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[2024] QCA 22
General information, not legal advice.
Court of Appeal (Qld)
2024-02-23
Morrison and Dalton JJA and Fraser AJA
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Storry & Anor v Chief Executive, Department of Justice and Attorney General [2024] QCA 22
PARTIES: VENETIA LOUISE STORRY / (first applicant) / STORRY REAL ESTATE PTY LTD / (second applicant) / v / CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL / (respondent)
FILE NO/S: Appeal No 5381 of 2023 / QCATA No 43 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Extension of Time
ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2022] QCATA 43 (Judicial Member McGill SC)
DELIVERED ON: 23 February 2024
DELIVERED AT: Brisbane
HEARING DATE: 12 February 2024
JUDGES: Morrison and Dalton JJA and Fraser AJA
ORDER: Application for an extension of time to apply for leave to appeal be dismissed, with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the applicants filed an application to dismiss or strike out the disciplinary proceeding, under s 47 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the applications were dismissed by a Senior Member of the tribunal – where the applicants filed for leave to appeal from this decision in QCAT – where the Judicial Member on appeal, stayed one application under s 60(2) of the Bankruptcy Act 1966 (Cth) and dismissed the other – where the applications for leave to appeal are out of time by 11 months – where the applicants had failed to demonstrate any arguable point of law to be raised in respect of the Judicial Member’s conclusion – whether the case was one which ought to have been determined summarily and did not warrant a substantive hearing on the merits – whether the extension of time should be granted / Bankruptcy Act 1966 (Cth), s 60(4), s 60(2) / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 150(3) / Fisher v Transport for NSW (2016) 316 FLR 72; [2016] NSWSC 1888, considered / General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, considered / Luck v Chief Executive Officer of Centrelink (2017) 251 FCR 295; [2017] FCAFC 92, considered / Luck v Secretary of Services Australia (2022) 406 ALR 567; [2022] FCAFC 195, considered / R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
COUNSEL: The applicants appeared on their own behalf / A J Robinson for the respondent
SOLICITORS: The applicants appeared on their own behalf / Office of Fair Trading for the respondent
MORRISON JA: The applicants, Ms Storry (in her own right), and her company, Storry Real Estate Pty Ltd seek leave to appeal from the decision of a Judicial Member of the Queensland Civil and Administrative Appeal Tribunal.1 That decision was handed down on 26 April 2022.
Consequently, the applicants are more than eleven months out of time to bring such an application and require an extension of time within which to bring such an application. Relevant factors for the Court to consider in such an application include the length of delay, whether there is a satisfactory explanation for that delay, and whether it is in the interests of justice to grant the extension.2
If leave is granted any consequent appeal is confined to a question of law.3
On 1 August 2019, the respondent (the Chief Executive) filed an application in the Queensland Civil and Administrative Tribunal, commencing a disciplinary matter against the applicants under the Property Occupations Act 2014 (Qld). The proceedings concern alleged contraventions of the Agents Financial Administration Act 2014 (Qld). The precise nature of the proceedings is not relevant for present purposes but the following synopsis of the allegations will suffice: Ms Storry was a licensed real estate agent;she controlled Storry Real Estate Pty Ltd; that company held a real estate agent’s licence for a time;Ms Storry’s late father was a licensed real estate agent, carrying on business under the name of Anthony Storry Real Estate;after her father became ill Ms Storry took control of his business, which was subsequently carried on by Storry Real Estate Pty Ltd;Storry Real Estate Pty Ltd operated a bank account which was not a trust account as required by the Agents Financial Administration Act, and that account had not been operated in accordance with that Act.
On 21 November 2019, Ms Storry filed an application to dismiss or strike out the disciplinary proceeding, under s 47 of the QCAT Act. The application was heard on the papers by a Senior Member of the Tribunal, and dismissed on 22 April 2021.
On 1 June 2021, Ms Storry and the company filed an application for leave to appeal from that decision.
Those applications were heard by the Judicial Member on 13 April 2022, and orders were made on 26 April 2022. In the case of Ms Storry, the Judicial Member held that her application was stayed under s 60(2) of the Bankruptcy Act 1966 (Cth). In the case of Storry Real Estate Pty Ltd, the application was dismissed.
Ms Storry’s application below
The Judicial Member dealt with a preliminary issue concerning Ms Storry’s standing to apply for leave to appeal. That arose because on 18 March 2022 a sequestration order was made against her under the Bankruptcy Act. The Chief Executive took the point that as a result of that order, Ms Storry’s application for leave to appeal had been stayed under s 60(2), as the Trustee had not elected to pursue that application.
The Judicial Member referred to a number of authorities concerning whether Ms Storry’s application came within s 60(2), under which an “action” commenced prior to bankruptcy is stayed. The Judicial Member concluded that an application for leave to appeal came within the scope of an “action” for the purpose of s 60(2).
The Judicial Member then held that, contrary to the contention advanced by Ms Storry, the exception in s 60(4) did not apply. That section relevantly provides:
“(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
any personal injury or wrong done to the bankrupt ….”
The Judicial Member referred to the “classic test” of the scope of s 60(4), namely whether the damages or part of them were to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character, and without reference to his rights of property.4
The judicial member held that the application for leave to appeal did not come from within s 60(4), saying:5
“[11] That test was applied by the Court of Appeal in Warren v Queensland Law Society (Inc) (supra), in holding that an appeal against an application to set aside the appointment of receivers to a solicitor’s practice was not within s 60(4), no matter how personally aggrieved the solicitor may feel about the action of others. There is a difference between suing for defamation, and defending a disciplinary proceeding on the ground that the material relied on is false and defamatory.
[12] In the circumstances, therefore, I consider that that test applies here, and as a result the application for leave to appeal is not within s 60(4). Hence the present application is covered by s 60(2), and has been stayed. Ms Storry is not entitled to pursue it, and unless the trustee elects to pursue it, it will be brought to an end by the operation of the Bankruptcy Act. That circumstance does not affect the appeal by the company, which I can proceed to hear and determine.”
Ms Storry’s contended point of law
Before this Court Ms Storry contended that the Judicial Member made an error of law in holding that her application for leave to appeal to the QCAT Appeal Tribunal did not come within s 60(4) of the Bankruptcy Act. In that respect she relied upon the decision in Fisher v Transport for NSW.6 In that case McCallum J held that a bankrupt bus driver’s application for judicial review of a decision to cancel his authority as a bus driver, fell within the exception in s 60(4) because the notion of “personal injury or wrong” in that section might include an adverse administrative decision.7
Though we were not referred to them, two appellate decisions have adopted Fisher.
In Luck v Chief Executive Officer of Centrelink8 the decision which was the subject of an application for judicial review, was to restrict the applicant’s access to Centrelink because of her alleged unacceptable behaviour in not being prepared to listen to explanations and yelling at staff members. The applicant alleged the decision was one which impugned her character. The Full Court of the Federal Court held that the application for judicial review, concerning a decision alleged to have impugned the applicant’s character, was not a right of action that passed to the trustee in bankruptcy, but was within the exception of s 60(4).9
In Luck v Secretary of Services Australia10 the Full Court of the Federal Court adopted Fisher, holding that the exception under s 60(4) applies to a “narrow class of action where it relates to the ‘personal’ – the injury is one to the person, their character, or feelings”.11
The disciplinary proceedings seek an order that Ms Storry is not a suitable person to hold a licence as a real estate agent. Her application for leave to appeal is part of her “action” to resist that order. Whilst it is not necessary to determine finally whether that comes within s 60(4) of the Bankruptcy Act, it is right to say that Ms Storry has raised an arguable error of law on the part of the Judicial Member, in relation to her application.
The company’s application
“[8] It is not proposed to address here the prospects for success of the disciplinary referral. All allegations relevant to the referral, made by both parties, need to be tested at a full hearing of the matter, rather than being summarily determined in proceedings brought pursuant to s 47 of the QCAT Act. For present purposes, it is sufficient to state that it cannot be said that on the material presently before the tribunal the application or referral of the disciplinary proceedings is ‘so obviously untenable that it cannot possibly succeed’ or that ‘under no possibility can there be a good course of action’.”
The Judicial Member dealt with individual complaints made by Ms Storry, finding that they had no proper basis. These included points raised before this Court also, such as:the way in which the initial hearing was determined on the papers, denying procedural fairness;the initial hearing was conducted before a review that had been ordered;a misapplication of s 116 of the Bankruptcy Act; andthe Senior Member’s treatment of an application to adduce further evidence.
None of those points require comment as they lack merit. Others were made in oral submissions but were equally meritless and need no further mention.
The Senior Member then turned to the decisive point, which was whether the case was one which ought to have been determined summarily and did not warrant, as the Senior Member had found, a substantive hearing on the merits.
The Judicial Member held that the case was plainly one which required a substantive hearing, and it was inappropriate to determine it summarily. The significant findings by the Judicial Member include:the factual issues raised by the substantive application were “obviously complex”, such that he doubted that the alleged defective nature of the proceedings could be demonstrated easily or quickly;14during the course of Ms Storry’s submission it became apparent that Storry Real Estate Pty Ltd was not the holder of a licence at the time the trust account was opened in its name; that fact, plus Ms Storry’s explanation of the circumstances, led the Judicial Member to find that “there may well be substance to [the disciplinary proceeding]”;15he agreed with the Senior Member “that these are matters properly dealt with at a hearing of the substantive application”;16he could see no reason to doubt the conclusion of the Senior Member that “it was not so clear that the proceeding was instituted for an improper purpose as to justify terminating it summarily”;17 andthe Senior Member’s conclusion, that the matters were appropriately dealt with on a hearing of substantive application rather than summarily, was not just “clearly open on the material”, but “the obvious conclusion”.18
The Judicial Member said:19
“If an application under s 47 seeks to challenge in detail the factual basis of a factually complex disciplinary proceeding, it is in substance seeking to convert the hearing of the s 47 application into the hearing of the substantive application. That is not an appropriate use of s 47, and does not satisfy the established tests for its operation.”
No error of law
Application to adduce evidence
Other applications
The amended application for leave to appeal also sought orders in these terms: (a) “Allow QCAT leave for the court to hear consolidated matters in the Court of Appeal for finalisation”, and (b) “Reopen CA 13106/21 and CA 8237/20 sequenced as consolidated hearings.”
Ms Storry was unable to articulate a coherent basis for either.
Explanation of the delay
Conclusion
As I have explained above, Ms Storry has raised an arguable error of law in respect to the Judicial Member’s resolution of her application for leave to appeal. However, even if that error was corrected, her application confronts the same insurmountable difficult, namely that the proceedings are plainly unsuitable for resolution by summary procedure such as under s 47 of the QCAT Act. The Judicial Member was plainly right to conclude that leave to appeal to the QCAT Appeal Tribunal should be refused.
The Judicial Member’s decision is not one in respect of which it might be said that an appeal was necessary to correct a substantial injustice.20 The applicants remain able to advance all relevant points at the substantive hearing.
There is no basis to extend the time or grant leave to appeal to this Court. The application for an extension of time to apply for leave to appeal must be dismissed, with costs.
DALTON JA: I agree with Morrison JA.
FRASER AJA: I agree with Morrison JA.
Storry v Chief Executive, Department of Justice and Attorney-General [2022] QCATA 43. ↩
R v Tait [1999] 2 Qd R 667; [1998] QCA 304. ↩
Section 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). ↩
Reasons below at [10], citing Cox v Journeaux (No 2) (1935) 52 CLR 713, at 721. ↩
Reasons below at [11] – [12]. ↩
(2016) 316 FLR 72; [2016] NSWSC 1888. ↩
Fisher at [36]. ↩
[2017] FCAFC 92. ↩
Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92, [22]-[25]. ↩
[2022] FCAFC 195. ↩
Luck v Secretary of Services Australia [2022] FCAFC 195, [48]-[49]. ↩
(1964) 112 CLR 125 at 129. ↩
Reasons at first instance, [8]. ↩
Storry & Anor
Chief Executive, Department of Justice and Attorney General [2024] QCA 22
(2016) 316 FLR 72
(1964) 112 CLR 125
(2017) 251 FCR 295
(2022) 406 ALR 567
(1935) 52 CLR 713
Reasons below at [17]. ↩
Reasons below at [19]. ↩
Reasons below at [21]. ↩
Reasons below at [22]. ↩
Reasons below at [25]. ↩
Reasons below at [25]. ↩
Pickering v McArthur [2005] QCA 294; Berry v Commissioner of Police [2014] QCA 238. ↩