Venetia Louise Storry Applicant v Chief Executive, Department of Justice and Attorney General

[2024] QCA 237

[2024] QCA 237

COURT OF APPEAL

MULLINS P

Appeal No 5381 of 2023
QCATA No 43 of 2022

VENETIA LOUISE STORRY  Applicant

v

CHIEF EXECUTIVE, DEPARTMENT OF
JUSTICE AND ATTORNEY GENERAL  Respondent

BRISBANE

MONDAY, 25 NOVEMBER 2024

JUDGMENT

1. MULLINS P:  Ms Storry applies to the Court of Appeal to re-open appeal number 5381 of 2023.  At my direction, the application has been listed for Ms Storry to show cause why the application for re-opening should not be struck out as an abuse of process without requiring any appearance from the respondent.

2. That proceeding in the Court of Appeal was an application for extension of time to apply for leave to appeal the decision of a Judicial Member of the Queensland Civil and Administrative Tribunal (QCAT) sitting as the appeal tribunal where the application had been filed in this Court more than 11 months out of time.  The  application for an extension of time to apply for leave to appeal from the appeal tribunal was dismissed with costs: see Storry v Chief Executive, Department of Justice and Attorney General [2024] QCA 22 (the reasons).

3. It was a short point that was dealt with by this Court. Ms Storry and her company Storry Real Estate Pty Ltd were the subject of disciplinary proceedings in QCAT. They filed an application to strike out the proceedings summarily pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) which was unsuccessful before a Senior Member. The applicants applied for leave to appeal to the appeal tribunal. In Storry v Chief Executive, Department of Justice and Attorney-General [2022] QCATA 43, Judicial Member McGill SC ordered that:

   “1.Application by Ms Storry for leave to appeal from the decision of the Tribunal of 22 April 2021 is stayed under the Bankruptcy Act 1966 (Cth) s 60(2).

   2.Application by Storry Real Estate Pty Ltd for leave to appeal from the decision of the Tribunal on 22 April 2021 is dismissed.”

4. The Court noted (at [28] of the reasons) that there had been no satisfactory explanation for the delay of 11 months in filing the application for leave to appeal to the appeal tribunal. Even though this Court considered (at [17]) that Ms Storry had raised an arguable error of law on the part of the Judicial Member in respect of the application of s 60(4) of the Bankruptcy Act 1966 (Cth), the Court concluded (at [29]) that, even if that error was corrected, Ms Storry’s application confronted the insurmountable difficulty that the proceedings were plainly unsuitable for resolution by summary procedure such as under s 47 of the QCAT Act. The Court therefore concluded (at [29]) that the Judicial Member was right to conclude that leave to appeal to the appeal tribunal should be refused. The Court also observed (at [30]) that the applicants remained able to advance all relevant points at the substantive hearing in the Tribunal.

5. The effect of the series of decisions in the Tribunal, the appeal tribunal and the Court of Appeal in respect of the applicants’ application under s 47 of the QCAT Act is that the applicants did not succeed in having the disciplinary proceeding struck out summarily.

6. The new evidence that Ms Storry relies on is the decision of Member Oliver on 28 August 2024 that adjourned the disciplinary application to a date to be fixed after the final resolution of APL 189-24 and the application was listed for a directions hearing on a date to be advised to the parties after resolution by the appeal tribunal of APL 189-24 was commenced by Ms Storry after the reasons were delivered in this Court in appeal number 5381 of 2023.  APL189-24 concerns a review of claims made against Anthony Storry Real Estate Trust Account in respect of funds held on behalf of clients of the real estate agency.

7. Ms Storry appears to think that Member Oliver’s decision of 28 August 2024 vindicates the application that she had brought under s 47 of the QCAT Act.

8. The subsequent progress in the Tribunal of the disciplinary proceedings against Ms Storry and her company is not a basis for re-opening appeal number 5381 of 2023 which was disposed of on the basis that there was no error in the appeal tribunal or the Tribunal in considering that the disciplinary proceedings were unsuitable for resolution by summary procedure.

9. In the application filed on 21 October 2024 in appeal number 5381 of 2023, the applicant also seeks to re-open earlier proceedings between the same parties in this Court in appeal numbers 8237 of 2020 and 13106 of 2021.  That was part of the relief that was also before this Court that was disposed of at [26]-[27] of the reasons where it was observed that Ms Storry “was unable to articulate a coherent basis” for seeking orders for this Court to hear consolidated matters for finalisation and re-open appeal numbers 13106 of 2021 and 8237 of 2020 “sequenced as consolidated hearings”.  This Court therefore disposed of that part of the application in a summary way and therefore did not engage on the merits of the arguments that Ms Storry wished to pursue in relation to those finalised appeals.

10. In any case, it is not appropriate in the current re-opening application brought in appeal number 5381 of 2023 to repeat the relief that Ms Storry has previously unsuccessfully sought in the same proceeding to re-open other Court of Appeal proceedings.

11. When the nature of the application dealt with by this Court in the reasons (which was merely an application for extension of time to apply for leave to appeal) is taken into account, it is an abuse of process for Ms Storry to agitate the same relief again in a re-opening application which would only be a re-opening of the application for extension of time to apply for leave to appeal.  The subsequent order made by Member Oliver is not relevant to the correctness of the decision reached by this Court in respect of that extension of time application.

12. The re-opening application filed on 21 October 2024 is struck out as an abuse of process.