Department of Employment, Economic Development & Innovation v Moore (No 2) [2011] QCAT 691

CITATION: Department of Employment, Economic Development & Innovation v Moore (No 2) [2011] QCAT 691 PARTIES: Department of Employment, Economic Development & Innovation v Alexander Terence Moore APPLICATION NUMBER: OCR046-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Susan Gardiner, Member DELIVERED ON: 1 November 2011 DELIVERED AT: Brisbane ORDERS MADE: The application to correct a mistake under section 135(2) of the Queensland Civil and Administrative Tribunal Act 2009 is dismissed. CATCHWORDS: CORRECT A MISTAKE – award of penalty against real estate agent – where agent lodged false declaration – where submissions not received in time NATURAL JUSTICE – Where respondent had not filed submissions by due date of 14 September 2011 – where respondent still wished to file submissions – where parties sought consent orders to extend time in correspondence to Registry on 28 September 2011 – where respondent’s submissions sent to Registry on 3 October 2011 – where application heard by Member 5 October without knowledge of consent order application or of submissions of respondent – where respondent alleged denied natural justice Queensland Civil and Administrative -- 1 of 4 -- 2 Tribunal Act 2009, ss 136-140 Property Agents and Motor Dealers Act 2000, s 10 Acts interpretation Act 1954, s 14A Project Blue Sky Inc v ABA (1998) 194 CLR 355 at 384 followed APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Moore was a licensed real estate agent until 21 November 2010 operating in Noosa, Queensland. [2] In November 2009, Mr Moore renewed his personal licence and company real estate licence listing his home address in Noosaville. Later investigations showed that Mr Moore resided in India, visiting Queensland every few months. [3] The Chief Executive of Department of Employment, Economic Development & Innovation brought an application to QCAT alleging that Mr Moore had breached s 496(1)(g) of the Property Agents and Motor Dealers Act 2000 by failing to notify the Chief Executive of his change in circumstances; of failing to be in charge of a real estate agent’s business at a place and by providing false or misleading documents. [4] Directions in the matter were set by order of the Tribunal on 3 August 2011 requiring Mr Moore to provide his submissions by 14 September 2011 and that the matter be dealt with by the Tribunal on the basis of documents filed (“on the papers”) not before 28 September 2001. [5] No documents were filed by Mr Moore in accordance with the directions made by the Tribunal. [6] On 5 October, this application was dealt with by a member of QCAT on the basis of documents filed in the Tribunal and an order bearing this date and written reasons for the decision were sent by post to the parties on 12 October 2011. [7] Meanwhile, the parties had entered negotiations to allow Mr Moore an extension of time in which to file his response. They prepared a consent order application allowing Mr Moore until 17 October 2011 to file his submissions with a request that the Tribunal not deal with the matter until after 17 October 2011. This consent application was emailed to the relevant registry officer by the legal representative for the Department on 28 September 2011. The case officer was working out of the registry at the time and was not aware of the email until after the member had dealt with the matter on the documents then filed on 5 October 2011. -- 2 of 4 -- 3 [8] The parties now apply seeking the Tribunal to correct a mistake under section 135(2) of the Queensland Civil and Administrative Tribunal Act 2009. I am at a loss to understand the mistake this Tribunal has been alleged to have made. The Department says it is an error of omission by not taking into account the submissions of the respondent. I do not accept this submission. The Department admits in the application that “QCAT was not aware of the submissions due to the method of filing by the Applicant and the Respondent, that is filing by email to the QCAT case manager nor it appears of the Application for orders by consent regarding further directions for the filing of submissions emailed to the QCAT case manager”. [9] Parties have no way of knowing when, after the closing of directed filing dates, a matter will be dealt with by the Tribunal where the hearing is to occur on the papers. Here the risk was taken by the parties, by not ensuring that the application was brought to the attention of a registry officer by direct personal communication that the hearing had not occurred. This was misguided. Simply trusting the emailing of the application to be sufficient in circumstances where the directions timetable had been completed was, in my view, unreasonable and cannot be viewed as a mistake by the Tribunal in the terms of section 135 of the QCAT Act. [10] An application may have been made by the parties to reopen the hearing under s 138 of the QCAT Act. For this application to succeed, the applicants must state the reopening ground on which the application is made1. Again however, I have difficulty accepting that the circumstances of this matter fall within either of the reopening grounds that are defined in s 137(a) or (b) and that a reopening would have been reasonable in the circumstances or that new evidence had arisen that was not reasonably available when the proceeding was first heard and determined. For this reason it is probable that this application was made on the basis of section 135 not 138 of the QCAT Act. [11] If Mr Moore had complied with the original timetable for the filing of his submissions or taken positive steps to ensure that, after the close of submissions, the Tribunal was aware that an application for an extension of time had been sent to the Tribunal for consideration, there would have been no need for any further application. [12] However, in an effort to assist Mr Moore, I have now considered afresh the Chief Executive’s application and all of the submissions from both parties that have been filed in this matter – the Chief Executive’s original submissions filed 18 August 2011, Mr Moore’s submissions emailed 3 October 2011 and the Chief Executive’s submissions in reply filed 17 October 2011. [13] Mr Moore argues that the “key to the whole case of the OFT is the wording of the relevant sections of the Act (132 and 14)”. He says the Act does not make it clear that the licensee must be physically present at the licensed 1 Queensland Civil and Administrative Tribunal Act 2009, s 138(2)(a). -- 3 of 4 -- 4 premises and that if the wording of the Act is vague, it should be construed against the Chief Executive, not Mr Moore. [14] In reply to this submission, the Chief Executives submits that the approach to the statutory interpretation that this Tribunal should adopt in this matter is to construe the relevant provision consistent with the language and purpose of all of the provisions of the statute2. The Chief Executive opines that the main object stated in the Act3 refers to providing a system of licensing and regulation that achieved an appropriate balance between freedom of enterprise and consumer protection and that these objects are achieved in a number of ways. The Chief Executive says that the Act requires that persons who carry on business or are in charge of a licensee’s business maintain a close personal supervision (my emphasis added) of the way the business is carried out4. [15] Mr Moore’s argument is that this requirement to maintain close personal supervision can be carried out by a licensee from another country – here India. [16] Even with today’s available technology, I am not persuaded by this argument. The use of the descriptor “close” in the legislation signifies an intention by the legislators for there to be a very “hands on” and direct relationship between anyone in charge and those employed. I accept that this is a necessary requirement of the consumer protection aspect of this Act. [17] I am not satisfied that Mr Moore could ever satisfy this requirement living in another country. [18] I am satisfied that taking into account the submissions of Mr Moore and the Chief Executive that if I have considered the matter based on the submissions latter received, I would not have made a decision different from the decision of the original learned member. [19] The application to correct a mistake under section 135(2) of the Queensland Civil and Administrative Tribunal Act 2009 is dismissed. 2 Acts Interpretation Act 1954, s 14A; Project Blue Sky Inc v ABA (1998) 194 CLR 355 at 384. 3 Property Agents and Motor Dealers Act 2000, s 10. 4 Property Agents and Motor Dealers Act 2000, s 10(3)(a)(ii). -- 4 of 4 --