Chief Executive, Department of Justice and Attorney-General v Youssef [2020] QCAT 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chief Executive, Department of Justice and Attorney- General v Youssef [2020] QCAT 123 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (applicant) v GEORGE YOUSSEF (respondent) APPLICATION NO/S: OCL107-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 1 May 2020 HEARD AT: Brisbane DECISION OF: Adjudicator Gaffney ORDERS: The Respondent is liable to pay to the Applicant the amount of $4,050.00 within 21 days of the date of this order. CATCHWORDS: CLAIM FUND – REIMBURSEMENT ORDER – whether reimbursement order should be made – alleged false statements in connection with sale of motor vehicle Agents Financial Administration Act 2014 (Qld), s 82(1), s 116, s 117, s 118, s 119 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 216(1) APPEARANCES: 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 Background [1] This Application arises ultimately from alleged false statements made by the Respondent in connection with the sale of a second-hand BMW Sedan to a purchaser. The purchaser lodged a claim under section 82 of the Agents Financial Administration Act 2014 (Qld) (‘the AFA Act’) against the claim fund established under section 78 of the AFA Act (‘the claim fund’). The purchaser alleged as part of that claim that he -- 1 of 7 -- 2 had suffered a financial loss as a result of false statements made by the Respondent and another person.1 [2] On 14 October 2016, the Applicant, by its delegate, made a decision, relevantly, to the following effect: (a) that the purchaser’s claim be allowed and the amount of $4,050.00 be paid to the purchaser at the expiration of the review period outlined in section 122 of the AFA Act; (b) that the Respondent is liable for the purchaser’s financial loss; and (c) that, pursuant to sections 102(3) and 116(3) of the AFA Act, the Respondent is liable to reimburse the Claim Fund $4,050.00.2 [3] On 28 November 2019 the Applicant filed an ‘Application for a reimbursement order – Agents Financial Administration Act 2014’. The order sought by the Applicant in that document is as follows: ‘[The Respondent] is, pursuant to ss 117 and 119 of the Agents Financial Administration Act 2014, liable to reimburse, and is ordered to pay, to the Claim Fund established under s78 of the Agents Financial Administration Act 2014, the sum of four thousand and fifty dollars ($4,050.00) within 21 days of the date of this order.’ Directions made on 4 December 2019 [4] Directions in this proceeding were made by Senior Member Brown on 4 December 2019. The Directions included, in effect, that if the Respondent failed to file any submissions regarding the Application, or there was no request for an oral hearing, the matter would be determined on the papers. Overview of the applicable legislation [5] To give context to the consideration of the Applicant’s claim, I will give a brief overview of the relevant legislative provisions. Under the AFA Act, a person may claim against the claim fund if he or she suffers financial loss because of (amongst other things) a contravention by a relevant person of section 216 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).3 Section 216(1) of that Act provides that 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. [6] The chief executive may decide the claim or refer the claim to the Queensland Civil and Administrative Tribunal (‘QCAT’).4 If the chief executive proceeds to decide the claim, he or she must allow the claim, wholly or partly, or reject the claim.5 The chief executive must then give the parties an information notice for the chief executive’s decision, which must comply with section 157(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and contain other 1 Information Notice dated 14 October 2016, OFT-1 to the Statement of Claim (‘Information Notice’). 2 Information Notice. 3 AFA Act, s 82(1). 4 Ibid, s 95(1). 5 Ibid, s 100(1). -- 2 of 7 -- 3 information.6 A party who is dissatisfied with the chief executive’s decision may apply, as provided under the QCAT Act, to QCAT for a review of the decision.7 [7] If a claim is allowed, the chief executive must authorise payment from the claim fund in the amount decided by the chief executive.8 [8] Where a person (called the ‘responsible person’) is named in the chief executive’s decision as being liable for a claimant’s financial loss, and an amount has been paid from the claim fund in settlement of the claimant’s claim: (a) the responsible person is liable to reimburse the claim fund to the extent of the amount paid from the fund; and (b) the chief executive may recover that amount as a debt from the responsible person; and (c) before taking action to recover the debt, the chief executive must give a letter of demand to the debtor requiring the debtor to pay the amount to the chief executive within 28 days after receiving the letter.9 [9] If the chief executive decides to allow the claim, and the responsible person has not reimbursed the fund as required under the letter of demand, the chief executive may apply to QCAT for an order that the responsible person (‘the respondent’) reimburse the claim fund or the chief executive.10 The application to QCAT must include a number of documents: (a) a copy of the information notice; (b) a copy of the letter of demand; and (c) a statutory declaration by the chief executive stating the amount paid from the fund in settlement of the claim, and the amount of any payment received from the respondent in satisfaction of the claim.11 [10] The chief executive must give a copy of the application and accompanying documents to the respondent and advise the respondent as follows: (a) that QCAT will make a reimbursement order if satisfied that: (i) the letter of demand was sent to the respondent; (ii) the respondent has not paid the stated amount within the time allowed under the letter of demand; and (iii) the following matters apply: A. that under the chief executive’s decision the respondent is liable to reimburse the fund in a stated amount; 6 Ibid, s 102. 7 Ibid, s 103(1). 8 Ibid, s 112(1). 9 Ibid, s 116. 10 Ibid, s 117(1) – (3). 11 Ibid, s 117(4). -- 3 of 7 -- 4 B. that an information notice was given to the respondent; C. that either the respondent did not apply to QCAT to have the decision reviewed or the decision was reviewed by QCAT and it was decided by QCAT that the respondent is liable to reimburse an amount to the chief executive or the claim fund; and (b) that the respondent may make written submissions for QCAT’s consideration.12 [11] QCAT must consider an application for a reimbursement order and any written submissions made by the respondent for the application.13 [12] QCAT must make a reimbursement order if satisfied that: (a) the respondent has not paid the stated amount within the time allowed under the letter of demand; and (b) if the application relates to the reimbursement of a claim against the fund: (i) the chief executive has made a decision about a claim against the fund; and (ii) under section 116 of the AFA Act, the respondent is liable to reimburse the fund in a stated amount; and (iii) either— A. the respondent did not apply to QCAT under section 103 of the AFA Act to have the decision reviewed; or B. the decision has been reviewed by QCAT, and under QCAT’s decision, the respondent is liable to reimburse an amount to the chief executive or the fund; and (iv) written notice of the chief executive’s decision, a copy of the decision and an information notice under section 102 was given to the respondent.14 Consideration [13] In arriving at a decision, I have taken account of the matters set out below. In the absence of any challenge to the facts asserted in the Application, or to the material provided with the Application, I accept the factual assertions made by or on behalf of the Applicant and the veracity of the documents provided with the Application. The Applicant’s right to apply to QCAT: section 117 of the AFA Act [14] I turn first to consider the Applicant’s right to apply to QCAT under section 117(3) of the AFA Act. The Information Notice dated 14 October 2016 which was provided 13 Ibid, s 119(1). 14 Ibid, s 119(2) and (3). -- 4 of 7 -- 5 with the Application15 (‘Information Notice’) verifies that the chief executive decided to allow the claim made by the purchaser against the claim fund. [15] The next requirement is that the Respondent had at the time of the Application not reimbursed the claim fund as required under a letter of demand. The Applicant has provided a ‘letter of demand’ dated 19 November 201816 (‘the Letter of Demand’). This was expressed to be sent by Susan Monfries, on behalf of the chief executive, and was sent to the Respondent by email on 19 November 2018.17 The letter stated: ‘I advise the Claimant has now been paid from the Claim Fund, and pursuant to Part 8 of the [AFA Act], the Chief Executive of the Department is authorised to pursue recovery of monies paid from the Claim Fund. Therefore, on behalf of the Chief Executive, I hereby make demand on you for the amount of $4,050.00. Please forward to this office a cheque in the amount of $4,050.00 made payable to the ‘Office of Fair Trading’, with the enclosed repayment slip, within 28 days of the date of receipt of this letter…’ [16] I consider that the letter meets the requirements of and amounted to a letter of demand within the meaning of section 116 of the AFA Act. [17] A statutory declaration made by Nicholas Pirie, Acting Manager for the Claims and Recoveries Branch within the Office of Fair Trading, on 28 November 201818 (‘the Statutory Declaration’), establishes that the Respondent had not reimbursed the claim fund. [18] I therefore find that the Applicant was entitled to apply to QCAT under section 117 for an order that the Respondent reimburse the claim fund. Conformance of the Application to procedural requirements: section 117(4) of the AFA Act [19] I turn next to a consideration of the documents required to accompany the Application, as prescribed by section 117(4). [20] I consider that the Information Notice met the requirements of section 102 of the AFA Act, that it was given to the Respondent as allowed by section 39 of the Acts Interpretation Act 1954 (Qld), namely, by sending the relevant documents by post to the last known address of the Respondent,19 and that it was provided with the Application. [21] As discussed above, I consider the Letter of Demand amounted to a letter of demand contemplated by section 116(6) of the AFA Act, and that the Letter of Demand was provided with the Application. [22] The letter of demand must also have been ‘given’ under section 116(6). The Applicant’s Statement of Claim at [6] and [7] are to the effect that the Letter of Demand was sent by email at the request of the Respondent on 20 November 2018 following a telephone conversation between the Respondent and the Applicant’s representative on 20 November 2018. This date appears to be incorrect. A copy of an 15 OFT-1 to the Statement of Claim. 16 OFT-2 to the Statement of Claim. 17 OFT-2 to the Statement of Claim. 18 OFT-5 to the Statement of Claim. 19 Statement of Claim, [3]. -- 5 of 7 -- 6 email, sent from the Office of Fair Trading’s Ms Susan Monfries on 19 November 2018 to the Respondent, referring to the telephone conversation and attaching the Letter of Demand, is provided at OFT-2 of the documents attached to the Statement of Claim. I therefore consider the references to 20 November 2018 to be erroneous and that the correct date of the email and the telephone conversation was 19 November 2018. [23] Putting the errors to one side, I consider that the assertions in the Statement of Claim at [6] and [7], together with the 19 November 2018 email, satisfactorily establish20 that the Respondent consented to the letter of demand being given by email. I also consider the evidence shows that that at the time the letter of demand was sent it was reasonable to expect the information would be readily accessible so as to be useable for subsequent reference. I therefore consider that the giving of the Letter of Demand by email was permitted under section 11 of the Electronic Transactions (Queensland) Act 2001 (Qld). [24] As to the need for a statutory declaration under section 117(4), I consider the Statutory Declaration satisfied the requirements of section 117(4)(c) and was provided with the Application. [25] Accordingly, I find that the Applicant satisfied, respectively, the requirements of sections 117(4)(a) to (c) of the AFA Act. Service requirement and advice requirements: section 118 of the AFA Act [26] As to the service and advice requirements in section 118 of the AFA Act, in an affidavit affirmed on 19 December 2019, Mr Brett Gough, acting Senior Recoveries Officer within the Office of Fair Trading, deposed to serving a copy of the Application on the Respondent, together with a copy of a letter dated 5 December 2019 (Exhibit 1 to the Affidavit). That letter meets the advice requirements of subsections 118(1)(b) and (c) of the AFA Act. [27] Accordingly, I consider the requirements of section 118 of the AFA Act to be satisfied. Substantive requirements: section 119 of the AFA Act [28] The various prerequisites having been satisfied, the Tribunal is required to consider this Application under section 119(1) of the AFA Act. No submissions have been made by the Respondent. I address the various substantive preconditions which compel a reimbursement order below, taking the matters required by subsections 119(2)(b) and (3) first, as they occur first in time, and the matters in section 119(2)(a) second. [29] The chief executive has made a decision about a claim against the fund. That decision is recorded in the Information Notice. [30] I consider that under section 116 of the AFA, the Respondent is liable to reimburse the claim fund, to the extent of the amount paid from the fund, being the amount of $4,050.00, given that, as is required by section 116: 20 The Tribunal is not bound by the rules of evidence: section 28(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 6 of 7 -- 7 (a) the Respondent was named in the chief executive’s decision, as recorded in the Information Notice, as being liable for a claimant’s financial loss; and (b) the amount of $4,050.00 was paid from the fund in settlement of the purchaser’s claim – this is evidenced by the Statutory Declaration and the Applicant’s Statement of Claim (at [4]) which indicates that the amount was paid pursuant to section 112 of the AFA. [31] That the Respondent failed to apply to QCAT to have the chief executive’s decision reviewed is evident from the statement at [4] of the Applicant’s Statement of Claim. [32] I also consider there to be sufficient evidence that the Respondent was, within the meaning of section 119(3)(d) of the AFA Act, given written notice of the chief executive’s decision, a copy of the decision and an information notice under section 102 of the AFA Act.21 The evidence adduced by the Applicant is that the Respondent was sent a letter dated 14 October 2016 from a delegate of the chief executive, Robert Ford styled ‘Notice of Chief Executive’s Decision’, enclosing the Information Notice, which sets out the chief executive’s decision and reasons.22 Although the Respondent was not provided with a separate document setting out the chief executive’s decision, I consider that a ‘copy’ of the decision was provided in the Information Notice. Alternatively, both the Letter of Demand and the email from Ms Monfries dated 19 November 2019 (OFT-2) indicate that a copy of the chief executive’s decision was given to the Respondent. [33] Turning to the matters in section 119(2)(a), the Statutory Declaration evidences that the Respondent had not paid the amount stated in the letter of demand (which is what I consider to be meant by ‘the stated amount’ in section 119(2)(a)) within the 28 day period allowed under the letter of demand. [34] In light of the matters set out above, I am required to make a reimbursement order. Although there is material provided in the Application which indicates the Respondent wished to rely on his bankruptcy as a defence to the claim,23 this is not a matter to which I may have regard. [35] ‘Reimbursement order’ is not defined in the AFA Act but it is clear from section 117(3) of the AFA Act that it refers to an order that a respondent reimburse the claim fund to the extent it is liable to do so as a ‘responsible person’ under section 116 of the AFA Act. [36] Under section 119(4) of the AFA, if QCAT makes a reimbursement order, the order must state that the Respondent is liable to pay to the chief executive a stated amount within a stated period. Order [37] For the reasons set out above, it is ordered that the Respondent is liable to pay to the Applicant the amount of $4,050.00 within 21 days of the date of this order. 21 Statement of Claim, [4]. 22 OFT-1 to the Statement of Claim and [3] of the Statement of Claim. 23 See OFT-3 of the Applicant’s documents and [8]-[10] of the Statement of Claim. -- 7 of 7 --