Storry v Department of Justice and Attorney-General - Office of Fair Trading
[2021] QCAT 435
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Storry v Department of Justice and Attorney-General – Office of Fair Trading & Ors [2021] QCAT 435
PARTIES: VENETIA STORRY (Applicant)
v
DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL – OFFICE OF FAIR TRADING
THE EXECUTOR OF THE ESTATE OF JOHN ANTHONY STORRY
KEITH GRAHAM NORMAN
JACLYNNE STEAD NORMANKAMBOS PTY LTD
MICHAEL DALLAS LEAN
SORAYA ANNELLS
GALLPEN HANDYMAN SERVICES (ANDREW LEONARD GALLPEN)
PAUL BRIAN ANNELLS
MERCANTONIO SERMOSI
SCIENCE HOUSE PTY LTD
THE PUBLIC TRUSTEE OF QUEENSLAND (KERRY ALAN TREMAIN)
(Respondents)
APPLICATION NO/S:
GAR 248-19
GAR 249-19
GAR 250-19
GAR 251-19
GAR 252-19
GAR 254-19
GAR 255-19
GAR 256-19GAR 257-19
MATTER TYPE:
General administrative review matters
DELIVERED ON:
16 December 2021
HEARING DATE:
15 November 2021
HEARD AT:
Brisbane
DECISION OF:
Member Paratz AM
ORDERS:
DIRECTIONS
1. The name of the Respondent currently named as:
John Anthony Storry (Deceased) t/as Anthony Storry Real Estate
is amended in each of the following files:
GAR 248-19, GAR 249-19, GAR 250-19,
GAR 251-19, GAR 252-19, GAR 254-19,GAR 255-19, GAR 256-19, GAR 257-19
to be:
The Executor of the Estate of John Anthony Storry
2. It is deemed that:
(a) An Application is made in GAR 255-19 by the Department of Justice and Attorney-General – Office of Fair Trading, in the same terms as the Application is made by it in GAR 250-19 to dismiss the Application to review, and
(b) The same Directions are made in GAR 255-19 as were made in GAR 250-19 in Direction 3 of 16 August 2021
3. The following files are to be set for a Directions Hearing together, at a time and date to be advised by the Registry, to discuss their further conduct:
GAR248-19, GAR249-19, GAR252-19
ORDERS
1. All Applications to Transfer the Proceedings made by Venetia Storry in each of the following files are dismissed:
GAR 248-19, GAR 249-19, GAR 250-19,
GAR 251-19, GAR 252-19, GAR 254-19,GAR 255-19, GAR 256-19, GAR 257-19
2. The whole of the Applications to Review a Decision made by Venetia Storry in each of the following files are struck out:
GAR 250-19, GAR 251-19, GAR 254-19,
GAR 255-19, GAR 256-19, GAR 257-19
3. Part of the Applications to Review a Decision made by Venetia Storry in each of the following files are struck out as to liability and they are to proceed as to an assessment of quantum only:
GAR 248-19, GAR 249-19, GAR 252-19
CATCHWORDS:
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – STATUTORY OR OTHER FIDELITY OR COMPENSATION FUND – where claims were approved for payment from the fund – where the agent sought that the claims be paid from a trust account after conclusion of a receivership – where applications to transfer the proceedings were dismissed – where applications to review a decision were struck out except as to quantum
Agents Financial Administration Act 2014 (Qld), s 62, s 63, s 100, s 103
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1), s 47(2), s 47(3)
Adelaide Brighton Cement Ltd v Hallett Concrete Pty ltd (2020) 137 SASR 117
Storry v Office of Fair Trading [2021] QCA 255
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Office of Fair Trading: B. Corbiere (Lawyer, Legal Advice and Advocacy)
Mercantonio Sermosi: GAR255-19, J. Consiglio (Solicitor, J C Lawyers)
The Public Trustee of Queensland: F. Capra (The Public Trustee of Queensland)
The executor of the Estate of John Anthony Storry: Venetia Storry
REASONS FOR DECISION
Ms Storry is the applicant in each of nine related files. The substantive issues are the same in all the files, only the claimants and the particulars of each claim differ.
The Department of Justice and Attorney-General – Office of Fair Trading (OFT) and Ms Storrry’s deceased father are Respondents in each file. There are additional respondents in individual files who are claimants on the fund as follows:
GAR 248-19 – Keith Graham Norman and Jaclynne Stead Norman
GAR 249-19 – Kambos Pty Ltd (Chrisanthy Comino)
GAR 250-19 – Michael Dallas Lean
GAR 251-19 – Soraya Annells
GAR252-19 – Gallpen Handyman Services (Andrew Leonard Gallpen)
GAR 254-19 – Paul Brian Annells
GAR 255-19 – Marcantonio Sermosi
GAR 256-19 – Science House Pty Ltd (Ross Curlewis Gutteridge)
GAR 257-19 – The Public Trustee of Qld (Kerry Alan Tremain)
The decision of the OFT in each file is that a claim in a specified amount is to be paid to the claimant from the Claim Fund; and that John Anthony Storry (deceased) t/as Anthony Storry Real Estate and Venetia Louise Storry are jointly and severally liable to reimburse the Claim Fund in accordance with the Agents Financial Administration Act 2014 (AFAA).
These reasons consider, and apply to, all nine files.
The Tribunal gave directions in four of the matters (GAR 248-19, GAR 249-19, GAR 252-19), GAR 255-19) at a Directions Hearing held on 16 August 2021, directing that:
4) The applications for directions filed by Ms Storry on 13 August 2021 was to be listed for an oral hearing, and
5) Ms Storry was to file any application to transfer the proceeding to a court of competent jurisdiction by 4:00pm on 27 August 2021, and
6) The OFT and the claimants were to file any written submissions in response by 4:00pm on 3 September 2021.
The Tribunal gave directions in five of the matters (GAR 250-19, GAR 251-19, GAR 254-19, GAR 256-19, GAR 257-19) at the same Directions Hearing held on 16 August 21 that were similar, and had the same dates for filing an application to transfer the proceeding and for submissions, but were more extensive as to the applications to be listed for an oral hearing:
(3) The following applications are listed for an oral hearing in Brisbane on a date and time to be advised by the Registry:
a)The application to dismiss the Application to Review filed by the Department of Justice and Attorney-General – Office of Fair Trading on 15 January 2021
b)The application to dismiss the strike-out application filed by Venetia Storry on 17 February 2021
c)The application to transfer the proceeding to the Supreme Court of Australia filed by Venetia Storry on 20 May 2021
d)The application for directions filed by Venetia Storry on 13 August 2021
The dates in those directions of 16 August 2021 as to the year of applications 3 a), b) and c) are a typographical error, and should refer to the year 2020 in each instance, rather than 2021 i.e. 15 January 2020, 17 February 2020, and 20 May 2020.
Ms Storry subsequently filed an Application for miscellaneous matters in each of the nine files on 19 August 2021 seeking directions as follows:
The transfer of the matter with all exhibits (as evidence) be transferred to a court of competent jurisdiction together with APL104/20 and that the evidence from this matter be included in the decision of the merit review appeal APL104/20 as fresh evidence.
Administration correction: John Anthony Storry (deceased) t/as Anthony Storry Real Estate be corrected to John Anthony Storry (deceased).
The matter came before me for an oral hearing on 15 November 2021. Ms Storry appeared for herself, an in-house lawyer for the OFT appeared, and a Solicitor for one of the claimants (Mercantonio Sermosi) appeared. There was no appearance from any of the other claimants.
In preliminary discussion at the commencement of the hearing, the OFT advised that different directions have been made in five of the matters, as there was agreement by Ms Storry as to the quantum of the amount being claimed upon the fund in each of those matters, and that in those matters the applications referred to in Direction 3 (a), (b), (c) and (d) given on 16 August 2021 applied. Those matters are:
GAR 250-19
GAR 251-19
GAR 254-19
GAR 256-19
GAR 257-19
The OFT advised that in the remaining four matters, no strike-out application had been made as there was no consensus in those matters as to the quantum of the amount being claimed upon the fund. Those matters are:
GAR 248-19
GAR 249-19
GAR 252-19
GAR 255-19
Mr Consiglio, who appeared for the applicant in GAR 255-19, said that agreement had been reached as to the quantum of the amount being claimed upon the fund in that matter also. The OFT agreed that it was now appropriate to include that matter in the matters which were being sought to be struck out. I therefore made directions to deem a strike-out application in that matter also.
In preliminary discussion, the proper identity of the real estate identity was also discussed, as Mr Storry was named as a party although he was deceased, and it was accepted by all parties that it was more appropriate to name his Executor as the respondent.
As a result of those preliminary discussions, I gave the following Directions at the commencement of the hearing:
(1) The name of the Respondent currently named as:
John Anthony Storry (Deceased) t/as Anthony Storry Real Estate
is amended in each of the following files:
GAR 248-19
GAR 249-19
GAR 250-19
GAR 251-19
GAR252-19
GAR 254-19
GAR 255-19
GAR 256-19
GAR 257-19
to be:
The executor of the estate of John Anthony Storry
(2) It is deemed that:
a) an Application is made in GAR 255-19 by the Department of Justice and Attorney-General – Office of Fair Trading, in the same terms as the Application is made by it in GAR250-19 to dismiss the Application to review, and
b) the same directions as were made in GAR 250-19 in Direction 3 of 16 August 2021 are made in GAR 255-19.
I reserved my decision at the conclusion of the hearing, and advised that it would be delivered in writing and issued to the parties.
The applications to transfer the proceedings
The provisions as to transfer of a proceeding are contained in section 52 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) which provides that the tribunal may transfer a matter if it considers that the subject matter of the proceeding would be more appropriately dealt by another tribunal, court or entity; or if the tribunal considers it does not have jurisdiction to hear all the matters in a proceeding.
Ms Storry has lodged two sets of applications to transfer the proceedings – the applications filed on 20 May 2020, and the applications filed on 19 August 2021.
The applications to transfer filed on 20 May 2020 do not appear to have been dealt with.
I will deal with both sets of applications to transfer together.
Ms Storry filed submissions on 27 August 2021 as to the transfer of the matter. It is unclear upon what basis she contends that the matter would be more appropriately heard in another forum. Her submissions that appeared to relate to the question of the appropriate forum were as follows:[1]
10. The Supreme Court of Appeal QCA 30 on the 02/03/2021 found that the movement of the amounts in the trust account of Anthony Storry was made under an enactment. The decision is properly heard as a judicial review in the Supreme Court of Queensland. The court also determined that the movement of the trust account amounts to the claims fund in support of the respondents submission based on evidence before Justice Boddice that ‘The evidence establishes that the transfer of the monies was compliant with s 62 of the Agents Financial Administration Act.
11. However, the Court of Appeal also illuminated that they had not conducted a merit review, as such there had been no financial analysis to support that there was compliance with s 62.
12. Additionally, QCAT has evidence before it, that was not placed before the Supreme Court or the Court of Appeal hence a decision made by the Court of Appeal and the Supreme Court cannot be used as a basis to refuse a transfer.
[1]Submissions by Venetia Louise Storry and John Anthony Storry (deceased) filed on 27 August 2021, [10] to [12].
Those submissions of Ms Storry do not establish in any way as to why the tribunal is not the appropriate forum to consider the review of a decision by the Chief Executive in relation to a claim upon the fund.
The Chief Executive is authorised to decide a claim upon the fund by Section 100 of AFAA. Section 103 provides as follows:
103 Party may ask QCAT to review Chief Executive’s decision
(1) A party who is dissatisfied with the chief executive’s decision under Section 100 may apply, as provided under the QCAT Act, to QCAT for a review of the decision.
The tribunal clearly has jurisdiction, and is an appropriate forum, to review the decisions of the Chief Executive in these matters. The tribunal conducts a merits review pursuant to Section 20 of the QCAT Act.
In the course of the hearing, Ms Storry initially indicated that she wanted the application to review a decision to be transferred to the ‘Supreme Court of Appeal’. Upon further discussion as to whether she meant a transfer to the Court of Appeal, or to the trial division of the Supreme Court of Queensland, she nominated that she wished the matter to be transferred to the trial division of the Supreme Court of Queensland.
Ms Storry does not establish why the trial division of the Supreme Court of Queensland would be a preferable forum to the tribunal. The Supreme Court does not conduct merits reviews. It conducts judicial review under the Judicial Review Act 1991. The difference between judicial review and merits review is described in a leading text on Administrative Law as follows:[2]
Judicial review by courts looks only at whether government decisions are lawfully taken, that is, comply with the limits imposed by law. The separate question of whether decisions are substantively correct – the merit question – is not part of a court’s judicial review function. Merit review can involve a review of the facts and policies that support a decision, as well as the legality of a decision. It is a function chiefly undertaken by administrative tribunals, ombudsman-type agencies, anti-discrimination and human rights bodies, and internal review bodies. The distinction between judicial review and merit review permeates Australian administrative law.
[2]Creyke and McMillan, Control of Government Action, LexisNexis, Butterworths, Australia, 3rd edition, 2012 at Pt 2.3.
The OFT opposes the transfer of the matters to another court or tribunal, and submits that the tribunal remains the appropriate jurisdiction to determine the review.[3]
[3]Chief Executive’s Submissions filed 3 September 2021, [24].
I am not satisfied that a proper basis has been made for transfer of the proceedings, and I order that all the applications in that regard are dismissed.
The applications to dismiss the proceedings
The OFT filed applications to dismiss or strike out the application to review on 15 January 2020 in the following files:
GAR 250-19
GAR 251-19
GAR 254-19
GAR 256-19
GAR 257-19
Ms Storry then filed applications on 17 February 2020 to dismiss those strike-out applications. There was no need to file such applications, which were misconceived, as she would have been given the opportunity to file submissions in response to the applications to strike-out in the normal course of directions. The only effect of her filing those applications was to further complicate the proceedings.
I gave directions on 21 July 2020 in GAR 254-19 (and similar directions in other files) adjourning the hearing of the following applications to a date to be set as soon as possible after determination by the Court of Appeal, of the Appeal filed on 20 July 2020 by Venetia Storry against the decision of Boddice J of the Supreme Court of Queensland made on 15 July 2020:
a) the application by the OFT filed on 15 January 2020 to strike-out the Application to review a decision; and
b) the application by Ms Storry filed on 17 February 2020 to dismiss the strike-out application; and
c) the application by Ms Storry filed on 20 May 2020 to transfer the matter to the Supreme Court of Queensland
The Court of Appeal gave its decision on the appeal against the decision of Boddice J on 2 March 2021 in Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30. The Court of Appeal, comprising Philippides and Mullins JJA and Williams J made the following orders:
1. The application for leave to appeal is refused.
2. In respect of the other relief sought by the applicant in the application filed 30 July 2020, the application is refused.
3. The applicant pay the respondent’s costs of the application on the standard basis.
Those strike-out and transfer applications were therefore available to be determined after 2 March 2021.
The Application to review a decision filed by Ms Storry in GAR 254-19 on 28 June 2009 seeks to review the decision of the OFT made on 29 May 2019. The details of what Ms Storry seeks from the tribunal are set out at part C of that application as follows:
Grant Rasmussen – Chief Executive Officer the Office of Fair Trading Queensland. I seek that the tribunal – I do not agree with any of the claims against the business, Anthony Storry Real Estate.
I seek that the tribunal disallow the claims and instead allow for the true submissions of the financial situation from the agency appointed forensic accountant.
I seek that the matter of the claims also be considered under a current appeal application with QCAT GAR 009-19 in order that the clients of the agency have a speedy recovery from the agency’s trust funds and not by the government’s claims and recoveries.
I request that the true amounts be given to the clients from the trust fund of Anthony Storry Real Estate and not from the claims fund.
I do not accept that a receiver was necessary at all. She should not have been paid from the claim fund indeed she has caused further financial loss due to her ill-conceived attitude that she should be appointed across trust accounts of Anthony Storry Real Estate and Storry Real Estate Pty Ltd.
Similar bases for a review of decisions made by the OFT to allow the individual claims are made in each of the nine files.
The OFT filed submissions on 15 January 2020 in GAR 254-19 (and similar submissions in the other files) in support of its application to strike-out the proceedings. It submitted that the Chief Executive was required to pay the claims from the fund, and not from the agents trust account in any event:[4]
[4]Chief Executive’s submissions filed 15 January 2020, [6] to [11].
6. The applicant’s only real issue is that Mr Annells should be paid from the balance of the agency’s trust account and not from the fund. The Chief Executive submits that it is nonsensical to continue this review on that basis because he is legislatively required to pay Mr Annell’ claim from the balance of the agency’s trust account in any event.
7. At the end of the receivership, the agency’s trust account balance was $48,499.41 and the total amount of claims the receiver admitted was $73,346.35. Section 62 of AFAA relevantly provides:
(2)The receiver may pay a claim allowed by the receiver only if the receivership property is enough to pay all claims allowed by the receiver.
(3)If the receivership property is not enough to pay all of the allowed claims, the receiver –
a)may pay any part of the property that consists of money to the chief executive; and
b)must give a copy of the final claims report prepared under section 61(7) to the chief executive.
(4)Money paid to the chief executive under subsection (3) must be –
a)paid to the consolidated fund; and
b)paid from the claim fund under section 63(3)(b)
8. On 23 May 2019, the receiver remitted the agency’s trust account balance to the chief executive, which he then paid to the consolidated fund pursuant to sections 63(3) and (4) above.
9. Section 63 of AFAA provides: (emphasis added)
1)this section applies to receivership property consisting of money in the receiver’s possession.
2)the receiver must give the money to the chief executive if –
a)the receiver has not dealt with it under this division; and
b)the Chief Executive, by written notice, asks for it.
3)money given to the chief executive under subsection (2) must be paid to the consolidated fund and be paid from the claim fund in the following order –
a)to reimburse claims paid from the claim fund in relation to the agent;
b)to pay unsatisfied claims against claim fund in relation to the agent;
c)to pay the remuneration and costs of a receiver appointed under section 47;
d)to pay the remuneration and costs of a special investigator appointed under section 70;
e)to pay claims by the agent against the money
10. Accordingly, the chief executive must apply the balance of the agency’s trust account towards Mr Annells’ claim, which resolves all of the applicant’s concerns on this point. In fact, the only thing preventing the chief executive from doing so is the applicant’s review.
11. As such, the Chief Executive submits that this review should be dismissed because it is redundant, serves no proper purpose and is wholly lacking in substance.
The solicitor for Mercantonio Sermosi, the claimant in GAR255-19, made similar submissions as to the review application preventing payment being made to his client. He said that the proceeding is putting pressure on his client, as he is being continually drawn into these proceedings, and that the question of whether the money is paid from the trust account or the claims fund is ‘neither here or there’. He submitted that all parties had agreed on quantum as to that claim, so the matter should be struck out and his client should be paid.
Ms Storry filed extensive submissions on 17 February 2020 in GAR 245-19 (and similar submissions in the other files) as to why the Applications to review ought not be dismissed. She submitted that the decision of the OFT ‘to appoint a receiver and use the claim fund effectively holding up the funds is neither good governance or does it satisfy community expectations.’[5]
[5]Submissions of Venetia Storry filed 17 February 2020, p1.
Ms Storry submits that Section 63(3)(b) of AFAA does not apply as:[6]
All claims can be satisfied from the trust of Anthony Storry Real Estate trust account when the receiver’s mistakes are adjusted and the existing claims are considered, AFAA 63(3)(b) does not need to be applied.
[6]Ibid, p2.
I accept the submissions of the Office of Fair Trading that the Chief Executive is required to pay claims, which it approves, from the Claims Fund, pursuant to AAFA.
The essential bases of Ms Storry’s Applications to Review a Decision, that the claims be paid from the agents trust account, are therefore untenable.
Finality
I heard APL109-20 (together with Senior Member Aughterson) in relation to a decision by a Member of the tribunal involving related matters between Ms Storry and the OFT, as to decisions of the OFT concerning the freezing of certain trust accounts and the appointment of a receiver. Our decision was delivered on 8 August 2021.
Ms Storry lodged an application in the Court of Appeal for leave to appeal from that decision in APL109-20. That application was heard on 22 November 2021 and a decision was delivered on 26 November 2021 by the President of the Court of Appeal, Justice Sofronoff, in Storry v Office of Fair Trading [2021] QCA 255. The application for leave to appeal was refused.
That decision was handed down about two weeks after the hearing in this matter.
In the course of his decision, Sofronoff P. made comments as to the finality of the various proceedings in the Supreme Court, and in the Tribunal, which have direct relevance to all of the Applications to Review a decision in these proceedings.
His Honour canvassed the issues in relation to the freezing of the trust accounts and the appointment of a receiver, and the conduct of those proceedings in the Tribunal, and expressed the following views:[7]
[6] It should also be mentioned that while the appeal to the QCAT Appeal Tribunal was pending the applicant sought judicial review of the four decisions in the Supreme Court. Boddice J dismissed the application. On 2 March 2021 the Court of Appeal dismissed an appeal from that decision.
[7] Upon the hearing of this application for leave to appeal to the Court of Appeal against the QCAT Appeal Tribunal’s decision, I asked the applicant what was the legal interest she had in seeking to review a decision that concerned a bank account which she did not own, as a trustee or beneficially. It became apparent that her real interest was a personal interest to vindicate her father’s reputation. However, an interest of that kind is not a legal interest that can form the basis for a legal proceeding like this one. The applicant lacks standing to challenge those decisions and always did so.
[8] As to the decision concerning the applicant’s own account, it emerged during the hearing that the receivership of her account had ended. Boddice J found as much. (Storry v Chief Executive of Office of Fair Trading, 15 July 2020, page 3 line 13) The decision freezing the account in the first place was withdrawn long ago. There would, therefore, be no utility in an appeal against a decision not to set aside these decisions. Again, the point of the proceeding appears to be personal vindication. A person is entitled to pursue such a purpose and many cases are litigated for only such a reason. However, when a person seeking to agitate the correctness of an administrative decision for the third time, as I have said, something special must be shown to justify such a course. There is nothing of that kind shown here. It is material to notice that, as Boddice J observed in his reasons, when he dismissed the application for judicial review, that the applicant had previously commenced and then abandoned proceedings for judicial review. This is, therefore, actually an attempt by the applicant to relitigate the propriety of these decisions for the sixth time. (These challenges were the abandoned application, application before Boddice J, appeal against decision of Boddice J, application to QCAT, appeal to QCAT Appeal Tribunal and, now, appeal to the Court of Appeal. There has also been an application for an interlocutory injunction in relation to these decisions, dismissed by Flanagan J.)
[9] For these reasons I refuse leave to appeal.
[7]Storry v Office of Fair Trading [2021] QCA 255 at [6] to [9].
The parties who are able to seek a review of the chief executive’s decision in relation to a claim under AFAA are set out in section 103 as follows:
103 Party may ask QCAT to review chief executive’s decision
(1) a party who is dissatisfied with the chief executive’s decision under section 100 may apply, as provided under the QCAT act, to QCAT for a review of the decision.
(2) any of the following who is not the party seeking the review is a party to the review –
a)the claimant;
b)the chief executive;
c)the respondent
Section 96 of AFAA also provides a description of ‘parties’ to claims as follows:
96 Chief Executive must invite comments about inspector’s report
(1) This subdivision applies to a claim to be decided by the chief executive.
(2) The Chief Executive, by written notice, must invite the claimant and the respondent (the parties) to give the chief executive written comments about the inspector’s report prepared under section 94 within 14 days after giving the notice.
Ms Storry is a respondent to all of the claims. She therefore has standing under Section 103 of AFAA to bring the Applications to Review a Decision in the Tribunal.
Ms Storry has sought to ventilate and litigate what are essentially the same grievances in both the Tribunal and the Supreme Court, and has brought multiple and duplicate applications in doing so.
I take note of the recent comments of the President of the Court of Appeal, Sofronoff P. In a related proceeding, that the application before him constituted ‘actually an attempt by the applicant to relitigate the propriety of these decisions for the sixth time.’[8]
[8]Ibid, [8].
There is a public interest in bringing litigation to finality. Doyle, J of the Supreme Court of South Australia said in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd[9] in 2020 expressed that:
[34] ….while the Court has a discretion to reopen if satisfied that it is in the interests of justice to do so, the public interest in finality is a very significant consideration. The power is not one intended to be exercised merely for the purpose of re-agitating matters already considered by the Court, or to enable arguments to be put with greater or different detail or focus.
[9](2020) 137 SASR 117.
There is no point in the Applications to Review a Decision proceeding any further, where:
(a)There is no sustainable challenge established by Ms Storry as to liability;
(b)The Chief Executive is not able to act as Ms Storry wishes pursuant to AAFA;
(c)Ms Storry’s arguments as to the impropriety of the receivership have been aired extensively in previous proceedings without success; and
(d)Where there is no challenge to the quantum of the claim approved by the Chief Executive.
As there is no point in those applications proceeding, the appropriate course, in order to bring the matters to finality, is to strike those applications out.
Conclusion
I am satisfied that all of the various applications brought by Ms Storry to have the Applications to review a decision transferred to another forum have no proper basis, and I will dismiss all of those applications in all of the relevant files.
I am further satisfied that all of the Applications to Review a decision are wholly misconceived as to liability, as there is no power under the AFAA for the Chief Executive to act in the way sought by Ms Storry to pay the claims from the agents trust account rather than the claims fund.
The OFT is the Applicant in applications to strike out six of the Applications to review a decision in relation to claims where the quantum of the claim is agreed. It has not filed applications to strike out the remaining three applications to review a decision where the quantum of the claim is in dispute.
Where the quantum of the claims is in dispute, Ms Storry is entitled to, and may wish to continue to, review that part of those decisions to the extent of assessment of the quantum of the claims.
Section 47(1) of the QCAT act provides that section 47 applies if the tribunal considers that a proceeding, or a part of a proceeding, is:
(a)frivolous, vexatious or misconceived; or
(b)lacking in substance; or
(c)otherwise an abuse of process
If section 47(1) of the QCAT Act applies, section 47(2)(a) provides that the tribunal may order the proceeding, or part, be dismissed or struck out.
Section 47(3) provides as follows:
47(3)The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative.
It is therefore open to the tribunal to dismiss or strike-out a proceeding, or part of a proceeding, where it considers it is appropriate, notwithstanding that a specific application has not been made by a party to the proceeding.
There is no utility in any of these applications to Review a decision wholly proceeding any further.
The applications where quantum is in dispute (GAR248-19, GAR249-19, GAR252-19) should proceed to that extent only. That part of those applications as to liability should be struck out. I will give directions that those files are to be listed for a Directions Hearing to discuss their further conduct as to the assessment of quantum.
I direct that:
(a)The name of the Respondent currently named as:
John Anthony Storry (Deceased) t/as Anthony Storry Real Estate
is amended in each of the following files:
GAR 248-19, GAR 249-19, GAR 250-19,
GAR 251-19, GAR 252-19, GAR 254-19,
GAR 255-19, GAR 256-19, GAR 257-19
to be:
The Executor of the Estate of John Anthony Storry
(b)It is deemed that:
An Application is made in GAR 255-19 by the Department of Justice and Attorney-General – Office of Fair Trading, in the same terms as the Application is made by it in GAR 250-19 to dismiss the Application to review, and
The same Directions are made in GAR 255-19 as were made in GAR 250-19 in Direction 3 of 16 August 2021
(c)The following files are to be set for a Directions Hearing together, at a time and date to be advised by the Registry, to discuss their further conduct:
(d)GAR248-19, GAR249-19, GAR252-19
I order that:
1) All Applications to Transfer the Proceedings made by Venetia Storry in each of the following files are dismissed:
GAR 248-19, GAR 249-19, GAR 250-19,
GAR 251-19, GAR 252-19, GAR 254-19,
GAR 255-19, GAR 256-19, GAR 257-19
2) The whole of the Applications to Review a Decision made by Venetia Storry in each of the following files are struck out:
GAR 250-19, GAR 251-19, GAR 254-19,
GAR 255-19, GAR 256-19, GAR 257-19
3) Part of the Applications to Review a Decision made by Venetia Storry in each of the following files are struck out as to liability, and they are to proceed as to an assessment of quantum only:
GAR 248-19, GAR 249-19, GAR 252-19
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