Turpin v The Chief Executive, Department of Justice and Attorney General (No 2)
[2014] QCAT 341
| CITATION: | Turpin v The Chief Executive, Department of Justice and Attorney General & Ors (No 2) [2014] QCAT 341 |
| PARTIES: | Richard Eric Turpin (Applicant) |
| v | |
| The Chief Executive, Department of Justice and Attorney-General Dealer Network Queensland Pty Ltd Barry Forbes (Respondents) |
| APPLICATION NUMBER: | GAR001-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 11 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The time for filing of the claim against the fund is extended to 6 November 2013. 2. The claim is referred to the Chief Executive for processing pursuant to the Property Agents and Motor Dealers Act 2000. |
| CATCHWORDS: | Where an application for extension of time to file a claim against the claim fund – where an employee engaged in a series of dealings with motor vehicles through his employer and allegedly suffered financial loss – principles applicable to an application to extend time – where charges were proceedings against the car dealer in the Magistrates Court - where the requirements of the Act were made out for an extension of time Property Agents and Motor Dealers Act 2000 (Qld), s 511(b) Turpin v The Chief Executive, Department of Justice and Attorney General & Ors [2014] QCAT 027 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Turpin wants to make a claim against the fund established under the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’). His claim arises from a complicated set of dealings he had with his former employer in relation to motor vehicles.
He filed a claim on 6 November 2013 naming Barry Forbes and Dealer Network Queensland Pty Ltd as respondents. The claim was for $13,769.04. He set out that the event alleged to give rise to the claim occurred on 4 August 2012, and he became aware of the financial loss on 4 September 2012. He ticked “yes” to the question whether the dispute was the subject of proceedings before a court, and ticked “Magistrates Court”.
The Office of Fair Trading wrote to him on 22 November 2013, saying that his claim had been assessed as being made outside the time limitations pursuant to s 472 of the Act because it was lodged more than one year after he became aware of his financial loss. A PAMD Form 52 (Out of Time Notice) pursuant to s 473(5) was attached. The out of time notice referred to the same dates as on the claim form.
On the dates claimed by Mr Turpin, one year after became aware of his financial loss would have been 4 September 2013. The claim was received on 6 November 2013 – about two months outside the one year period.
He then lodged an Application in the Tribunal to extend time which was filed on 19 December 2013. That Application had some procedural difficulties as it wrongly described the Chief Executive, and did not name the car dealer and its principals as respondents.
I gave a written decision on 23 January 2014,[1] and issued Directions for the amending of the name of the Chief Executive and adding Dealer Network Queensland Pty Ltd and Barry Forbes as Respondents. I also gave directions for the filing and service of material in this Application.
[1]Turpin v The Chief Executive, Department of Justice and Attorney General & Ors [2014] QCAT 027.
I directed that if no application for an oral hearing was made that this application for extension of time would be determined on the papers not before 31 March 2014.
The Chief Executive effected service as directed by post to Barry Forbes and Dealer Network Queensland Pty Ltd at their known addresses.
No further material was filed by any of the parties, and no application for an oral hearing was made. This is the decision on the papers in accordance with the directions.
The general principles relevant to an application for extension of time were recently enunciated in the Court of Appeal.[2] It was held that the criteria to which the Court will have regard when determining whether or not to extend time are not limited but should include:
·The length of time that has elapsed since the notice of appeal should have been filed;
·A satisfactory explanation for the delay;
·Any prejudice suffered by the respondent; and
·The merits of the substantive appeal.
[2]Attorney-General for the State of Queensland v Barnes [2014] QCA 152.
The Court ruling has been summarised that[3] “In effect, an application for an extension of time must show that strict compliance with the rules will work an injustice in the circumstances of the case”.
[3]Queensland Law Reporter [2014] QLR 4.
Section 511(1)(b) of the Act provides that the Tribunal may extend the time within which to file the claim if the tribunal is satisfied that it is appropriate to extend time having regard to:
(i)The reasons for not making the claim or seeking the review within the time allowed; and
(ii)The application generally; and
(iii)For a claim, the relative hardship that an extension of time or a refusal to extend time would place on the claimant or respondent; and
(iv)The justice of the matter generally.
Mr Turpin set out his reasons for not having made the claim within time in his Application:[4]
I was under the impression I had to wait for the court proceedings to be finalised as the OFT was taking the Company that I am making the claim against to magistrates court. The court was finalise in November and once this was finalised I then got all of my claim forms and evidence together rand sent off for the claim not realising that I should have made the claim much earlier when the motor dealer had affected me financially. The person I was dealing with at the OFT and that took my statement told me now that the court had been finalised and that the dealer had been charged I could now make my claim, so I was only going off what I was told by the OFT representative at the time. Before it all went to court I was told a number of times by the dealer that he was going to pay me the money he owed me and that is why I never thought of making a claim but then when the OFT got involved and I was made aware that I wasn’t going to get any monies from the dealer and the best chance I had was to follow with the court proceedings then make this claim with the OFT to try and get some of the money back. I hope you can understand the circumstances and the miscommunications there was a lot going on and I was confused and literally thought that I had to wait for the dealer to be charged before it was relevant for my claim to be made.
[4]Part B “Details of what you seek from the tribunal”.
I do not have any material in relation to any charges against the dealer, but have no reason to not accept Mr Turpin’s remarks in that respect. I note that in his material he has attached to the Claim Form a copy of a ‘Statement of Witness” of himself. That statement was taken by an Inspector of the Office of Major Investigations, Brisbane on 13 November 2012. Such a statement is likely to be associated with investigations leading to possible charges against the dealer.
I am satisfied that Mr Turpin has shown satisfactory reasons for not making the claim within the time allowed. He was confused as to the procedure involved, and was acting under a misunderstanding as to the relationship between charges against the dealer and his claim against the fund. There was clearly active investigation of the dealer, and it is credible that he would be confused.
The length of time that has elapsed outside the one year period is only two months. That is not a significant delay.
Barry Forbes and Dealer Network Queensland Pty Ltd have been served with the material in this application and have been given an opportunity to respond, and to submit as to any hardship they may suffer by an extension of time being granted. They have not made any submissions. I therefore do not have regard to any hardship to the Barry Forbes and Dealer Network Queensland Pty Ltd, and the relative hardship is all in favour of the claimant.
The Tribunal will have regard to the merits of the claim on such an application, but only to the extent as to whether the claim is “hopeless or bound to fail” and it would be pointless in it being pursued.[5]
[5]Potter v Klar Pty Ltd & Ors [2008] CCT PE008-07.
The dealings in this matter were quite complex. They involved firstly the purchase of a Toyota Landcruiser 257-LFE for approximately $16,000 in about May of 2011 from his employer; then the sale of that vehicle on consignment through the employer for $23,889.33; then the purchase of a Toyota FJ Landcruiser 719-MCM for $39,500 through his employer. The last vehicle is still registered in the name of Dealer Network Queensland.
In the course of those transactions there were certain costs incurred for detailing and transport of the vehicles.
Further evidence may be required to establish the financial loss of Mr Turpin as a result of these dealings. The loss will also involve consideration of who has had use of the vehicle, and what the current value of it is. On the claim form as to the financial loss, Mr Turpin says “please see attached statement”. The basis of calculation of an amount of $13,769.04 is not however clear.
Mr Turpin alleges in his statement that the dealer admits liability to him:
41.I have had several conversations with Barry Forbes and Belinda Talon about these matters. During these conversations they have never told me that they do not owe me for the sale of my car. In fact, Barry has told me on several occasions that he would like to pay me back but he does not have any funds. Some of these conversations have been witnessed by David McLady and others.
This admission of liability has not been challenged by Barry Forbes and Dealer Network Queensland Pty Ltd. Without going deeply into the complex dealings with the vehicles, there is sufficient merit in the allegations of Mr Turpin, and in the apparent admission of liability of Barry Forbes and Dealer Network Queensland Pty Ltd, to show that the claim has sufficient merit to be processed.
The justice of the matter is in favour of Mr Turpin having the opportunity to have his claim against the fund processed.
I am therefore satisfied that the requirements of the Act are made out, and that it is appropriate to extend time.
I order that the time for the filing of the claim against the fund be extended to the date of filing of the claim, 6 November 2013, and refer the claim to the Chief Executive for processing pursuant to the Act.
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