Chief Executive of the Department of Justice and Attorney-General v Kollosche & Anor [2015] QCAT 145

CITATION: Chief Executive of the Department of Justice and Attorney-General v Kollosche & Anor [2015] QCAT 145 PARTIES: Chief Executive of the Department of Justice and Attorney-General (Applicant) v Michael William Kollosche Kollosche Enterprises Pty Ltd (Respondents) APPLICATION NUMBER: OCR299-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 29 April 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for a stay of the proceedings is dismissed. 2. I direct that the application be set for a Directions Hearing on a date as soon as convenient (to be advised) for the purposes of assessing the readiness of the matter for a hearing, the making of any appropriate or required direction to progress the matter towards hearing, and the setting of a hearing date if appropriate. CATCHWORDS: APPLICATION FOR STAY – DISCIPLINARY MATTER – REAL ESTATE AGENT – where disciplinary proceedings were brought against a real estate agent in the Tribunal, and the real estate agent was involved in Supreme Court civil proceedings in relation to the same property and involving some of the same witnesses – whether it was appropriate to order a stay – where there is a public interest in disciplinary proceedings – whether the possible disadvantage to be suffered -- 1 of 9 -- 2 by the real estate agent in conducting simultaneous proceedings is outweighed by the public interest and the interests of justice Property Agents and Motor Dealers Act 2000 (Qld) Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Sali v SPC Ltd [1993] HCA 47 Re Seidler [1986] 1 Qd R 486 Peterson Valuation Services v Valuers Registration Board of Queensland [2015] QCATA 12 Briginshaw v Briginshaw (1938) 60 CLR 336 Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 104 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REPRESENTATIVES: APPLICANT: Mr J M Horton QC of Counsel instructed by the Chief Executive RESPONDENTS: Mr Tom Pincus of Counsel instructed by Small Myers Hughes REASONS FOR DECISION [1] Mr Michael William Kollosche is a real estate agent. He is a Director of Kollosche Enterprises Pty Ltd. [2] The Chief Executive of the Department of Justice and Attorney-General (the Chief Executive) filed an application or referral for a disciplinary proceeding in the Tribunal on 2 December 2013, against Mr Kollosche and Kollosche Enterprises Pty Ltd. [3] The statutory grounds for taking disciplinary action were s 496(1)(b)(i) of the Property Agents and Motor Dealers Act 2000 (Qld) (the Act) for breach by Mr Kollosche and Kollosche Enterprises Pty Ltd of the Property Agents and -- 2 of 9 -- 3 Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld). [4] The proceeding has come before the Tribunal on numerous occasions at Direction Hearings when directions have been given for the filing of material and for the conduct of the proceedings.1 [5] An Application for a Stay of the Proceedings was filed by Mr Kollosche and Kollosche Enterprises Pty Ltd on 28 November 2014, in response to directions which I gave on 19 September 2014. [6] The Chief Executive filed material in response to the stay application on 24 December 2014, in response to directions which I made on 19 September 2014. [7] I directed on 5 February 2015 that the stay application would be determined by a Member of the Tribunal on the papers not before 10 March 2015. [8] Mr Kollosche and Kollosche Enterprises Pty Ltd filed further submissions in relation to the stay application on 2 March 2015, in response to directions I gave on 5 February 2015. [9] The Chief Executive filed submissions in reply to the further submissions of Mr Kollosche and Kollosche Enterprises Pty Ltd on 5 March 2015, in response to the directions I gave on 5 February 2015. [10] Mr Kollosche and Kollosche Enterprises Pty Ltd seek a stay of these proceedings in the Tribunal until the resolution of a current civil proceeding in the Supreme Court of Queensland. The Chief Executive opposes the granting of a stay. [11] This is the determination on the papers of the stay application. Submissions in support of a Stay [12] Mr Kollosche and Kollosche Enterprises Pty Ltd annexed reasons for seeking a stay to their application filed on 28 November 2014. Those reasons are clearly expressed, and I set them out in full: 1. Although the Supreme Court proceedings in respect of Mr and Mrs Lambert (being two of the complainants in this proceeding) have now settled on a commercial and without admission basis, the Supreme Court proceeding commenced by Mr Platt, Mrs Platt and Mr Nash (further complainants in this proceeding) are ongoing (“Platt proceeding”). 1 12 December 2013 before Member Paratz; 26 February 2014 before Member Paratz; 2 April 2014 before Member Paratz; 15 April 2014 before Senior Member Oliver; 16 May 2014 before Member Paratz; 27 August 2014 before Member Paratz; 19 September 2014 before Member Paratz; 16 January 2015 before Member Paratz; 5 February 2015 before Member Paratz. -- 3 of 9 -- 4 2. The Platt proceeding concerns (inter alia) the same allegations that are raised by the applicant in this proceeding. 3. The continued prosecution of this proceeding would be unfair and oppressive while the Platt proceeding is ongoing. The Platt proceeding, in which the respondents are also defendants, is a substantial and complex multi-party proceeding which is well advanced in the Supreme Court and was recently placed on the Commercial list. 4. It is anticipated that a number of the major witnesses in this QCAT proceeding will also be required to give evidence on the same topics in the Platt proceeding. In the Platts’ draft trial plan provided on 14 January 2014 (copy annexed and marked “A”), the following witnesses are listed as witnesses for the Platts, each of which will also certainly be required to give evidence in this proceeding: a) Daryl Platt b) Kylie Platt c) Peter Graham d) Rod Lambert 5. From the respondent’s point of view, any witnesses who are called by the respondents to give evidence in the Platt proceeding will also be required to give evidence in this proceeding. 6. The continuation of both sets of proceedings at the same time would create a real risk of inconsistent verdicts, which would be prone to bring the administration of justice into disrepute. Also it would involve real inefficiency in requiring the expenditure of substantial time and costs which, if the Platt proceeding were left to be resolved first, would likely to be avoided or reduced because of a clarification of the issues by that proceeding. 7. In all these circumstances, this QCAT proceeding should be held in abeyance pending the resolution of the Platt proceeding in the Queensland Supreme Court. 8. The applicant does not (and in our view, appropriately) seek any order of suspension or disqualification against the respondents. 9. The applicant took well over three years to commence these proceedings. It is difficult to see, particularly in light of the long period since the applicant’s investigation commenced and tis slow progress to date, that there could be any urgency in the conclusion of this proceeding. Further, the fact that the Platt proceeding is now being managed on the Commercial List justifies an inference that it is likely to proceed without delay to resolution. [13] Further submissions were filed on behalf of Mr Kollosche and Kollosche Enterprises Pty Ltd on 2 March 2015. The submissions quoted above were maintained. [14] The further submissions advised that the Platt proceeding remains on foot on the Commercial List, and that Justice Jackson made orders on 27 February 2015 striking out substantial parts of the plaintiff’s second amended statement of claim, permitting repleading of some of those parts, and requiring further pleading compliant with the Uniform Civil Procedure -- 4 of 9 -- 5 Rules 1999 (Qld) as to the basis for allegations of knowledge against the respondents to this proceeding. They advise that the timetable set by His Honour contemplates the pleadings being finalised by the end of April. [15] They submit that: Although there is no suggestion made of any improper purpose in the applicant bringing and pursuing this proceeding, the fact of its pursuit has real potential to cause unfairness and injustice to the respondents in defending the claim for some $4.8 million in damages in the Platt proceeding and defending this proceeding at the same time.2 [16] They submit that a consequence of this matter proceeding would be that ‘this proceeding will be akin to a first run of many of the issues for the Supreme Court trial in the Platt proceeding’.3 The Chief Executive’s Submissions [17] The Chief Executive opposes the Application for a Stay. It submits that the fact that Mr Kollosche is facing two sets of proceedings does not mean that he is being unfairly burdened, and that the mere existence of more than one proceeding is not, in itself, an abuse of process.4 [18] The Chief Executive submits that there is not a real risk of inconsistent verdicts in the respective actions, as the Supreme Court proceeding involves the determination of civil liability, whereas this proceeding involves the determination of disciplinary issues arising under statute. [19] It addresses the conduct of the Supreme Court proceedings in its further submissions filed on 5 March 2015, and submit that nothing about the orders of Justice Jackson made on 27 February 2015 suggests that the proceeding will now be determined more quickly than would ordinarily be the case. It submits that there is no evidence that the proceedings in the Supreme Court will progress expeditiously to a determination by the Court, and that no cogent basis is given for the assumption that that will occur. [20] It also submits that there is a public interest in the relatively expeditious disposition of this proceeding, and that to postpone it indefinitely pending the outcome of the Supreme Court litigation is in effect to put it off indefinitely, and that such a result ought be avoided. Should a Stay be granted? [21] The Tribunal has power under s 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to make an interim order it considers appropriate in the interests of justice. This includes an order to protect a party’s position for the duration of the proceeding.5 (A note to that 2 Submissions Mr Kollosche and Kollosche Enterprises Pty Ltd filed 2 March 2015 at [9]. 3 Ibid at [12]. 4 Submissions Chief Executive filed 24 December 2014 at [2], cf Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 427. 5 QCAT Act s 58(1)(a). -- 5 of 9 -- 6 section refers to the Tribunal’s power in s 22(3) to stay the operation of a reviewable decision whilst it is being reviewed by the Tribunal). [22] There is no issue as to whether the Tribunal has power to order a stay of proceedings before it. It is implicit in the submissions from all parties that the Tribunal is accepted to have such power. [23] A stay involves imposing a delay in the conduct of the proceedings. In so doing the Tribunal is to have regard not only to the positions of the parties, and any prejudice that may be caused to them by the granting or refusal of a stay; but also to the public interest in the disposition of proceedings generally and as to the specific proceeding. [24] The High Court in Aon Risk Services Australia Ltd v Australian National University6 referred to Sali v SPC Ltd7 which was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. French CJ noted that the Court in that case, by majority, held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’ and that Brennan, Deane and McHugh JJ went on to say: What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. [25] French CJ noted that:8 Both the primary Judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. [26] The Act has as its main object to provide a system for licensing and regulating persons as … real estate agents … that achieves an appropriate balance between the need to regulate for the protection of consumers, and the need to promote freedom of enterprise in the market place.9 The objects are to be achieved by providing that responsibility for disciplinary matters rests with the Tribunal.10 [27] This proceeding is a disciplinary proceeding. There is a public interest in the orderly and prompt conduct of disciplinary proceedings to protect consumers from ongoing unrestrained conduct by improper real estate 6 [2009] HCA 27 at [26]. 7 [1993] HCA 47. 8 Aon at [5]. 9 PAMDA s 10(1). 10 PAMDA s 10(3)(v). -- 6 of 9 -- 7 agents, to reinforce the standards that are expected, and to maintain public confidence in the system of regulation and discipline.11 [28] The course of conduct of the Supreme Court proceedings is unknown. That proceeding is in the Commercial List and is being case managed, which suggests that it will be taken to resolution as soon as appropriate. It is obvious however that those proceedings are highly technical, as evidenced by the already extensive objections and amendments to pleadings, and is being strongly contested, which is consistent with the significant amount of money being claimed. [29] No specific time estimate has been made by any party as to when the Supreme Court proceedings might come to hearing, and as to when a decision might be delivered. There might be a significant time period to yet elapse before finality is achieved in those proceedings at first instance. There is then the possibility of an Appeal being lodged, with consequent further time periods. [30] Whilst the proceedings in this Tribunal may involve the same property, and some of the same witnesses as the Supreme Court proceedings, the nature of the proceedings and the test for the standard of proof is quite different. [31] There are nine separate parties in the Supreme Court proceedings. There are three Plaintiffs – Daryl Terrence Platt, Kylie Jane Platt and Andrew Richard Nash. Mr Kollosche and Kollosche Enterprises Pty Ltd are only two of six Defendants.12 The other four Defendants are Galacoast Pty Ltd, Paul Damien Jones, Short Punch & Greatorix (a firm) and Herron Todd White (Gold Coast & NSW Far North Coast) Pty Ltd. [32] The Supreme Court proceedings are a civil claim between private parties to be determined on the civil standard of the balance of probabilities. The proceedings in this Tribunal are disciplinary proceedings, which are governed by a different test of the standard. [33] Carter, J made the following comments in Re Seidler:13 In Australia and in England the appropriate standard of proof in disciplinary actions has been closely examined by the courts and this standard is regularly applied in practice by disciplinary bodies. The standard of proof is proof on the balance of probabilities possessing as that standard does the required measure of flexibility so that the more serious the allegation, the higher the degree of probability that is required. [34] In disciplinary matters the Briginshaw test is often referred to. It can be described as reasonable satisfaction having regard to the nature and consequence of the allegations made. 11 The public interest nature of disciplinary proceedings is noted in Peterson Valuation Services v Valuers Registration Board of Queensland [2015] QCATA 12 at [10] and [14]. 12 Supreme Court of Queensland, Number S2429/13. 13 [1986] 1 Qd R 486 at 490. -- 7 of 9 -- 8 [35] Briginshaw was a decision of the High Court of Australia.14 Dixon J made the following comments as to the test required in a matter that is not a criminal case, but goes beyond a civil case in its ramifications:15 The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists which may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. [36] The proceedings in this Tribunal relate to the conduct of the real estate agent alone, having regard to the standards set by the Act. The civil proceedings in the Supreme Court relate to the dealings between the various parties; the agreements made between them; and the duties of care arising in both common law and statute, owed by and between them. [37] The nature of the separate proceedings are therefore markedly different in scope, law, and the test as to the standard of proof. [38] Whilst a significant period of time did elapse before the commencement of the disciplinary proceedings (between the events in 2006, the liquidation of the company on 23 May 2011, and the filing of this application on 2 December 2013), a significant period of time has also now elapsed since the commencement of these proceedings. It is not in the interests of justice that these proceedings should be further protracted, if they can be properly determined whilst still having regard to considerations of fairness. [39] The possible disadvantage that might arise to Mr Kollosche and Kollosche Enterprises Pty Ltd by having to conduct two sets of proceedings simultaneously in terms of cost and inconvenience, where those proceedings are markedly different in scope and treatment, are outweighed by the public interest in having the disciplinary matters determined in an orderly manner. 14 Briginshaw v Briginshaw (1938) 60 CLR 336. 15 Ibid at p 362. -- 8 of 9 -- 9 [40] I note that in a recent decision16 the Tribunal refused a stay of proceedings in a disciplinary matter: The District Court matter between the QBCC and Mr Jenkins, commenced relatively recently, is a recovery of debt matter. Allowing this to proceed simultaneous with disciplinary matters commenced nearly two years prior may create stress for Mr Jenkins personally, but does not afford any basis for a stay of the disciplinary matters. Conclusion [41] In all the circumstances, I am not satisfied that it is in the public interest, and in the interests of justice, that the disciplinary proceedings in this Tribunal should be stayed pending the determination of the separate Supreme Court civil proceedings between Mr Kollosche and Kollosche Enterprises Pty Ltd and other parties. [42] I dismiss the Application for a Stay. [43] I direct that the application be set for a Directions Hearing on a date as soon as convenient (to be advised) for the purposes of assessing the readiness of the matter for a hearing, the making of any appropriate or required direction to progress the matter towards hearing, and the setting of a hearing date if appropriate. 16 Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 104. -- 9 of 9 --