The Chief Executive, Department of Justice and Attorney General v Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser, Ross Crampton, Gary Smeeton
[2014] QCATA 20
•10 February 2014
| CITATION: | The Chief Executive, Department of Justice and Attorney General v Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser, Ross Crampton, Gary Smeeton [2014] QCATA 20 |
| PARTIES: | The Chief Executive, Department of Justice and Attorney General (Appellant) |
| v | |
| Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser, Ross Crampton, Gary Smeeton (Respondents) |
| APPLICATION NUMBER: | APL320-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judicial Member Dodds |
| DELIVERED ON: | 10 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the tribunal is set aside. 2. Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser and Ross Crampton are reinstated as respondents to the application by Gary Smeeton to extend the time within which to claim against the Claim Fund, received by QCAT on 21 January 2013. 3. The Chief Executive of the Department of Justice and Attorney General is removed as respondent to the application. 4. The claim against the Claim Fund lodged with the Chief Executive of the Department of Justice and Attorney General on 24 May 2012 by Gary Smeeton is referred back to the Chief Executive for the purposes of sections 474 to 477 PAMDA. 5. In the alternative, the time in which Mr Gary Smeeton may lodge a claim against the Fund is extended to 24 May 2012. |
| CATCHWORDS: | APPEALS – MOTOR DEALERS – CLAIMS AGAINST FUND – where application was made out of time – where applicant applied to tribunal for an extension within which to lodge claim – where tribunal treated application for an extension of time as a review of the Chief Executive’s opinion – where tribunal substituted Chief Executive as respondent to the application to extend time – whether the tribunal erred in concluding that the application was made within time – whether the tribunal correctly named the respondents to the application Property Agents and Motor Dealers Act 2000 (Qld), ss 450(d), 450(e), 469, 473(1), 473(5), 474(1), 476, 481 Geodien Pty Ltd v White [2006] QCCTPAMD 31 Smart & Smart v Moonlight Group Pty Ltd [2006] QCCT PAMD 15 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an appeal by the Chief Executive of the Department of Justice and Attorney General against orders made by the Queensland Civil and Administrative Tribunal (QCAT) on 2 July 2013.
Background
On 5 May 2010 one Gary Smeeton (Mr Smeeton), the fifth of the respondents in this appeal, purchased a motor vehicle from Crampton Automotive Pty Ltd t/as Toowoomba Holden, the first respondent in this appeal. The second, third and fourth named respondents, respectively Mark Crampton, Noel Roser and Ross Crampton, I take to be executive officers of the first named respondent.
On 24 May 2012 Mr Smeeton lodged a claim against the Claim Fund established under the Property Agents and Motor Dealers Act 2000 (PAMDA). It was appropriately lodged with the Office of Fair Trading, an office under the control of the Chief Executive of the Department of Justice and Attorney General. It was a claim purportedly pursuant to section 470 of PAMDA. It was not a minor claim as defined in the dictionary, Schedule 2 of PAMDA.
The Chief Executive formed the view the application had been lodged outside the time limit prescribed by section 472 of PAMDA. As PAMDA required, the Chief Executive informed Mr Smeeton in writing of this and of his right to apply to QCAT under section 511 of PAMDA, ie, for an extension of time to lodge the claim. It provided him with the appropriate forms to do this. Mr Smeeton applied to QCAT accordingly. The named respondents to his application were Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser and Ross Crampton.
On 2 July 2013 the tribunal made the following orders:
The Chief Executive Department of Justice and Attorney General is joined as a respondent;
Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser and Ross Crampton are removed as respondents;
The decision of the Chief Executive Department of Justice and Attorney General made on 7 January 2013 that the claim made on 24 May 2012 against the fund established under the Property Agents and Motor Dealers Act 2000 by the applicant, Gary Smeeton was out of time is set aside and substituted by a decision that the claim was made within time.
The Appeal
The Chief Executive of the Department of Justice and Attorney General has appealed the tribunal’s decision. The respondents to the appeal are Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser, Ross Crampton and Gary Smeeton. The following orders are sought:
1. The tribunal’s decision of 2 July 2013 be set aside;
2. The original respondents to the matter being Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mr Mark Crampton, Mr Noel Roser and Mr Ross Crampton be reinstated;
3. The Chief Executive Department of Justice and Attorney General be removed as a respondent;
4. The time for Mr Smeeton to lodge a claim against the claim fund be extended to 24 May 2012;
5. Alternatively to order number 4 that the matter is determined to be within time and referred back to the Chief Executive for the purposes of section 474.
The Grounds of Appeal
1. The member erred in treating the Form 52 claim out of time notice as a reviewable decision by the Chief Executive.
2. The member erred in naming the Chief Executive Department of Justice and Attorney General as the respondent to the original application.
3. The member erred in removing the original respondents to the matter being Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser and Ross Crampton.
PAMDA and Claims Against the Claim Fund
Minor claims against the Fund are those where the amount involved does not exceed $10,000. The Chief Executive must decide minor claims. All other claims must be referred by the Chief Executive to QCAT which must decide the claim.[1]
[1]PAMDA s 476(3).
Time limits apply for making a claim; whichever is the earlier of:
· one year after the claimant becomes aware they have suffered financial loss from a claimable event;
· three years after the happening of the claimable event that caused the person financial loss.[2]
[2]PAMDA s 472(2).
All claims must initially be made to the Chief Executive.[3] If not made within the time allowed by PAMDA, the Chief Executive is required to give the claimant notice in the approved form that the claim is out of time and that the claimant may apply to QCAT within 14 days after being given the notice for an extension of time within which to make the claim.[4] It follows that the Chief Executive must make a decision about when the claimant became aware that financial loss was suffered.
[3]PAMDA s 473(2).
[4]PAMDA s 473(5).
Ground One of the Appeal
The tribunal characterised Mr Smeeton’s application as ‘effectively a review of the decision of the Chief Executive that Mr Smeeton was out of time’, alternatively an application for an extension of the one year period provided under section 472 PAMDA to make a claim.
PAMDA does not provide the tribunal with jurisdiction to review the Chief Executive’s decision that Mr Smeeton’s claim was out of time. Its only jurisdiction under PAMDA to review a decision of the Chief Executive is to review decisions of the Chief Executive in relation to minor claims,[5] and in relation to licensing and registration.[6]
[5]PAMDA s 450(d).
[6]PAMDA s 450(e).
The Chief Executive’s decision that Mr Smeeton’s claim was out of time was not reviewable under PAMDA.
Grounds Two and Three of the Appeal
If the Chief Executive has decided that a claim, whether a minor claim or otherwise, was not made within the time allowed, notice to that effect must be given and the person may apply to the tribunal within 14 days for an extension of time within which to make the claim. Section 511 of PAMDA provides the tribunal with jurisdiction to extend the time within which to file a claim. It also provides the tribunal with jurisdiction to extend the time for a claimant to seek review of a reviewable decision of the Chief Executive. It is trite to say that QCAT may only review a decision of the Chief Executive for which it has jurisdiction.
The claim by Mr Smeeton to the Chief Executive set out the person/s whose action/s he alleged gave rise to his claim. In PAMDA those persons are termed respondents.[7] His application to QCAT for an extension of time also named those persons as respondents.
[7]PAMDA ss 469 and 474(1).
Moreover, the term respondents may be seen as appropriate to describe those persons. They were persons against whom allegations were made, which ultimately may have lead to orders that were financially detrimental to them; persons who were entitled under PAMDA to notice of the allegations and to an opportunity to respond. They were also entitled to be heard in the application to extend time if they wished.
The determination about an extension of time was entirely within the discretion of the tribunal guided only by the terms of section 511(1)(b) of PAMDA. It was not a review of the Chief Executive’s decision in which the Chief Executive had an interest in being heard.
The Chief Executive was not properly a respondent to the application. The factors in Section 511(1)(b) of PAMDA to which the exercise of the discretion was directed say nothing about the Chief Executive’s decision being wrong. The nature of the application contains or implies no allegation the Chief Executive has made a wrong decision.
Discussion
It appears from the submissions of the Chief Executive in this appeal that on past occasions of applications to a tribunal for an extension of time to make a Claim against the Fund, the tribunal, rather than ordering time be extended, has expressed its view that the claim was not out of time and referred the matter back to the Chief Executive for the purposes of sections 474 to 477 PAMDA.[8]
[8]Geodien Pty Ltd v White [2006] QCCTPAMD 31, Palmer v Holden [2004] QCCTPAMD 28, MacKenzie v McCauley t/as Grenadier Motors [2006] QCCTPAMD 1, Smart & Smart v Moonlight Group Pty Ltd [2006] QCCTPAMD 15.
This historical practice may well have been what prompted the tribunal in this matter to describe the application before it as “effectively a review of the decision of the Chief Executive”. But the matter before the tribunal was in truth an application to extend time. In the cases from the past mentioned and in the present case, in addressing the matters in section 511(1)(b) PAMDA, the evidence before the tribunal appears to have led the tribunal to a view there was no need to extend time.
Because the tribunal came to the view that there was no need to extend time, that does not convert what was an application to extend time, which was within the jurisdiction of the tribunal, into a review of the correctness of the Chief Executive’s decision, a matter the tribunal had no jurisdiction to decide.
The tribunal in this case and tribunals in the cases referred to had no jurisdiction to make any order that the claim in question was made within time. It will be noticed that in none of the past cases was any order made about the claim being within time. Rather, an opinion was expressed about that and the matter referred back to the Chief Executive. In the present case the view the tribunal came to is, in truth, no more than a view which it formed in hearing the application before it and expressed.
The orders sought by the Chief Executive in the appeal include an order that ‘the matter is determined to be within time and referred back to the Chief Executive for the purposes of Section 474’ of PAMDA.
I do not consider such an order should be made. Whilst on appeal, this tribunal may make any order it considers appropriate, I do not think it appropriate to make an order determining Mr Smeeton’s claim was lodged within time.
It is clear enough from the tribunal’s reasons that it formed the view that was the case. It is sufficient then that any order go no further than referring the matter back to the Chief Executive for the purposes of sections 474 to 477 of PAMDA.
Decision
Describing the application for an extension of time as ‘effectively a review of the decision of the Chief Executive’ does not create jurisdiction for a review of the Chief Executive’s decision that the claim was out of time. Nor does concluding, as the tribunal did, that the Chief Executive was wrong in his determination of the date Mr Smeeton became aware he had suffered financial loss and that in fact his claim was within time.
The decision of the tribunal to substitute the Chief Executive as the respondent in the application before it was wrong. The application before the tribunal was for an extension of time to lodge a claim. The Chief Executive was not properly a respondent to that application. Those named as respondents to the application were the proper respondents.
The decision of the tribunal is set aside.
Crampton Automotive Pty Ltd t/as Toowoomba Holden, Mark Crampton, Noel Roser and Ross Crampton are reinstated as respondents to the application by Gary Smeeton to extend the time within which to claim against the Claim Fund, received by QCAT on 21 January 2013.
The Chief Executive of the Department of Justice and Attorney General is removed as respondent to the application.
The claim against the Claim Fund lodged with the Chief Executive of the Department of Justice and Attorney General on 24 May 2012 by Gary Smeeton is referred back to the Chief Executive for the purposes of sections 474 to 477 PAMDA.
In the alternative, the time in which Mr Gary Smeeton may lodge a claim against the Fund is extended to 24 May 2012.
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