. This report detailed numerous contraventions under the Agents Financial Administration Act 2014 (Qld) and the Property Occupations Act 2014 (Qld)[5]. The QOFT made several decisions with respect to the operation of SRE’s trust accounts and the conduct of the Applicant. With respect to these decisions, the Applicant[6]:
(i)Filed an application for a statutory order of review in the Supreme Court of Queensland on 18 October 2018;
(ii)Filed an interlocutory application for an injunction to stay the decision of QOFT to appoint a receiver over the trust account of ASRE in the Supreme Court of Queensland on 22 October 2018. This was rejected by their Honour Brown J of the Queensland Supreme Court on 25 October 2018; and
(iii)Filed in the Queensland Court of Appeal, an application for a stay of their Honour Brown J’s order on 8 November 2018, which was dismissed by their Honour Martin J on 14 November 2018.
[5] Exhibit R3, ‘QCAT Application for Disciplinary Proceedings – Annexure “A”’, pages 1 to 3; Exhibit R3, ‘QCAT Application for Disciplinary Proceedings – Annexure “B”’, pages 10 to 40.
[6] Exhibit R3. Storry v Chief Executive of Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30, ‘Attachment A – Chronology’, pages 19 to 20.
3. On 21 December 2018, the Applicant filed an application for review of the decisions made by QOFT in the Queensland Civil and Administrative Tribunal (herein referred to as ‘QCAT’), which went to a hearing on 26 March 2020. On 1 April 2020, Member Kanowski ordered that the decisions of QOFT to make the relevant directions be confirmed[7].
[7] Exhibit R3, Storry v Department of Justice and Attorney-General – Office of Fair Trading [2020] QCAT 94, pages 1 to 20.
4. On 1 August 2019, QOFT commenced disciplinary proceedings against the Applicant and SRE in QCAT[8].
[8] Exhibit R3, ‘Application for Disciplinary Proceeding – Annexure “A”’; ‘Annexure “B”’; Exhibit R4, Respondent Statement of Facts, Issues and Contentions, page 3, paragraph 21.
5. On 18 June 2020, the Applicant sought a statutory review pursuant to the Judicial Review Act 1991 (Qld) with respect to the decisions made by QOFT[9]. Several days later, on 24 June 2020, QOFT filed an application seeking to dismiss the Applicant’s application pursuant to section 48 of the Judicial Review Act 1991 (Qld). On 15 July 2020, their Honour Boddice J dismissed the Applicant’s application and ordered the Applicant to pay QOFT’s costs[10].
[9] Exhibit R3, Supreme Court of Queensland – Application for a Statutory Order of Review (BS6586/20), pages 1 to 5.
[10] Exhibit R3, QCAT Application for Disciplinary Proceedings – Annexure “A”, page 20.
6. On 30 July 2020, the Applicant filed an application to appeal the decision made by Member Kanowski of 1 April 2020 in the Supreme Court of Queensland, with the Applicant filing to strike off the disciplinary proceedings initiated by the QOFT on 21 November 2019[11]. On 2 March 2021, their Honours Phillippides, Mullins JJA, and Williams J refused the Applicant’s application for leave to appeal and ordered the Applicant pay QOFT’s costs of the application on a standard basis[12].
[11] Exhibit R4, Respondent Statement of Facts, Issues and Contentions, page 3, paragraph 22.
[12] Exhibit R3, Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30, pages 1 to 20.
7. On 27 April 2021, the Applicant’s application to strike-off QOFT’s application for disciplinary proceedings was also dismissed by QCAT[13].
[13] Exhibit R4, Respondent Statement of Facts, Issues and Contentions, page 3, paragraph 24,
8. On 1 June 2021, the Applicant lodged an appeal of QCAT’s decision to dismiss the Applicant’s application to strike-off disciplinary proceedings initiated by QOFT (on 1 August 2019). The matter is still before QCAT[14].
[14] Ibid, paragraph 25.
9. On 16 July 2021, the Applicant applied to the Business Licensing Authority (herein referred to as the ‘BLA’), for an Estate Agent’s Licence in Victoria through the Mutual Recognition Act 1992 (Cth) (herein referred to as the ‘Mutual Recognition Act’) on the basis she had an equivalent occupation, registered in Queensland[15]. As part of her application, the Applicant submitted an undated, signed and witnessed statutory declaration, which stated[16]:
… 4. I am not the subject of disciplinary proceedings in any State or Territory (including preliminary investigations or action that may lead to disciplinary proceedings) in relation to the occupation(s) listed in my Application…
… 9. I consent to the making of inquiries of, and the exchange of information with, the authorities of any State or Territory regarding my activities in the relevant occupation(s), and otherwise regarding matters relevant to my notice…
… I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declaration Act 1959, and I believe that the statements in this declaration are true in every particular…
[15] Exhibit A1, Administrative Appeals Tribunal Application for Review Form, page 5.
[16] Ibid, Statutory Declaration of Ms Venetia Storry (witnessed by Raymond Arthur Anderson JP), pages 1 to 2.
10. The Respondent has submitted the following with respect to their interactions with the Applicant[17]:
[17] Exhibit R4, pages 6 to 7, paragraphs 41 to 46.
41. On 19 August 2021, the Respondent wrote to the Applicant via letter and advised that the Respondent had received information from the OFT that the Applicant was currently the subject of disciplinary proceedings before the QCAT. The Respondent advised the Applicant that they had reviewed the Applicant’s statutory declaration lodged on 12 August 2021 which declared that the Applicant was not currently subject of any disciplinary proceedings in any State or Territory. The Respondent advised the Applicant that the Respondent intended to refuse the Applicant’s application pursuant to section 23(1)(a) of the MRA, given that it appeared the Applicant had provided false information in the statutory declaration.
42. The Respondent advised the Applicant that it had deferred making a decision in relation to the application and provided the Applicant with an opportunity to withdraw her application, at which stage the Respondent would provide a partial refund of the application fee.
43. On 19 August 2021 at 8:02PM, the Applicant responded to the Respondent’s letter of 19 August 2021 via email and denied providing false information on the statutory declaration. The Applicant stated that the disciplinary proceedings were under appeal and the matter had not been heard or accepted in anyway. The Applicant further stated the grounds for the disciplinary proceedings were not sound, and that the corresponding information provided in her application did not amount to providing false information.
44. On 20 August 2021, the Applicant sent a further email to the Respondent, re-stating that the information provided in the Applicant’s statutory declaration and application form was not false, and that the Applicant had provided a detailed submission to Mr Coyle in relation to the ongoing QCAT proceedings. The Applicant referenced the High Court matter of Victorian Building Authority v Andriotis [2019] HCA 22, and requested that the Respondent reconsider its decision and that it grant the Applicant an estate agent’s licence under the Mutual Recognition principles.
45. On 20 August 2021, a further telephone conversation took place between the Applicant and Mr Coyle. The Applicant advised that:
a. The information provided to the Respondent had also been provided to the Director of Consumer Affairs Victoria and the Ombudsman;
b. The Applicant disagreed with the Respondent’s view that she had made a false declaration;
c. The Applicant queried whether the Respondent had received her two recent emails; and
d. The Applicant was unable to retrieve the information submitted to the Respondent via the Applicant’s MyCAV account and asked for this information to be provided to her.
46. On 23 August 2021, Mr Coyle emailed the Applicant and provided the information that had been provided by the Applicant to the Respondent via the Applicant’s MyCAV account, as requested in the telephone conversation between the Applicant and Mr Coyle on 20 August 2021.
11. On 26 August 2021, the BLA wrote to the Applicant advising that her application for an Estate Agent’s Licence had been refused pursuant to section 23(1)(a) of the Mutual Recognition Act, as the Applicant had provided a materially false or misleading statement with respect to her request for the grant of registration of an Estate Agent’s Licence in Victoria[18].
[18] Exhibit R3, Decision Letter to Applicant from BLA (26 August 2021).
12. On 1 September 2021, the Applicant applied to the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) for an urgent review of the decision of the BLA of 26 August 2021[19].
[19] Exhibit A1, Administrative Appeals Tribunal ‘Application for Review’ Form; Exhibit A2; Exhibit A3, Exhibit A4.
13. The Respondent, through submissions provided to the Tribunal, requested that the Tribunal consider exercising its power pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (herein referred to as the ‘AAT Act’) to dismiss the application for review on the basis that it has no reasonable prospect of success[20].
[20] Exhibit R3, pages 1 to 3; and Exhibit R4, page 12, paragraphs 70 to 74.
14. An interlocutory hearing was held via telephone in Brisbane on 27 September 2021. The Tribunal has considered oral submissions from both the Applicant (who was self-represented) and the Respondent, represented by Mr Thomas Randla and Mr Brayden Hayes of the Victorian Department of Justice and Community Safety. Additionally, the Tribunal has considered submitted evidence as outlined in the Exhibit Register within Annexure 1 of these reasons.
JURISDICTION
15. Decisions made pursuant to Part 3 of the Mutual Recognition Act are reviewable decisions by the Tribunal. Section 34 of the Mutual Recognition Act provides:
34 Review of decisions
(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Part, subsection 42F(3), paragraph 42G(2)(b) or subsection 42M(2).
(2) In subsection (1):
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
(3)If a local registration authority gives a person written notice of the making of a decision referred to in subsection (1), the notice must include a statement to the effect that:
(a)subject to the Administrative Appeals Tribunal Act 1975, application for review of the decision may be made to the Tribunal by a person whose interests are affected by the decision; and
(b)except where subsection 28(4) of that Act applies, application may be made in accordance with section 28 of that Act by or on behalf of that person for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision.
(4) Any failure to comply with subsection (3) does not affect the validity of the decision.
16. The Tribunal is satisfied the BLA provided the Applicant with written notice of their decision to refuse to grant an Estate Agent’s Licence, pursuant to section 23(1) of the Mutual Recognition Act, on 26 August 2021. Therefore, pursuant to section 34(3) of the Mutual Recognition Act, the Tribunal has jurisdiction to review the decision.
ISSUE
17. The issue before the Tribunal arises pursuant to section 42B(1)(b) of the AAT Act, which relevantly provides[21]:
[21] The Tribunal observes the reasons of the Federal Court in Theo v Secretary, Department of Family and
Community Services [2006] FCA 279, [29], that consideration requires, “… a consideration of the merits in the sense that it requires a finding that the application cannot succeed” (citing French J, Duncan v Fayle [2004] FCA 723, paragraph 22).
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or …
18. The power to dismiss an application under section 42B of the AAT Act is available for cases which are, in effect, not going to succeed if the matter proceeds all the way to review. In considering whether to exercise its dismissal power, the Tribunal is mindful of section 2A(b) of the AAT Act, which contemplates a process of Tribunal review that is, “fair, economical, just, informal and quick”.
19. In the present application, the BLA relies on the ground that the Applicant has, “has no real prospects of success”, that is, no reasonable prospect of the Tribunal making a different decision upon review[22].
[22] Exhibit R4, Respondent Statement of Facts, Issues and Contentions, page 12, paragraph 73.
20. If the Tribunal is not satisfied the Applicant doesn't have reasonable prospects of success, in other words, that there is some prospect of success, then the answer is that the Applicant would be permitted to continue with their application for review by the Tribunal.
RELEVANT LEGISLATION
21. Section 17(1) of the Mutual Recognition Act sets out provisions which provide that a person registered for an occupation in one state may be registered in an equivalent occupation in another State after notifying the local registration authority of that second State (relevantly, in the present application, the Office of Fair Trading in Victoria). However, section 17(2) of the Mutual Recognition Act does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State. The Tribunal extracts these provisions below:
17 Entitlement to carry on equivalent occupation
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a) to be registered in the second State for the equivalent occupation; and
(b) pending such registration, to carry on the equivalent occupation in the second State
(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
22. Section 19(1) of the Mutual Recognition Act sets out relevant provisions with respect to registering an equivalent occupation with a second State. The Tribunal extracts these provisions below:
19 Notification to local registration authority
(1) A person who is registered in the first State for an occupation that is equivalent to an occupation in the second State may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle.
(2) The notice must:
(a) state that the person is registered for the occupation in the first State and specify that State; and
(b) state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and
(c) specify each State in which the person has substantive registration for an equivalent occupation; and
(ca) specify each State in which the person has interim deemed registration to carry on an equivalent occupation; and
(cb) specify each State in which the person has automatic deemed registration to carry on an activity covered by the occupation referred to in paragraph (b); and
(d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and
(e) state that the person’s registration (including interim deemed registration and automatic deemed registration) in any State is not cancelled or currently suspended as a result of disciplinary action; and
(f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and
(g) specify any conditions to which the person is subject in carrying on any such occupation in any State.
Note: For paragraph (cb), one or more steps must be taken before automatic deemed registration begins (see subsections 42D(3) and (4)).
(3) The notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person’s existing registration (or, if there is no such instrument, by sufficient information to identify the person and the person’s registration).
(4) As regards the instrument evidencing the person’s existing registration, the person must certify in the notice that the accompanying document is the original or a complete and accurate copy of the original.
(5) The statements and other information in the notice must be verified by statutory declaration or another method agreed to by the local registration authority.
(6) The local registration authority may permit the notice to be amended after it is lodged.
[Tribunal bold for emphasis]
23. Section 20 of the Mutual Recognition Act sets out provisions with respect to the local registration authority of the second State’s entitlement to register equivalent occupations. This section is extracted below:
20 Entitlement to registration and continued registration
(1) A person who lodges a notice in accordance with section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3) Once a person is registered on that ground, the entitlement to registration mentioned in subsection (1) continues, whether or not registration (including any renewal of registration) ceases in the first State.
24. Section 23 of the Mutual Recognition Act sets out the provisions with respect to circumstances where a local registration authority may refuse registration:
23 Refusal of registration
(1) A local registration authority may refuse the grant of registration mentioned in subsection 20(1) if:
(a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or
(c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2) A decision to refuse to grant the registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.
CONSIDERATION
25. In its earlier reasons, the Tribunal referred to two statutory declarations made by the Applicant with respect to her application to the BLA for an Estate Agent’s Licence in Victoria, where she stated she was not subject to disciplinary proceedings at the time of her application. The statutory declarations of the Applicant with these claims can be found in:
(a)her application to the BLA of 16 July 2021, which attached an undated and signed statutory declaration, declared before and signed by a Justice of the Peace (and submitted to the BLA[23]), although during the hearing the Applicant could not recall the exact date this undated statutory declaration was signed[24]; and
(b)a subsequent signed, dated statutory declaration by the Applicant and witnessed by a Justice of the Peace, dated 12 August 2021[25].
[23] Exhibit A1, Email – ‘Your Application for an Estate Agent’s Licence’ (dated 23 August 2021).
[24] Transcript (27 September 2021), page 13, lines 18 to 35.
[25] Exhibit R3, Statutory Declaration of Ms Venetia Storry (dated 12 August 2021).
26. It is evident that the text of the statutory declarations was completed by the Applicant and submitted to the BLA on both occasions to satisfy the requirements of section 19(2) of the Mutual Recognition Act. Crucially, both documents contained a declaration that:
… I am not the subject of disciplinary proceedings in any State or Territory (including preliminary investigations or action that may lead to disciplinary proceedings) in relation to the occupation(s) listed in my Application…
… I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declaration Act 1959, and I believe that the statements in this declaration are true in every particular…
27. When questioned during the interlocutory hearing, the Applicant was asked whether she had been subject to disciplinary proceedings. It was evident to the Tribunal that upon hearing her evidence, her belief was that she was not subject to disciplinary proceedings on the basis that she had sought to appeal the outcome of previously confirmed disciplinary proceedings by QCAT on 1 April 2020. The Tribunal refers to the following exchange[26]:
MR RANDLER: Do you agree that there are ongoing disciplinary proceedings against you in the Queensland Civil and Administrative Tribunal?
MS STORRY: No.
…
MR RANDLER: In relation to the disciplinary proceedings initiated against you by the QCAT - sorry, by the Office of Fair Trading, have those disciplinary proceedings been completely determined? Yes or no?
MS STORRY: They’re under appeal. Nothing can be decided, but in - in - from my perspective and what I understand legally - - -
MR RANDLER: Thank you. Thank you, Ms Storry?
MS STORRY: No, what I understand legally is there is a dismissal application that has been previously accepted on a summary basis and now the dismissal application has gone to a hearing (indistinct) of which is appealed because I believe it’s under a - a dismissal, and I am trying to get a summary basis reinstated - and they - under dismissal. I do not believe there is current proceedings against me. I believe a dismissal is current legally on foot in QCAT.
[Tribunal bold for emphasis]
[26] Transcript (27 September 2021), page 12, lines 24 to 26; lines 44 to 46; page 13, lines 1 to 10.
28. The Applicant’s belief, as detailed by the Tribunal above, was similarly expressed by the Applicant in her written submissions to the Tribunal. For instance, the Applicant stated[27]:
… And Number 4 states “I am not the subject of disciplinary proceedings in any State or Territory (Including investigations or actions that may led to disciplinary proceedings) in relation to occupations (s) listed in my application. I then attached a Queensland and Civil Administrative Appeal Tribunal Directors to my Statutory Declaration. The QCAT matter is under a Strike / Out or Dismissal application (originally accepted as a Summary Strike Out since December 2019. The investigations closed and the Office of Fair Trading attempted to put in disciplinary action but it has been legally under a Strike Out application all this time…
[27] Exhibit A1, Administrative Appeals Tribunal ‘Application for Review’ Form.
29. The Tribunal heard evidence from the Applicant that she had initially interpreted the text of the statutory declaration which had been prepared, with reference to section 19(2) of the Mutual Recognition Act, to mean that she was not subject to disciplinary proceedings in the state of Victoria, the Tribunal refers to the following statement from the Applicant[28]:
…I believe I gave clarification of a question that was otherwise ambiguous. So when I wrote the statutory declaration I looked at the law and I had understood about mutual recognition being about the other State…
[28] Transcript (27 September 2021), page 9, lines 1 to 5.
30. The Tribunal observes that on 1 April 2020, Member Kanowski of QCAT confirmed the decisions of the QOFT to make directions pursuant to section 42 of the Agents Financial Administration Act 2014 (Qld)[29]. Since then, the Applicant has sought to appeal a decision of QCAT to dismiss the Applicant’s strike out application, filed on 1 June 2021.
[29] Exhibit R3, Storry v Department of Justice and Attorney-General – Office of Fair Trading [2020] QCAT 94, pages 1 to 20.
31. The Tribunal is of the view that the Applicant holds an erroneous belief that the proceedings she filed to appeal QCAT’s decision to dismiss her strike out application on 1 June 2021 negates the previously confirmed decision of QCAT with respect to her disciplinary proceedings. This was captured during the following exchange with the Applicant[30]:
So, as far as I’m concerned, the legal grounds on which they’re bringing disciplinary action are not legal. They are yet to be finalised and appealed. They are yet to be finalised on appeal in QCAT. They’re yet to be finalised on appeal in the High Court. The judicial review that they are trying to get me struck off for in the Supreme Court was to be because I was being out of time. However, the whole time QCAT having merit review hearing. So that’s highly questionable. So when I saw that in the statutory declaration, I provided the QCAT appeal application so that the Mutual Recognition Authority, the BLA, would have clarification about what was happening. It would have been ambiguous for me to say that preliminary investigations were happening, that there was a possibility of disciplinary proceedings, when I had already gone through legal processes, and these legal processes were on foot.
[30] Transcript (27 September 2021), page 10, lines 1 to 13.
32. Contrary to the belief held by the Applicant, the disciplinary proceedings have been confirmed and the decision stands until such time as an appeal process is successful. At the time the Applicant made her application to the BLA on 16 July 2021, and until the BLA had made its final decision on 26 August 2021, the evidence before the Tribunal is that an appeal process had not been successful.
33. The Tribunal is satisfied that the two signed statutory declarations, prepared and submitted with respect to the requirements of section 19(2)(d) of the Mutual Recognition Act, inaccurately stated that the Applicant had not been subject to disciplinary proceedings at the time of her application to the Respondent.
34. In the Tribunal’s view, the Respondent was correct to refuse the registration of the Applicant, based on the materially false statements provided by the Applicant, in accordance with section 23(1)(a) of the Mutual Recognition Act.
35. The Tribunal refers to the unanimous decision of the Hight Court in the matter of Victorian Building Authority v Andriotis[31], and in particular to the remarks of their Honours Nettle J and Gordon J, with respect to persons who do not provide truthful statements as required by section 19(2) of the Mutual Recognition Act[32]:
…If the applicant cannot truthfully make the statements required by s 19(2) or provide a true instrument or sufficient information evidencing their registration in the first State, they will be unable to lodge the s 19 notice in the form required, and no entitlement to registration in the second State will arise…
[31] [2019] HCA 22.
[32] Ibid, paragraph 117.
Dismissal of Application
36. The power to dismiss an application pursuant to section 42B of the AAT Act should not be exercised lightly. However, the power exists for a reason: it is wasteful and unkind to persist in a review if the case is, in effect, hopeless. It would be contrary to the objective in section 2A of the AAT Act which contemplates a process of review that is, “fair, economical, just, informal and quick”. In this case, the Respondent relies on the ground that the Applicant has no reasonable prospects of success – that is, she has no reasonable prospect of getting the Tribunal to make a different decision upon review.
37. Upon review of the evidence before the Tribunal, it is clear that the Applicant had been subject to disciplinary proceedings at the time she made her application to the BLA on 16 July 2021, despite stating she had not been subject to such proceedings in two signed statutory declarations. The Tribunal is of the view that the Respondent made the correct decision to refuse the registration of the Applicant, based on the Applicant providing a false statement, in accordance with section 23(1)(a) of the Mutual Recognition Act.
38. Authority from the High Court with respect to the decision of Victorian Building Authority v Andriotis[33] is clear when reflecting on the reasons of their Honours Nettle J and Gordon J. In this instance, the Applicant could not truthfully make the statement as required by section 19(2) of the Mutual Recognition Act, that she was, at the time of making the application to the BLA, not subject to disciplinary proceedings. Accordingly, no entitlement to registration arose for the Applicant in the second State (being Victoria).
[33] Ibid.
39. Therefore, the Tribunal is of the view that it is appropriate to grant the application for dismissal pursuant to section 42B(1)(b) of the AAT Act, as the Applicant’s application has no reasonable prospect of success[34].
[34] With reference to Boswell v Secretary Department of Social Services [2017] AATA 1751, paragraphs 33 to 34.
40. As an aside to this decision, the Tribunal observes that as part of the Applicant’s request for a review of the decision of the BLA, she requested a copy of the documents, or an explanation of the basis upon which the QOFT considers her strike out application to be, “disciplinary proceedings”. The Tribunal observes, for completeness, that the Respondent has complied with the Applicant’s request for this additional information[35].
[35] Exhibit R3, Email from Respondent to Tribunal (dated 14 September, 2021), pages 1 to 4.
DECISION
41. Pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review on the basis that the Tribunal is satisfied the application has no reasonable prospect of success.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
......................[SGD]............................
Associate
Dated: 5 October 2021
Exhibit Register – Annexure 1
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| A1 | Application for Review - Decision record - Further exhibits - Statutory declaration QCAT decisions + transcript | A | Various | 01 September 2021 |
| A2 | Applicant Email to Tribunal | A | 08 September 2021 | 08 September 2021 |
| A3 | Applicant Email to Tribunal | A | 09 September 2021 | 09 September 2021 |
| A4 | Applicant Email to Tribunal (x2) | A | 13 September 2021 | 13 September 2021 |
| A5 | Applicant Email to Tribunal – forward from Office of Fair Trading | A | 14 September 2021 | 14 September 2021 |
| A6 | Applicant Email – Submission on 42B dismissal | A | 15 September 2021 | 15 September 2021 |
| A7 | Applicant Email – Supplementary Submission + Correction Document | A | 15 September 2021 | 15 September 2021 |
| A8 | Applicant Written Submissions | A | 23 September 2021 | 23 September 2021 |
| A9 | Applicant Written Submissions in Reply | A | 24 September 2021 | 24 September 2021 |
| A10 | Applicant Written Submissions – updated | A | 26 September 2021 | 26 September 2021 |
| R1 | Auto-reply email to Applicant | R | 09 September 2021 | 09 September 2021 |
| R2 | Auto-reply email to Applicant | R | 14 September 2021 | 14 September 2021 |
| R3 | Respondent Interlocutory Application – Dismissal under Section 42B - Decision record - Written submissions - Letter & attachments Second Statutory Declaration of A | R | 14 September 2021 | 14 September 2021 |
| R4 | Respondent Written Submissions | R | 23 September 2021 | 23 September 2021 |
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