Finlay v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2007] QDC 8

DISTRICT COURT OF QUEENSLAND CITATION: Finlay v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2007] QDC 008 PARTIES: BRIAN JOHN FINLAY Applicant V CHIEF EXECUTIVE, DEPARTMENT OF TOURISM, FAIR TRADING AND WINE INDUSTRY DEVELOPMENT Respondent FILE NO/S: 222/07 DIVISION: Civil PROCEEDING: Application for leave to appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 9 February 2007 DELIVERED AT: Brisbane HEARING DATE: 6 February 2007 JUDGE: Kingham DCJ ORDER: The application for leave to appeal against the decision of the Tribunal of 18 May 2006 and the judgment of the Magistrates Court of 25 August 2006 is dismissed. CATCHWORDS: APPEAL – Application for leave to appeal - where the applicant aggrieved by decision of Commercial and Consumer Appeal Tribunal – s100 Commercial and Consumer Tribunal Act 2003 - complaints about findings of fact – no error of law – where applicant aggrieved by judgment of Magistrates Court – interpretation of s93 CCT Act – no important principle of law or justice. Commercial and Consumer Tribunal Act 2003 Magistrates Courts Act 1921 Property Agents and Motor Dealers Act 2000 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 – applied London & Anor v Reynolds [2006] QDC 380 – cited COUNSEL: Mr De Jersey for the Respondent Mr Finlay, self-represented SOLICITORS: Crown Law for the Respondent -- 1 of 4 -- 2 [1] Mr Finlay, a registered real estate salesperson, is aggrieved by two decisions relating to disciplinary proceedings brought against him and others by the Chief Executive of the Department of Tourism, Fair Trading and Wine Industry Development. He seeks this court’s leave to appeal both decisions. [2] The first in time is a decision of the Commercial and Consumer Tribunal to fine Mr Finlay for obtaining a beneficial interest in a property that had been placed by a client for sale with an agency that employed him (an offence against s145(3) of the Property Agents and Motor Dealers Act 2000). [3] The second in time is a decision of the Magistrates Court that the Tribunal’s decision was regularly entered as a judgment of that court. Upon registration the Tribunal’s decision may be enforced as if it were a judgment of the Magistrates Court (s93 Commercial and Consumer Tribunal Act 2003 (CCT Act)). [4] While there are two Notices of Appeal on this file, they are in identical terms, except for the heading to one which identifies that the Notice of Appeal is subject to leave. The hearing proceeded on the basis that both notices related to the one matter and, were leave not granted to appeal either decision, both Notices would have been determined. [5] The Chief Executive opposed the application on the basis that Mr Finlay had not satisfied the requirements for leave to be granted to appeal either the Tribunal decision or the Magistrates Court judgment. The Tribunal’s decision [6] Mr Finlay may appeal the Tribunal’s decision to the District Court with the court’s leave and only on the ground of either an error of law or excess or want of jurisdiction (s100(1) CCT Act). No issue was raised as to excess or want of jurisdiction. [7] At the hearing Mr Finlay identified the following matters as errors of law upon which he relied: 1. The Tribunal Member’s finding that Mr Finlay had acquired a beneficial interest in the subject property; 2. The failure by the Tribunal Member to make a finding that the corporation, also subject to the disciplinary proceedings, was unlicensed. 3. The Tribunal Member’s finding that Mr Finlay was an employee of that corporation. In his Notice of Appeal, the grounds are drawn more narrowly and Mr Finlay referred only to the findings relating to his employment and to his acquisition of a beneficial interest. [8] Counsel for the Chief Executive noted that, in the Notice of Appeal, Mr Finlay sought a hearing de novo and that his complaints relate to findings of fact. Mr Finlay did not identify any grounds upon which they could be characterised as errors of law. In relation to the findings that were made, Mr Finlay did not assert there was no evidence upon which they could have been made or that they were not open on the evidence before the Tribunal. -- 2 of 4 -- 3 [9] In relation to the finding that he says was not made, that the other respondents were not licensed, he did not assert that there was evidence before the Tribunal upon which such a finding should have been made. The Tribunal Member’s reasons disclose that was not in issue before him. Further, although there may be some relevance to the orders against the other respondents, Mr Finlay did not explain the relevance of the license to the orders made against him. [10] Even if Mr Finlay were able to persuade me, which he did not, that the Tribunal Member made wrong findings of fact, that in itself is not an error of law (Australian Broadcasting Tribunal v Bond per Mason CJ and Brennan J at 355-6). All Mr Finlay asserts is the Tribunal Member was wrong. The Member stated that Mr Finlay vigorously contested the allegation that he was an employee of the corporation. The Member carefully set out the evidence before him and his conclusions. The Member’s decision demonstrates the basis upon which his findings were made. There was ample evidence to support them. Mr Finlay has not demonstrated any error of law. The Magistrate’s Court judgment [11] Because the judgment of the Magistrate’s Court involves an amount less than $5,000, Mr Finlay may only appeal to the District Court with the court’s leave. The Court must not grant leave unless satisfied that there is some important principle of law or justice involved (s45(2) Magistrates Courts Act 1921). [12] In his Notice of Appeal, Mr Finlay drew his grounds more broadly. However, at the hearing he identified the important principle of law or justice as compliance with s92 of the CCT Act. The non-compliance he alleged was that the Tribunal’s decision had not been served upon the other respondents to the proceedings before it was registered with the Magistrates Court. This was the issue before the Magistrate upon Mr Finlay’s application to set aside the judgment entered by a Registrar of the Court. I take his submission to be that the Magistrate erred in his interpretation of the effect of s92 and that this is an important principle of law or justice. Counsel for the Chief Executive submitted the Magistrate did not err and there is no important principle of law involved. [13] In essence, Mr Finlay asserted that the effect of s92, s93 and s100 of the CCT Act is that: 1. He is unable to appeal the Tribunal’s decision until it is validly registered because, until then, the decision has no effect for any purpose; and 2. Each respondent to a decision of the Tribunal must be served before the decision can be registered with the Magistrate’s Court; and [14] Mr Finlay relied upon a decision of McGill DCJ in London & Anor v Reynolds. The relevant point at issue in that case was whether an appeal from a Tribunal decision was out of time. The learned judge did not consider the requirements for registration of a Tribunal decision as a judgment of the Magistrates Court. His decision is not authority for the propositions asserted by Mr Finlay. [15] In relation to Mr Finlay’s ability to appeal, s100(4) provides that an appeal must be filed within 28 days after the decision takes effect. Section 92 provides that the decision takes effect immediately, if all parties are present when the decision is -- 3 of 4 -- 4 given, or when all parties have been served. Mr De Jersey informed me these are the only provisions of the CCT Act in which the phrase “takes effect” is used. I have found no other. [16] In interpreting s100, His Honour made reference to s92 and decided that, where all parties were not present when the Tribunal decision was given, the appeal period did not expire until 28 days after service had been effected on all. However, he did not decide that a party cannot commence an appeal until after all parties had been served. I accept Mr De Jersey’s submission that this would be an absurd result, for a party would not know when the time for appeal had commenced. There are, apparently, no means for a respondent to find this out, unless informed by the applicant, who has no obligation to so advise. The Chief Executive did not argue Mr Finlay’s appeal against the Tribunal decision had not been properly commenced. There is no important principle of law or justice raised by Mr Finlay’s submission on that point. [17] As to whether the Tribunal’s decision could be registered before all parties had been served, Mr Finlay extrapolated from His Honour’s reasons in London & Anor v Reynolds that a Tribunal order has no force or effect for any purpose until it has been served on all parties. That case is not authority for that proposition. Nor did the case deal with the registration of a Tribunal decision pursuant to s93, the point before the Magistrates Court and raised by this appeal. [18] Section 93 provides for registration and enforcement of a decision against a party. It makes no reference to s92 and, importantly, does not require the Tribunal decision to “take effect” before it can be registered. [19] Certainly, one of the requirements for registration is an affidavit of service on the party against whom the decision was given. Before the learned Magistrate, Mr Finlay argued the affidavit of service had to relate to all parties against whom the decision was given. I do not think that is a proper interpretation of the section and, in my view, the learned Magistrate was right to reject it. [20] The purpose of the provision is to provide the mechanism for enforcement of Tribunal decisions. It would be a surprising result if a decision could not be enforced against a party who was aware of the decision because other parties were not. The objective of requiring an affidavit of service is obvious; to ensure a decision cannot be enforced against a party who is not aware of it. Mr Finlay was aware of it, he was present when the decision was made. There is no important principle of law or justice raised by his appeal. Order [21] The application for leave to appeal the decision of the Tribunal on 18 May 2006 and the judgment of the Magistrates Court on 25 August 2006 is dismissed. [22] The Chief Executive has requested his costs of the application. I will hear from his counsel and Mr Finlay on this matter. -- 4 of 4 --