Storry v Business Licensing Authority

Federal Court of Australia|2023-08-15|Before: Derrington J

The application for leave to appeal filed on 6 June 2023 be refused.
The Applicant pay the Respondent's costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SARAH C DERRINGTON J: 1 On 16 February 2023, the primary judge summarily dismissed Ms Storry's appeal from a decision of the Administrative Appeals Tribunal made on 5 October 2021. By that decision, the Tribunal dismissed Ms Storry's application, pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), for review of a decision of the Business Licensing Authority of Victoria (BLA) made on 26 August 2021 refusing to grant Ms Storry a real-estate licence under s 23(1)(a) of the Mutual Recognition Act 1922 (Cth). 2 Ms Storry's Notice of Appeal was lodged on 22 October 2021. By interlocutory application filed on 26 November 2021, the BLA sought an order that the application be summarily dismissed "because the [applicant] [had] no reasonable prospects of successfully prosecuting the proceeding". 3 On 6 March 2023, Ms Storry filed an appeal from the judgment of the primary judge. It is not clear from the reasons of the primary judge whether he relied solely on s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to dismiss the appeal or also on s 31A and r 26.01 of the Federal Court Rules 2011 (Cth) as was the basis of the interlocutory application filed by the BLA. 4 For the purposes of appeal, a judgment given under s 31A of the FCA Act is taken to be interlocutory, with the consequence that Ms Storry requires leave to appeal: ss 24(1A) and 24(1D)(b) of the FCA Act; Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 at [11]. If the primary judge relied solely on s 23, it too bears the characteristics of an interlocutory judgment because its result was summary dismissal of the appeal. 5 In the Matter of An Appeal by Gaye Alexandra Mary Luck [2003] HCA 70; 78 ALJR 177 at 178-179, the High Court reiterated at [9] the clear rule in Tampion v Anderson (1973) 48 ALJR 11, An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. 6 The NSW Court of Appeal explained in Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [11]-[12], that an order summarily dismissing a proceeding because it is frivolous, vexatious, an abuse of the process of the court, or does not disclose a reasonable cause of action, was interlocutory because of its legal effect: there was no triable issue and the order, therefore, did not finally determine the rights of the parties or create res judicata estoppels.

Should a stay be granted? 7 On 14 August 2023, by email sent after 5 pm, Ms Storry lodged an application to stay the hearing of the application for leave to appeal listed for 15 August 2023 until the High Court determines her application for removal of the appeal to the High Court, pursuant to s 40 of the Judiciary Act 1903 (Cth), which was filed the day after the parties were notified of this application's listing date on 3 August 2023. Given that no proceeding is extant pending the resolution of application for leave to appeal, I treated the application as one for an adjournment. 8 After hearing submissions, I indicated to the parties that I was not persuaded that an adjournment should be granted whilst the removal application is determined. First, it is clear that the mere making of an application under s 40 of the Judiciary Act does not preclude this Court from proceeding to consider interlocutory or final issues in a proceeding in relation to which the removal application is made. Secondly, I have borne in mind the observations of the High Court itself in Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [45], in which it was said: Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this Court's urgent decision should the Court make an order for removal. … The s 40(1) power to remove is not intended to convert this Court into a court exercising a general supervisory jurisdiction over lower courts. 9 Thirdly, I have perused the removal application and the affidavit filed in support. I consider there is a real likelihood that the High Court might decline to make an order for removal. 10 Finally, Counsel for the BLA was already en route from Melbourne to Brisbane when the BLA was notified of the application. The BLA would be prejudiced by the wasted costs of the appearance and no explanation was forthcoming about why the application was brought at the eleventh hour. 11 In those circumstances, and mindful of s 37M of the FCA Act, I refused to grant an adjournment.

Principles for the grant of leave 12 It is well accepted that an applicant for leave to appeal must generally demonstrate two criteria. First, that the decision in question is "attended with sufficient doubt to warrant its being reconsidered by the Full Court"; and secondly, that "substantial injustice would result if leave were refused, supposing the decision to be wrong": Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 at [35]; Davidson v Official Receiver [2021] FCAFC 73 at [15]. While those two criteria may not represent a "hard and fast rule" (Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [29]), they nevertheless provide "general guidance which the Court should normally accept": Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 at [39].

Is the decision of the primary judge attended by sufficient doubt? 13 As to the first of the two Decor criteria, it is clear that, to secure leave to appeal, Ms Storry does not have to demonstrate that the proposed grounds of appeal are likely to succeed, or even that she has strong grounds. It need only be demonstrated that there is sufficient doubt about the correctness of the judgment to warrant appellate reconsideration. 14 Ms Storry's sole ground of appeal is that the primary judge erred in taking into consideration irrelevant evidence and failed to take into consideration relevant evidence. She relies on an affidavit sworn on 5 June 2023, which is in the nature of submissions. Those submissions are premised on Ms Storry's erroneous understanding of the issues that were in fact before the primary judge. The issue before the primary judge was whether there was any prospect of the Tribunal making a different decision upon review, assuming that it had erred, in circumstances where Ms Storry no longer held a licence that would entitle her to mutual recognition in Victoria by the BLA. 15 Ms Storry also relied on written submissions dated 14 August 2023. Ms Storry submitted that the primary judge's decision was attended by sufficient doubt as to warrant leave to appeal because he failed to consider that the finding of the Tribunal as to her misstatement would have adverse consequences for future applications for registration or licensing. She contends further that the primary judge ought to have found that the decision to refuse her mutual recognition under s 23(1)(a) of the MRA was "a significant error". 16 Ms Storry had applied to the BLA for an estate agent's licence on 16 July 2021. As part of that application, Ms Storry signed and undated witnessed statutory declaration, in which she declared: 4. I am not the subject of disciplinary proceedings in any State or Territory (including preliminary investigations or actions that may lead to disciplinary proceedings) in relation to the occupation(s) listed in my application. 17 Ms Storry re-submitted to the BLA the same statutory declaration re-witnessed by a different Justice of the Peace and dated 10 August 2021. 18 That statement was not true. Ms Storry was at the time the subject of disciplinary proceedings before the Queensland Civil and Administrative Tribunal (QCAT) commenced by the Office of Fair Trading (OFT) on 1 August 2019. Ms Storry disputed those proceedings and provided the BLA by email dated 19 August 2021 with her version of events, including that the proceedings were under appeal before QCAT. 19 Ms Storry had attempted to have the disciplinary proceedings dealt with in two ways. First, on 21 December 2018, she applied to QCAT for a review of the OFT's decisions which underpinned the decision to commence disciplinary proceedings, being several decisions made with respect to the operation of the Storry Real Estate Trust account. When the OFT's decisions were confirmed by Member Kanowski on 1 April 2020, Ms Storry then sought statutory review of those decisions in the Supreme Court of Queensland pursuant to the Judicial Review Act 1991 (Qld). That application was dismissed by the Supreme Court on 15 July 2020. An application for leave to appeal from that judgment was dismissed by the Queensland Court of Appeal on 2 March 2021: Storry v Chief Executive of the Office of Fair Trading [2021] QCA 30. 20 Secondly, on 21 November 2019, Ms Storry applied to QCAT to strike out the disciplinary proceedings initiated by the OFT. On 27 April 2021, QCAT dismissed that application. On 1 June 2021, Ms Storry lodged an appeal from that decision. Leave to appeal was refused on 26 April 2022: Storry v Chief Executive of the Office of Fair Trading [2022] QCATA 43. It does not appear that any further appeal has been filed in the State Courts. 21 In oral submissions before me, Ms Storry maintained that she was "legally correct" to have denied she was the subject of any disciplinary proceedings at the time. This accorded with her evidence before the Tribunal where she said (Tribunal's Reasons at [27]): No, what I understand legally is there is a dismissal application that has been previously accepted on a summary basis and now the dismissal application has gone to a hearing (indistinct) of which is appealed because I believe it's under a - a dismissal, and I am trying to get a summary basis reinstated - and they - under dismissal. I do not believe there is current proceedings against me. I believe a dismissal is current legally on foot in QCAT. 22 The Tribunal concluded, at [37]: Upon review of the evidence before the Tribunal, it is clear that the Applicant had been subject to disciplinary proceedings at the time she made her application to the BLA on 16 July 2021, despite stating she had not been subject to such proceedings in two signed statutory declarations. The Tribunal is of the view that the Respondent made the correct decision to refuse the registration of the Applicant, based on the Applicant providing a false statement, in accordance with section 23(1)(a) of the Mutual Recognition Act. 23 There was nothing put before the primary judge that could alter that conclusion. No appellate process had been successful in dismissing those proceedings and, indeed, even if an appellate process had been successful, it would not have altered the fact of Ms Storry's misstatement at the time of her application to the BLA. The effect of that conclusion on Ms Storry's future prospects for registration or licensing was not a matter relevant to the decision of the primary judge. 24 Further, the primary judge was correct to observe, at [60], that Ms Storry's reference to the High Court decision in Victorian Building Authority v Andriotis [2019] HCA 22 takes the matter no further. To the extent that she relies on it for the proposition that it precludes the BLA from considering whether she made a material misstatement because the first State (Queensland) had already determined that she was of good character, that reliance is misconceived. Although there is no residual discretion in the second State to refuse registration on character grounds, s 23 of the MRA expressly provides for the circumstances in which the second State may refuse registration, one of which is making a false statement: Andriotis at [90] per Gageler J; at [128] per Nettle and Gordon JJ. That is the express section of the MRA relied upon by the BLA in refusing Ms Storry's application. 25 To the extent that Ms Storry submits that the primary judge failed to consider that the hearing of an appeal in relation to the BLA's refusal to issue a licence was not moot, that submission must be rejected. Before the primary judge, the OFT submitted that Ms Storry's appeal from the decision of the Tribunal was moot because, as she no longer held a real estate licence in Queensland, she was not entitled to mutual recognition under the MRA. 26 There was no dispute before the primary judge that Ms Storry's real estate licence had been cancelled on 18 March 2022 pursuant to s 77 of the Property Occupations Act 2014 (Qld) by reason of her insolvency. On 22 March 2022, a sequestration order was made against Ms Storry. All avenues to appeal from the sequestration order were closed by the judgment of Logan J: Storry v Weir [2022] FCA 1484. Ms Storry's Supreme Court proceedings remain stayed: Storry v Weir [2023] QCA 4. The primary judge took into account the circumstances of Ms Storry's challenges to her bankruptcy which, at the time of judgment, had reached finality unsatisfactorily from Ms Storry's point of view, subject only to an application for special leave to appeal to the High Court (which Ms Storry indicated in oral submissions was not yet filed in final form). 27 As the primary judge concluded at [54], correctly with respect, "the unchallenged evidence is that Ms Storry is not registered in the first State (Queensland) for an occupation that is the equivalent to an occupation in the second State (Victoria). That fundamental requirement is missing in these circumstances". Consequently, even if the BLA had been wrong about her misstatement in her application, it would be futile to revisit the merits of that issue - Ms Storry simply does not satisfy the primary requirement for mutual recognition under the MRA. 28 The decision is not attended by sufficient doubt for leave to be granted.

Will refusal of leave cause substantial injustice? 29 As for the second Decor criteria, it may generally be accepted that an applicant for leave to appeal an interlocutory decision is likely to suffer substantial injustice, supposing the decision to be wrong, if the decision has the practical effect of finally determining the rights of the parties, or determines "a substantive right": Decor at 400. Those circumstances generally provide a prima facie case, or at least a strong ground, for the grant of leave to appeal: Ex parte Bucknell (1936) 56 CLR 221 at 225-226; Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43]. 30 In the present case, in the words of the plurality of the High Court in Ex parte Bucknall, I have formed "a clear opinion adverse to the success of the appeal". I accept that Ms Storry feels aggrieved by the decisions to date and considers that substantial injustice to her will result if leave to appeal from the decision of the primary judge is refused. She has been relentless in her attempt, as she sees matters, to the set the record straight. She feels deeply that her reputation cannot be restored other than by a successful appeal from the decision of the AAT. Her reputation may not have been quite as tarnished had she simply stated, truthfully, in her statutory declaration that she was the subject of disciplinary proceedings and then provided what she claims to be the exculpatory material. That ship has now sailed. The BLA cannot grant Ms Storry a licence under the MRA because she no longer holds a Queensland licence. 31 In all the circumstances, there is no substantial injustice in refusing leave to appeal.

Disposition 32 For these reasons, the primary judge decision's to summarily dismiss Ms Storry's appeal is not attended by any sufficient doubt to warrant its reconsideration by an appellate court and no substantial injustice is caused by that refusal in the particular circumstances of this case. 33 Leave to appeal must be refused. There is no reason why Ms Storry should not pay the BLA's costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.

Mutual Recognition Act 1922(Cth)s 23(1)(a)

Federal Court of Australia Act 1976(Cth)ss 23, 24(1A), 24(1D)(b), 31A, 37M

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