Cotter v Chief Executive, Department of Attorney-General & Ors [2024] QCATA 55

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cotter v Chief Executive, Department of Attorney- General & Ors [2024] QCATA 55 PARTIES: KATHLEEN COTTER (applicant/appellant) v CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (first respondent) CAR AUCTIONS PTY LTD (second respondent) JESSICA PAGE (third respondent) LEVI JACKSON (fourth respondent) THOMAS MUTCH (fifth respondent) APPLICATION NO/S: APL335-22 ORIGINATING APPLICATION NO/S: OCL004-21 MATTER TYPE: Appeals DELIVERED ON: 29 April 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: 1. The appeal is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING AND REGULATION OF OTHER PROFESSIONS OR TRADES – DEALERS – OTHER DEALERS – where misappropriation of money by car dealer or agent – where applicant applied for a payment from fund established under the Agents Financial Administration Act 2014 (Qld) – where applicant resided outside of Queensland – where car dealer had Queensland registered address – where money paid into Queensland branch bank account – where car dealer and its agent were operating outside Queensland -- 1 of 10 -- 2 at relevant times – where tribunal at first instance held that claim failed as not sufficient connection with Queensland – whether in the circumstances it was open to make a claim under the Queensland Act Acts Interpretation Act 1901 (Cth), s 15AA, s 21 Acts Interpretation Act 1954 (Qld), s 35 Agents Financial Administration Act 2014 (Qld), s 6, s 80, s 82 Australia Act 1986 (Cth), s 2 Constitution Act 1867 (Qld), s 2 Constitution of Queensland 2001 (Qld), s 8 Electronic Transactions (Queensland) Act 2001 (Qld), s 25 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 14, s 18, s 215, s 216 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 146 BHP Group Ltd v Impiombato (2022) 96 ALJR 956 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 Cotter v Car Auction Pty Ltd & Ors [2022] QCAT 364 Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 Pearce v Florenca (1976) 135 CLR 507 R v Collins (1986) 44 SASR 214 R v Harden [1963] 1 QB 8 Reg v Hildebrandt [1964] Qd R 43 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 Ward v The Queen (1980) 142 CLR 308 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The applicant, a resident of Tasmania, engaged the second respondent, Car Auction Pty Ltd (‘CA’), to locate and purchase a vehicle on her behalf. On receiving advice that a suitable vehicle had been located, the applicant electronically transferred the sum of $23,450 to a nominated Queensland operated bank account, made payable to CA. [2] The applicant received neither the vehicle nor a refund of any part of the money paid.1 She applied for payment from the fund established under the Agents Financial Administration Act 2014 (Qld) (‘the AFA Act’), which, by section 82(1), allows for compensation to those who 1 In the decision at first instance, it is stated: ‘For the purposes of this proceeding, it may be assumed that Car Auction Pty Ltd misappropriated her money’: see Cotter v Car Auction Pty Ltd & Ors [2022] QCAT 364, [3] (‘Cotter’). -- 2 of 10 -- 3 suffer financial loss because of misappropriation of funds or other contraventions of the AFA Act by a person who acts as a licensed agent.2 The fund is administered by the first respondent. [3] The Tribunal at first instance confirmed the decision of the first respondent that the applicant had no grounds for making the claim, in that the claim lacked sufficient connection with the State of Queensland to attract the operation of the AFA Act. That was because CA and its agents were operating in Tasmania at all relevant times and were not located in Queensland or carrying on business in Queensland when the relevant transactions were entered into or the misappropriation occurred.3 [4] The applicant now appeals that decision, on the ground that the Tribunal erred in law in finding that the AFA Act did not apply in the circumstances of the present case. It is submitted that there is a sufficient connection with Queensland as ‘the business was registered in Queensland, (CA) primarily conducted its business in Queensland and the money was misappropriated in Queensland’. Background facts [5] The Tribunal made the following findings of fact, which have not been challenged in this appeal, though there is dispute as to the implications to be drawn from those facts: (a) CA was incorporated in Queensland and the public records of the Australian Securities Investments Commission indicated a Queensland address for the registered office and principal place of business of CA.4 (b) In relation to the vehicle and the payment made, the dealings of the applicant were with an agent of CA, Levi Jackson. In the materials, there is also reference to a Zac Lawless. In the Tribunal, at first instance, it is noted: ‘It is uncontroversial that Zac Lawless and Levi Jackson are the same person’.5 In these reasons he is referred to as Levi Jackson. (c) The vehicle was located outside of Queensland.6 (d) Although Levi Jackson and his partner Ms Jessica Page, the sole director of CA, had previously resided in and carried on business in Queensland, on the evidence at the time of the misappropriation they resided in Tasmania and the business of CA was operating in Tasmania.7 (e) The misappropriation occurred on or after 9 September 2020.8 (f) The applicant’s first contact with Levi Jackson was on 16 July 2020 and, after various telephone conversations, on 14 August 2020 she transferred $330 to CA, said to be 50% of a membership fee. 2 While neither CA nor its agent held a relevant licence, by s 80 of the AFA Act an ‘agent’ includes a person who is not licensed under an ‘Agents Act’, but who acts as a licensee. An ‘Agents Act’ includes the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). 3 Cotter (n 1) [18], [35]. 4 Ibid [4]. 5 Ibid [20]. 6 Ibid [7]. 7 Ibid [24]. 8 Ibid [23]. -- 3 of 10 -- 4 (g) On 8 September 2020, Levi Jackson advised the applicant that he had successfully bid on a vehicle for her, and, on the same day, she received an invoice from CA for $23,450.9 (h) On 8 and 9 September 2020, the applicant transferred the sum of $23,450 to the Queensland bank branch account of CA.10 (i) The applicant received neither the car nor a refund of her money and the assumption was made that CA had misappropriated her money.11 (j) The signature block on the emails received by the applicant from CA from 20 August 2020 included the Car Auction logo and a reference to Tasmania only, while the invoice of 8 September 2020 included the Car Auction logo and a Tasmanian address.12 The reach of the AFA Act [6] The primary question in the present case is whether, in the circumstances outlined, section 82(1) of the AFA Act applies, so as to enable a claim against the fund. That involves consideration of the terms of the AFA Act and, potentially, the permissible reach of Queensland legislation. [7] Section 82 of the AFA Act is headed ‘Claims’ and provides at section 82(1)(b): A person may claim against the fund if the person suffers financial loss because of the happening of any of the following events— …. (b) a stealing, misappropriation or misapplication by a relevant person of property entrusted to the person as agent for someone else in the person’s capacity as a relevant person; [8] Also, section 82(1)(d) allows a claim where there is a contravention by a relevant person of specified provisions of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (‘the MD Act’), including section 215 and section 216. Section 215 is headed ‘Wrongful conversion and false accounts’, while section 216(1) is headed ‘False representations about goods’ and provides: A licensee or motor salesperson must not represent in any way to someone else anything that is false or misleading about the sale or auction of goods. [9] By section 80 of the AFA Act, a ‘relevant person’ means the following: (a) an agent; (b) an agent’s employee or agent, or a person carrying on business with the agent; (c) a person having charge or control, or apparent charge or control, of an agent’s registered office or business. 9 In the reasons for the Decision, it is stated that the sum was $24,350, however the invoice and claim were for $23,450: see Cotter (n 1) [19](d). 10 Cotter (n 1) [16]. 11 Ibid [3]. 12 Ibid [25]-[26]. Also, a Tasmanian motor vehicle registration certificate indicated a Tasmanian address for both Jackson/Lawless and the garaging of the vehicle as at 12 August 2020: see ibid [28]. -- 4 of 10 -- 5 [10] Also, by section 80, an ‘agent’ includes a person who is not licensed under an Agents Act, but who acts as a licensee. [11] It is noted that neither at first instance nor on appeal has there been any reference made to the potential applicability of the provisions of the MD Act. In any event, there is no reference to any specific false or misleading representation made, whether any representation was made prior to the time that Levi Jackson and the business of CA were operating from Tasmania,13 and whether, in terms of section 216(3) of the MD Act, any representation was made about a matter ‘and the person does not have reasonable grounds for making the representation’. It is to be imagined that, at least initially, the latter is to be assessed as at the time of the making of any representation. Also, it would seem that any relevant representation would have been made in Tasmania.14 [12] On the other hand, in relation to the claim based on misappropriation, it is not in dispute that the appellant engaged CA, as a buyer’s agent, to purchase the vehicle on her behalf.15 Leaving to one side the locale of the conduct in question, the first respondent does not submit that CA was not an agent within the meaning of the AFA Act. Rather, it is the position of the first respondent that the AFA Act does not apply because the conduct in question had no relevant connection with Queensland. In particular, CA was not carrying on business in Queensland at the relevant time and, accordingly, section 82(1) of the AFA Act does not apply. [13] As noted at [6], above, a preliminary question is the permissible reach of Queensland legislation. By section 2 of the Constitution Act 1867 (Qld), the Legislative Assembly has power to ‘make laws for the peace welfare and good government’ of the State.16 The High Court has held that a law is one for the peace, order and good government of a State ‘if it is connected, not too remotely with the State which enacted it’.17 In Union Steamship Company of Australia Pty Ltd v King,18 the High Court adopted what was said by Gibbs J in Pearce v Florenca: … it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce (60) where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject-matter of the legislation and the State will suffice. [14] In Pearce v Florenca,19 Gibbs J adopted what was said by Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW):20 … it is within the competence of the state legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion 13 Though the applicant submitted that she engaged the services of CA ‘around August 2020 to source and purchase a motor vehicle on her behalf’, the evidence accepted by the Tribunal at first instance was that at that time CA was carrying on business in Tasmania: see [5](j), above. 14 In relation to electronic communications, see Electronic Transactions (Queensland) Act 2001 (Qld) s 25. 15 Cotter (n 1) [1]. 16 See also Constitution of Queensland 2001 (Qld) s 8 and Australia Act 1986 (Cth) s 2. The latter provision provides that the States have power ‘to make laws for the peace, order and good government of the State that have extra-territorial operation’. 17 Pearce v Florenca (1976) 135 CLR 507, 517 per Gibbs J (‘Pearce v Florenca’). 18 (1988) 166 CLR 1, 14. 19 Pearce v Florenca (n 17). 20 (1937) 56 CLR 336, 375. -- 5 of 10 -- 6 of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. [15] In the context of the permissible reach of Queensland legislation, there is a relevant connection to Queensland. CA was incorporated in Queensland and the public records of the Australian Securities Investments Commission indicated a Queensland address for the registered office and principal place of business of CA: see [5](a), above. [16] However, the question remains as to the intended scope of operation of section 82(1) of the AFA Act. There is no specific reference to any territorial limitation in the legislation. [17] In common law jurisdictions, there is a presumption that legislation does not have extraterritorial effect unless a contrary intention is shown. That is reflected in what was said by O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners Association:21 In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being primâ facie restricted in their operation within territorial limits. [18] Also, in relation to the criminal law, a distinction has been drawn between offences initiated in a State and those having an effect within a State.22 Traditionally, at common law, jurisdiction has been determined on the basis of the latter.23 For example, in R v Harden,24 where the charge was one of false pretences, it was held that, where the activities were initiated in England but completed abroad, the English courts had no jurisdiction. [19] Broadly, what was said by O’Connor J in Jumbunna Coal Mine NL is reflected in section 35(1) of the Acts Interpretation Act 1954 (Qld) (‘the AIA’), which is headed ‘References to Queensland to be implied’. That sub-section provides: In an Act— (a) a reference to an officer, office or entity is a reference to such an officer, office or entity in and for Queensland; and (b) a reference to a locality, jurisdiction or other thing is a reference to such a locality, jurisdiction or other thing in and of Queensland. [20] In BHP Group Ltd v Impiombato,25 after referring to the ‘general presumption’ noted by O’Connor J, Kiefel CJ and Gageler J referred to section 21(1)(b) of the Acts 21 (1908) 6 CLR 309, [363] (‘Jumbunna Coal Mine NL’). 22 Commonly referred to, respectively, as the ‘subjective’ or ‘initiatory’ theory and the ‘objective’ or ‘terminatory’ theory; see, for example, Ward v The Queen (1980) 142 CLR 308, 315, per Stephen J. 23 See, generally, Ward v The Queen (1980) 142 CLR 308. Though the capacity of a State to adopt the subjective theory was recognised in Ward: see, Gibbs J at 314. 24 [1963] 1 QB 8. See also Reg v Hildebrandt [1964] Qd R 43, 50 per Stanley J, 54 per Mack J; R v Collins (1986) 44 SASR 214, 222-6. 25 (2022) 96 ALJR 956, [28] (‘BHP v Impiombato’). -- 6 of 10 -- 7 Interpretation Act 1901 (Cth), which is in substantially the same terms as section 35(1)(b) of the Queensland AIA,26 and stated (citations omitted):27 [36] The concern of s 21(1)(b) of the Acts Interpretation Act with “references to localities jurisdictions and other matters and things” in a Commonwealth statute is not with the manner of expression of a statutory reference but more substantively with the subject matter to which statutory reference is made. Its instruction that all such references are to be “construed” as “references to such localities jurisdictions and other matters and things in and of the Commonwealth” is a requirement that the statute be construed to ensure that a connection exists between the subject matter to which the statute refers, on the one hand, and the Commonwealth of Australia understood compositely as a geographically bounded polity, on the other hand. The “exact nature” of the requisite connection is not prescribed. That is left by the provision to be determined in the construction of the particular statute: “to be implied or imported upon a consideration of the context and the subject matter”. [37] Section 21(1)(b) operates in harmony with s 15AA of the Acts Interpretation Act, which requires preference to be given in the construction of the particular statute to the construction which would best achieve the statutory purpose or object. Depending on what would best achieve the purpose or object of the particular statute in question, a construction which results in the existence of a connection sufficient to satisfy the requirement of the provision might be arrived at in a variety of ways and might well be arrived at through the concurrent application of the common law presumption. The requirement of a provision like s 21(1)(b) has been found in some contexts to be satisfied by treating a law of “apparently universal application” as “applying to acts and omissions taking place in the territory of the legislature”. In other contexts, it has been satisfied by treating the operation of a statute as “hinging on the place of performance of [a] contract”. In yet other contexts, it has been satisfied by limiting the operation of a statute to contracts the proper law of which according to applicable principles of private international law is that of the enacting legislature. [21] In the same case, Gordon, Edelman and Stewart JJ stated (citations omitted): 28 [59] In statutes, like the Federal Court of Australia Act, where there is no express provision relevantly addressing the territorial reach of the subject matter of the statute, the task is to identify the hinge (also referred to as the statutory springboard, general subject matter, object of legislative concern, central conception, character or central focus) of the statute and identify its territorial connection, if any. The applicable provisions, read in context, may have a hinge or subject matter with a clear territorial connection. That task – of identifying the "central focus" of a statute – is purely a question of statutory construction. As Leeming JA said in DRJ v Commissioner of Victims Rights [No 2], the hinge or central focus is identified "as a matter of construction, based on subject matter and scope, and with a regard to internal 26 Section 21(1)(b) provides: ‘references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth’. 27 BHP v Impiombato (n 25) [36]-[37]. 28 Ibid [59], [61]-[63]. -- 7 of 10 -- 8 indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection". … [61] Only after identifying the hinge of the provisions and revealing the territorial connection (if any) of the subject matter, does the question of the application of the common law presumption against extraterritoriality arise. The so- called "presumption" is an interpretive principle whose force depends upon the extent to which the hinge of the provisions departs from common expectations that Parliament's concern with the subject matter is limited to matters within its territory. Put another way, the general common law presumption of territoriality – that an enactment describing acts, events, matters or things in general words, so that, if constrained by no consideration lying outside its expressed meaning, its application would be universal, should not be understood as extending extraterritorially – is a rule of construction only and "it may have little or no place where some other restriction is supplied by context or subject matter [of the statute in issue]". Whether a restriction is supplied by the context or the nature of the subject matter is a question of statutory construction which necessarily precedes the application of the presumption. [62] This Court has never taken a uniform or mechanistic approach to applying the presumption. Where the hinge or the central focus of the subject matter is identified and it does not have a clear territorial connection (that is, it appears to be at large), the presumption will generally require that the hinge be construed as territorially limited, subject to a contrary intention. Where the central focus of the subject matter of the statute, on its proper construction, has a territorial connection, it will ordinarily be unnecessary to look for further territorial restrictions. The presumption has never been understood such that it needed to be applied to all elements or words in a statute. [63] Section 21(1)(b) of the Acts Interpretation Act 1901 (Cth) does not compel a different approach or give rise to a different conclusion. Section 21(1)(b) provides that "[i]n any Act ... references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth". Section 21(1)(b) does not answer the question: what is the matter or thing which should be construed, subject to contrary intent, as "in and of" the Commonwealth? And, as this Court said in Insight Vacations, "the question of geographical limitation arises regardless of the engagement of a provision such as" s 21(1)(b) of the Acts Interpretation Act. The common law rules of statutory construction, including those relating to the "presumption" against extraterritoriality, step in to assist in identifying the territorial restriction. Where the statute is in general terms, and where s 21(1)(b) applies, the approach to construction of the statute and the conclusion are necessarily the same. -- 8 of 10 -- 9 Discussion [22] In the Explanatory Notes to the Agents Financial Administration Bill 2013 (Qld), at 4- 5, it is recognised that there is equivalent legislation in other Australian jurisdictions, which include provisions for a claim fund. Also, at 11, it is stated: The Bill is specific to the State of Queensland but legislation with similar provisions regulating when and how trust accounts are to be kept and establishing a compensation fund for losses arising from dealing with certain licensed agents have been made by all other Australian jurisdictions. [23] For the purposes of the AFA Act that suggests a focus on claims that should appropriately fall within the province of the claim fund of this State, rather than of another State. [24] Also, section 6(1) AFA Act provides that ‘the main object of this Act is to protect consumers from financial loss in dealings with agents regulated under an Agents Act’, including the MD Act. The MD Act regulates persons through the issuing of licences; specifically, motor dealer licences and chattel auctioneer licences: see section 14 of the MD Act. The respondent submits that neither CA nor Levi Jackson ever held licences under the MD Act. Though, as noted at [10], above, for the purposes of the claim fund an ‘agent’ includes a person who is not licensed under an Agents Act, but who acts as a licensee. Nevertheless, it is evident that the MD Act anticipates that a licensee will carry on business in Queensland. Section 18(1)(a) of the MD Act provides that if an applicant for a licence intends to carry on business under the licence immediately after its issue, they must state ‘the place or places in Queensland where the applicant proposes to carry on business under the licence’. That seems to indicate that it is anticipated that the business will be conducted in Queensland and, in turn, access to the fund under the AFA Act presumes misconduct on the part of an agent while operating in Queensland. [25] The difficulty with the applicant’s case is that the link to Queensland is tenuous. While it is evident that at an earlier time CA carried out its operations in Queensland, at the time of the transfer of the $23,450 on 8 and 9 September 2020, and earlier on 20 August when the applicant transferred what was said to be a membership fee, the applicant, Levi Jackson and CA lived in or operated from Tasmania. All relevant communications emanated from that State. Additionally, there is evidence that the relevant car came from NSW. [26] The connection to Queensland is that the ASIC registered Queensland address of CA remained and the $23,450 was paid into a Queensland branch of the relevant bank. However, the latter detail does not necessarily indicate that the money was misappropriated from the account at that branch. For the purposes of misappropriation, it is necessary to show not only that the person received the money but also that they misappropriated the money or failed to account for it consistent with the terms upon which it was received. There is no evidence as to when, how or where the misappropriation occurred. The Tribunal at first instance simply notes that ‘it may be assumed that Car Auction Pty Ltd misappropriated her money’.29 [27] In the materials before the Tribunal at first instance are copies of bank accounts of CA, which show the withdrawal of an amount made payable to a company by the name of Auctions NSW Pty Ltd, which account identifies a vehicle and accords with the description of the vehicle and the amount said to have been paid for it in the invoice provided to the applicant by CA. There is nothing in the materials provided or in the 29 Cotter (n 1) [3]. -- 9 of 10 -- 10 submissions made to indicate whether or not that was a legitimate payment at the time that it was made. [28] The factors that need to be established to attract section 82(1)(b) of the AFA Act are: financial loss; relevant to the present case, a misappropriation; by a ‘relevant person’; and of property. The financial loss was to the applicant, who resided in Tasmania. There is no evidence to suggest that at the time of the misappropriation either Levi Jackson or CA (the ‘relevant person’) lived in or operated from Queensland. Rather, the evidence is to the contrary. It is unclear as to when, where or how the misappropriation occurred.30 The only evident connections to Queensland are the registered address of CA and that at one point in time the money was in an account of a Queensland branch of a bank. There is no direct evidence as to where the money was at the time of the misappropriation or whether, alternatively, it was the car that was misappropriated. [29] Given the terms and evident intention of the relevant legislative provisions, the fact of having a registered business address or a residential address in Queensland is not in itself sufficient to attract the operation of section 82 of the AFA Act. [30] In the circumstances, there is no error on the part of the Tribunal at first instance and the appeal is dismissed. 30 This might also be complicated by the provisions of the Electronic Transactions (Queensland) Act 2001 (Qld) s 25. -- 10 of 10 --