Chief Executive, Dept of Tourism, Racing & Fair Trading v Feeney & Ors [2002] QDC 215

DISTRICT COURT OF QUEENSLAND CITATION: Chief Executive, Department of Tourism, Racing and Fair Trading v Feeney & Ors [2002] QDC 215 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF TOURISM, RACING AND FAIR TRADING Appellant v TERRENCE JOHN FEENEY AND SALLY ANNE FEENEY First Respondents NATIONAL ASSET PLANNING CORPORATION PTY LTD (IN LIQUIDATION) Second Respondent CHRISTOPHER BILBOROUGH Third Respondent FILE NO/S: Appeal No. 3197 of 2002 DIVISION: PROCEEDING: Application in appeal ORIGINATING COURT: District Court of Queensland DELIVERED ON: 15 August 2002 DELIVERED AT: Brisbane HEARING DATE: 7 August 2002 JUDGE: McGill DJC ORDER: Application dismissed with costs CATCHWORDS: APPEAL AND NEW TRIAL – Appellate Jurisdiction – appeal from Property Agents and Motor Dealers Tribunal – whether Chief Executive has standing to appeal. APPEAL AND NEW TRIAL – Points and Objections not taken below – question of law – whether able to be raised on appeal – whether abuse of process. INFERIOR TRIBUNALS – Property Agents and Motor Dealers Tribunal – Appeal to District Court – whether Chief Executive has standing when not a party before Tribunal – whether grounds of appeal not raised before Tribunal allowed – whether appeal abuse of process. Property Agents and Motor Dealers Act 2000 s 540(1) COUNSEL: R I M Lilley for the appellant R G Bain QC, with him D A Skennar, for the first respondents T Bradley for the third respondent SOLICITORS: Crown Solicitor for the appellant Carter Capner lawyers for the first respondents -- 1 of 14 -- 2 [1] This is an application to strike out an appeal to the District Court from a decision of the Property Agents and Motor Dealers Tribunal (“the Tribunal”). On 27 June 2002 the Tribunal made the following orders: 1. That the Chief Executive of the Department of Tourism, Racing and Fair Trading pay from the claim fund to the applicant the sum of $107,820.00 and the amount of costs to be determined by the certification of a qualified cost assessor. 2. That the first and fifth respondents reimburse the claim fund in the amount of $107,820.00 plus the amount of costs to be determined by the certification of a qualified cost assessor, in accordance with sections 490 and 491 of the Act. By section 540 of the Property Agents and Motor Dealers Act 2000 (“the PAMD Act”) there is an appeal to the District Court from a decision of the Tribunal, but only on a question of law. [2] The Chief Executive by a Notice of Appeal filed on 25 July 2002 has purported to appeal “against those parts of the decision of the [Tribunal of that date] by which the Tribunal ordered:- “1. That the appellant pay to the first respondents from the claim fund defined in the [PAMD] Act (“the Claim Fund”) the sum of $55,981.00 being the income losses referred to in paragraphs 76 and 90 of the decision; 2. That the appellant pay to the first respondents from the claim fund costs assessed on the District Court scale where the amount exceeds $50,000.00 referred to in paragraph 95 to the decision.” [3] The Notice of Appeal names as first respondents the two individuals who were the claimants before the tribunal. Although the PAMD Act refers consistently to such people as “claimants”, they are described in the order and reasons for decision of the Tribunal as “applicant”. The second respondent to the appeal is a company in liquidation which had taken no part in the proceeding before the Tribunal, although it was named as a respondent, and was found by the Tribunal to have been responsible for the claimants’ financial loss. The Tribunal was informed that it is in members voluntary liquidation with no assets and no liabilities. The third respondent to the appeal was a person found by the Tribunal to have been a director of that company at the relevant time, and pursuant to certain provisions of the Auctioneers and Agents’ Act 1971 (“the A&A Act”) to be liable to reimburse the Claim Fund. [4] The first respondents have now applied to have the appeal by the Chief Executive struck out, on the ground that the Chief Executive has no standing to appeal, or in the alternative on the ground that the appeal is an abuse of process by the Chief Executive. I should mention that the third respondent to this appeal has also filed a Notice of Appeal to this court against the decision the subject of the present appeal; on the day on which I heard this application, I dismissed by consent an application by the first respondents for an order that that appeal be struck out. -- 2 of 14 -- 3 [5] It was not argued on behalf of the first respondents that the appeal should be struck out because the appeal purported to be against certain parts of the decision, whereas section 540 allows only an appeal against “the decision”. In my opinion, strictly speaking, the appeal should have been brought against the decision of the Tribunal of 27 June 2002; insofar as the appellant sought to challenge certain parts of the reasoning by which the Tribunal arrived at that decision, that ought to have been made clear in the statement of the grounds of the appeal. If the appellant is saying that the Tribunal erred in determining that there was liability in respect of one of a number of amounts which together produced the sum ordered to be paid from the claim fund, it ought to have appealed against the order that that sum be paid from the claim fund. However, insofar as there are any formal deficiencies in the Notice of Appeal, they can be remedied by amendment. Background [6] According to the reasons for the decision of the Tribunal, on 2 December 1997 the second respondents purchased a unit in Acacia Grove on the Gold Coast for $154,900.00, being persuaded to do so by a Mr Chapman who was the agent of the second respondent. The Tribunal found that the second respondent acted as a real estate agent in relation to the sale of the property to the first respondents, although it was not licensed for this purpose. The Tribunal found that Mr Chapman had made false and misleading representations to the first respondents, that “no finance company would provide finance without a valuation” and that “no bank would lend an amount greater than the property value”, and to the effect that the sale price represented market value for the property. [7] The Tribunal also found that the second respondent failed to provide the first respondents with the statement in writing required by section 53 of the A&A Act, and found that the second respondent failed to advise the first respondents of a beneficial interest in the property purchased, in breach of section 69 of the A&A Act, although it rejected an argument that there had also been a breach of section 70 of that Act. The Tribunal proceeded to assess the financial loss suffered by the first respondents as a result of the breaches of the Act, by identifying what pecuniary losses had a real or substantial causal connection with the fraudulent misrepresentations. [8] The Tribunal accepted that the claimants had suffered a capital loss of $42,400.00, incurred $9,439.00 in incidental costs being the difference between what was paid and what ought to have been paid in fees paid to solicitors, brokers and valuers and fees paid for items such as stamp duty, and $55,981.00 as income losses determined by taking the income received and adjusted expenses claimed since they purchased the properties, adjusted to take account of some taxation benefits for the claimants for each financial year. A claim for interest was withdrawn, and a claim for future disposal costs was rejected by the Tribunal. [9] In his Notice of Appeal the appellant identifies what are said to be the following errors of law on the part of the Tribunal: 1. Quantifying the amount payable from the claim fund by reference to the terminology in section 488 of the PAMD Act rather than by reference to the terminology in section 119(1) of the A&A Act. -- 3 of 14 -- 4 2. Holding that there was nothing in section 119(1) or anything in the intended scope and context of the A&A Act that a person could not recover the whole of the loss sustained by the contravention of sections of that Act. 3. Finding income losses suffered after April/June 1999 were causally connected to any earlier breach, in circumstances where the property might have been sold in April 1999 and where the capital loss was calculated by reference to the value of the property at an earlier time (apparently the time of the sale) rather than the date of the hearing. 4. Concluding that amounts claimed as depreciation for tax purposes were properly regarded as part of the financial loss or pecuniary loss suffered by the first respondent. 5. Deciding the Tribunal had a discretion to order costs in favour of the First Respondents. 6. (If there was such a discretion) awarding costs assessed in accordance with the District Court scale where the amount recovered exceeded $50,000.00. Standing [10] The first point taken by the first respondents is that the Chief Executive has no standing to appeal a decision of this nature. That submission on its face is inconsistent with the terms of section 540 of the PA&MD Act 1 which provides as follows: “(1) The Chief Executive or a party dissatisfied with the decision of the tribunal may appeal to the District Court, but only on a question of law. (2) The party appealing must serve a copy of the appeal and supporting documents on the registrar within 7 days of filing the appeal in the District Court. (3) On hearing the appeal, the Court may make the order for costs it considers appropriate. (4) The District Court registrar must give the registrar of the tribunal a copy of the court’s judgment and reasons.” On the face of it, therefore, the Chief Executive has an express right to appeal. However it was submitted on behalf of the first respondents that it is necessary to interpret the section by reference to the scheme of the Act as a whole, and, properly understood, the section is making provision only for appeals by the Chief Executive in those situations where the Chief Executive was properly involved in a proceeding before the Tribunal. 1 And with the fact that the decision of the Tribunal is expressed as an order that the Chief Executive do something. -- 4 of 14 -- 5 [11] The Tribunal is not concerned only with the determination or adjudication of claims against the Claim Fund. By section 450 of the PAMD Act 2 : “The Tribunal has the following jurisdiction – (a) to hear and decide disciplinary matters involving licensees and registered employees; (b) to hear and decide claims, other than minor claims, against the fund; (c) to review decisions of the Chief Executive in relation to minor claims; (d) to review decisions of the Chief Executive in relation to licensing and registration.” It is immediately apparent that there is a distinction between the process for minor claims and that for other claims. A minor claim is one for not more than $5,000. 3 If a claim made against the fund is a minor claim, the Chief Executive may allow the claim wholly or partly, or reject it (sections 481(1)), whereas any other claim is to be referred directly to the Tribunal for decision: section 476(b). The Claims Fund [12] I should say something more about the statutory provisions in relation to claims. A claim fund was established by section 408, and superseded the Auctioneers and Agents’ Fidelity Guarantee Fund established under the A&A Act. So far as I can see money comes into the fund only from the consolidated fund, or when payments from the fund are reimbursed. The fund is part of the departmental accounts for the department (section 408(4)), and by section 408(3) the Treasurer must transfer amounts to the fund, appropriated from time to time, to meet claims against the fund for any particular financial year. The fund is used to pay the amount of all claims allowed against the fund: section 409(1). [13] A person who suffers financial loss because of a contravention of various provisions of the Act, or a contravention of a certain provision of the Land Sales Act 1984, or because an auctioneer or motor dealer has sold a motor vehicle to a consumer without providing clear title to the vehicle, or because of stealing, misappropriation or misapplication of property entrusted to a licensee or a person associated with a licensee in the person’s capacity as such, may make a claim against the fund: section 470. A claim is initially made to the Chief Executive in the approved form (section 473(1)) and the Chief Executive must give notice of the claim to the person or persons whose actions are alleged (presumably by the claimant) to have given rise to the claim (referred to as “the respondent”): section 474(1). The Act contemplates that the respondent will attempt to settle the claim, but if that does not occur within 28 days after notice was given to him, the claimant may apply to the Chief Executive either to decide the claim if it is a minor claim, or to refer it to the Tribunal for decision: section 476. 2 Since the question is as to the true construction of this Act what matters is the statutory scheme it created, though the relevant events occurred while the A&A Act was in force. 3 PAMD Act schedule 3. -- 5 of 14 -- 6 Minor Claims [14] In the case of a minor claim the Chief Executive invites the parties to provide written comments on the claim, which must also be provided to the other party, and further comments in response, and may seek further information from the parties: section 478. An inspector may be appointed by the Chief Executive to investigate the claim and provide a report to the Chief Executive, who must provide copies to each of the parties: section 477. The Chief Executive decides the claim without a hearing: section 478(6). If the respondent fails to respond to the claim, or cannot be located, the Chief Executive may consider and decide the claim in the absence of any response (section 480). [15] Whether or not there is a response the Chief Executive may allow the claim only if satisfied on the balance of probabilities that one of the events which provides an entitlement to the claim under section 470 has occurred, and that the claimant has suffered financial loss because of the happening of that event: section 481(2). Further, the Chief Executive must take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default, decide the amount of the claimant’s financial loss, and name the person who is liable for the claimant’s financial loss: section 481(3). He must give a written decision setting out relevant findings and reasons (section 481(4)). The significance of the mandatory requirement to make a finding as to the person who is liable for the claimant’s financial loss is that there is a further mandatory requirement that the decision must include a statement that that person is liable to reimburse the fund to the extent of the amount paid to the claimant: section 481(4)(d). If more than one person are in that unfortunate position, their liability is joint and several. [16] It is immediately apparent that the focus of the Chief Executive in deciding on a minor claim is not merely on deciding issues raised by disputing parties. The Chief Executive is deciding an application to him to be paid out of the claim fund, and at the same time deciding whether to make an order that the respondent reimburse the fund. Whether or not a respondent becomes involved, and whatever attitude the respondent may take, there is still a requirement before a claim can be allowed that the Chief Executive be satisfied of certain matters, and take into account whether there has been neglect or default on the part of the claimant. His function is not just to conduct an adversarial process: he has a statutory obligation to consider whether there really has been an event which gives rise to an entitlement to a claim, whether the claimant really has suffered financial loss as a result, and whether any part of the claimant’s financial loss could have been offset but for the claimant’s neglect or default. Even if the respondent put in a submission admitting the justification for the claim, and not raising any issue of neglect or default by the claimant, it would still be necessary for the Chief Executive to consider whether he was satisfied on the balance of probabilities that the claimant was entitled to claim, and still necessary to investigate whether there had been a neglect or default on the part of the claimant, although the attitude of the respondent would certainly be a relevant consideration when arriving at his decision. [17] By section 483 a party who is dissatisfied with the Chief Executive’s decision may apply to the Registrar within 28 days to have the decision reviewed by the Tribunal. Subject to that the Chief Executive’s decision binds the parties: section 484. -- 6 of 14 -- 7 Other Claims [18] In case of claims other than minor claims, which are referred by the Chief Executive to the Tribunal, the legislative provisions assume that there will be a hearing of the claim before the Tribunal, although the procedure is at the discretion of the Tribunal, subject to the Act and the rules of natural justice: section 508(1). The Tribunal is not bound by the rules of evidence; it may inform itself in any way it considers appropriate, and is to conduct its proceedings with as little formality and technicality and with as much speed as the requirements of the Act of proper consideration of the matters before it permit: section 508. By section 518: “the following persons are entitled to appear before the Tribunal at a hearing: (a) a party to the proceeding; (b) the party’s lawyer; (c) the Chief Executive; (d) the Chief Executive’s representative; (e) another person to whom the Tribunal gives leave to appear.” [19] A notice of the hearing is given to both parties, and if the respondent does not appear or cannot be located the Tribunal may hear and decide the matter in the respondent’s absence: section 485, 487. The Tribunal decides the claim, but may allow it only if satisfied on the balance of probabilities of the same matters of which the Chief Executive is required to be satisfied in the case of a minor claim, and still must take into account any amount the claimant might reasonably have received or recovered if not for the claimant’s neglect or default. Any such amount is to be deducted from the amount of the claimant’s financial loss, as is the value of any benefit received from a source other than a fund in reduction of the loss: section 492. That section also permits the regulation to limit the amount which may be paid in response to a single claim, or in respect of a particular individual respondent, and interest is not payable from the fund in relation to a claim. The Tribunal must decide the amount of the claimant’s financial loss, and name the person who is liable for the claimant’s financial loss: section 488. [20] If a claim is allowed by the Chief Executive, or by the Tribunal on review from the Chief Executive, or by the Tribunal directly, the Chief Executive must authorise payment from the fund in the amount decided by the Chief Executive or the Tribunal, as the case may be: section 489. The person named as liable for the claimant’s financial loss is liable to reimburse the fund to the extent of the amount paid to the claimant from the fund, and on payment the Chief Executive must send a letter of demand to such person requiring payment within 28 days: section 490, 491. Other functions of the Tribunal [21] Apart from dealing with claims, the Tribunal is also concerned with hearing and deciding disciplinary matters: section 450(a). A disciplinary matter is one in which one of the range of the matters identified in section 496(1) is alleged against a licensee or a registered employee. A proceeding is started by the Chief Executive filing a notice which is identified by the statute as a complaint, which is then to be given to the person the subject of the proceedings together with notice of the -- 7 of 14 -- 8 hearing. It is apparent from such provision as is made in the Act for disciplinary proceedings that the Chief Executive fulfils the role of a prosecutor in respect of such proceedings. [22] In addition a person who is dissatisfied with the decision of the Chief Executive under a range of provisions identified in schedule 1, mostly concerned with the granting of licences, but including the Chief Executive’s decision on a minor claim, may apply to the Tribunal to have the decision reviewed: section 501. The applicant must give a copy of the application to the Chief Executive (section 502(2)), and, where the application is to review a decision in respect of a minor claim, also to the other party: section 483(3). The Tribunal must convene a hearing to consider the application, except in the case of a review of the Chief Executive’s decision on a minor claim, where the Tribunal has a discretion to review the decisions made by reconsidering the material before the Chief Executive and having regard to the application, although it can also conduct a hearing: section 504. Where there is a review of a decision in relation to a minor claim it is likely (but not inevitable) that there would be two parties to the review anyway, but in the case of the other decisions subject to review in this way the only other potential party to the proceeding before the Tribunal would be the Chief Executive, who would be entitled to appear in order to defend his decision. [23] Accordingly in relation to proceedings before the Tribunal covered by section 450(a) and (d) the Chief Executive would have a role in the proceedings before the Tribunal, and therefore would be an appropriate person to have a right of audience and a right of appeal. Argument for the first respondents [24] It was submitted by senior counsel of the first respondents that the jurisdiction of the Tribunal covered four separate kinds of proceeding, and that the provisions in the Act applying to proceedings generally (Part 5), in particular section 540 relating to appeals, did not in terms distinguish between different styles of proceedings in the Tribunal reflecting the different types of jurisdiction. Nevertheless there were substantial differences between those different types of proceedings, particularly regarding any identifiable interest of the Chief Executive. There are certainly substantial differences between the types of proceedings. One type involves hearing a disciplinary charge against a relevant person, one involves a merit review of an administrative decision, one involves what was submitted to be in substance the resolution of a claim for compensation by a member of the public against a relevant person, and one involves a review of an administrative decision in respect of such a claim. [25] For disciplinary proceedings the Chief Executive has the role of prosecutor and is therefore an appropriate party both in the proceedings before the Tribunal and on any appeal from the decision of the Tribunal to this court. In the case of the merit review of an administrative decision which would ordinarily only affect one person, it is appropriate for the administrator to appeal before the Tribunal to defend the decision, and therefore it is appropriate he have a right of appeal to this court in respect of the decision of the Tribunal. However it was submitted that, as regards claims against the fund, the Chief Executive is neither a necessary nor a proper contradictor. In respect of minor claims the Chief Executive has been a quasi- -- 8 of 14 -- 9 arbiter, and in respect of other claims the Chief Executive has no function except for referring the claim to the Tribunal, and giving effect to the Tribunal’s decision in favour of a claimant by making a payment out of the fund, and seeking to recover the amount from the person identified by the Tribunal as the person liable to reimburse the fund. [26] It was submitted that conferring a right of appearance on the Chief Executive and the Chief Executive’s representative in section 518 was consistent with this drafting approach of making legislative provisions apply indiscriminately to these four types of proceedings; it was appropriate for such persons to appear in respect of some of them, so they were given a right of audience in unrestricted terms. The legislation did not condescend to the subtlety of distinguishing in this provision, and in section 540, between the different types of jurisdiction which the Tribunal might be exercising. Section 540 was an all embracing prescription of the right of appeal but was not to be read as granting the Chief Executive a right to intrude on an appeal in respect of a matter where the Chief Executive was not a moving party or a contradictor in the hearing before the Tribunal. To construe the section otherwise would not be to advance the purposes of the Act, and would indeed be an absurd or unreasonable interpretation. [27] In the present case, the Chief Executive had no role in the proceeding before the Tribunal, properly, because it was a claim against the fund required to be made out as against the named respondents who had a right to appear before the Tribunal, and a liability to reimburse the fund if they lost. Analysis [28] It is I think not reasonable to approach the interpretation of the PAMD Act, and in particular section 540, on the basis that the legislature necessarily intended precisely what was expressed, and nothing more. For example, although that section provides an appeal to the District Court, the only express power conferred on the court on hearing the appeal is a power to make an order for costs: section 540(3). Presumably the legislature intended that, if an error of law was detected in the decision of the Tribunal, the court would have power to do something about that, although it is by no means clear just what it has power to do. In some cases it will be obvious how to correct the error of law, but there may be an error of law which has had the effect of preventing the Tribunal from holding an effective hearing. It is by no means clear that there is a power, in such circumstances, to remit the matter to the Tribunal for re-hearing. It is not apparent that there is any power to receive additional evidence on the hearing of the appeal. It is not necessary to decide any of these difficult questions now, but the fact that so much which ought to have been said was left unsaid in section 540 makes it more plausible that there may well have been some unexpressed limitation intended by the legislature on what is on its face a conferral of a general right of appeal on the Chief Executive in respect of any decision of the Tribunal. [29] Nevertheless, the interpretation advanced on behalf of the first respondents does in my opinion involve some reading down of the provision in sub-section (1). If the legislative intention was that the Chief Executive would only have a right of appeal when he had been a party to the proceeding before the Tribunal, the legislature could have omitted the first four words of the sub-section, or have introduced the sub-section with the expression “the Chief Executive or another party -- 9 of 14 -- 10 dissatisfied…”. Either expression would have made clear that the right of appeal was conferred only on someone who had been a party to a proceeding before the Tribunal. In effect I am being asked to interpret the section as if it were so expressed. In principle however it is preferable to construe a provision in an act in a way which avoids the result that the provision would have meant the same if words had been omitted from it: Pingel v R&R Leach Pty Ltd & Ors [2002] QCA 275 at para [4] per Jerrard JA. [30] The first respondents’ argument is really based on the proposition that in cases such as the present the Chief Executive ought not to have a right of appeal because he has no real interest in the proceeding before the Tribunal. That involves characterising that proceeding as being in substance a dispute between the claimant and the respondent identified by the Chief Executive. It is true that those parties have a clear interest in the outcome of the proceeding, but there is in my opinion an important difference between the situation that applies under the Act and the situation that would apply if the claimant, instead of making a claim on the fund, had sued the respondent in a court. In the latter case, it could clearly be seen that the claimant and the respondent were the only parties having an interest in the dispute. But the important difference in the present case is that the legislature has not provided that the claimant’s entitlement to recover is against the respondent. [31] In my opinion the interposition of the Claim Fund is an important element of the structure established by the Act, and is a difference of substance from one where the right to recover was given directly against the respondent. The interposition of the fund has the effect of insulating a successful claimant from any insolvency of a respondent, or any other difficulty in enforcing a favourable award. In effect payment is made out of public monies, which are reimbursed from the respondent if and to the extent that the efforts of the Chief Executive to enforce the statutory liability are effective. Because public money is involved, and the initial liability is against public funds, it is reasonable to expect that the legislature might have been concerned to see that there was someone in a position to ensure that the interest of the public was protected. In such circumstances, the public has an interest in there not being payments out of the fund other than in accordance with the Act, and to a greater extent than is permitted by law. If as a result of some error of law on the part of the Tribunal a claimant is entitled to be paid from the fund more than would have been paid had that error not been made, the public has an interest in having that error corrected. [32] The legislature has also obviously contemplated that a respondent may not actively oppose a claim. Indeed, the legislation permitted the claim to proceed even if the respondent cannot be located. If a respondent has not been located and served, or does not respond when given notice of a claim, or actively defend the claim, there will be no one in the position of a contradictor to the claimant in the proceeding before the Tribunal. 4 In such circumstances, if the Tribunal falls into error on a question of law in a way which results in a larger payment to the claimant than would have been the case had no error been made, there will be no respondent with any interest in challenging that decision, but the public interest would or could have been adversely affected. 4 The matters sought to be raised in this appeal were said not to have been raised by any party before the Tribunal: Affidavit of J A Tietzel filed 5 August 2002 para 10. -- 10 of 14 -- 11 [33] It is therefore reasonable to expect that Parliament may well have been concerned to permit an appeal to be brought to protect the public interest in the due administration of the fund, and to prevent errors of law of that nature by the Tribunal. The Tribunal is not under control of the Executive, although its members are appointed by the Governor in Council: section 452. They are appointed for a term not longer than seven years, and the Governor in Council has limited power to terminate the appointment prior to the expiration of the term: section 456. The obvious intent is that the Tribunal will be an independent body, and presumably it will have some relevant expertise. In such circumstances however Parliament may well have taken the view that it was necessary to provide for the possibility that the Tribunal, in deciding a claim, may make some error of law which had an adverse impact on public funds. [34] Take for example a situation where the Tribunal decided the amount of the claimant’s financial loss in a way which included an allowance for interest contrary to section 492(5) of the Act. 5 If no respondent has been able to be located, or if the respondent is insolvent, or if the respondent will be unable to satisfy the resulting liability anyway, there will be no one having an interest to appeal against the decision of the Tribunal to raise that question of law, but it would be in the public interest in those circumstances for public funds not to have to bear the burden of that part of the claim which ought not to have succeeded had the Act been properly applied. I see no reason why it is any way contrary to the scheme of the Act in such circumstances for the Chief Executive to be given a right to appeal against this decision to protect the public interest.6 [35] At one point in his argument senior counsel for the first respondents submitted that, insofar as the public interest and the conservation of public funds was properly a matter of concern, the appropriate party to protect that interest was the Treasurer, who was responsible for transferring amounts to the fund to meet its liabilities under section 408(3), or perhaps the Attorney General pursuant to his general interest in the due administration of the law. But whether or not those members of the Executive may be seen as having an appropriate interest, it is open for the legislature to provide that some other representative of the Executive, such as the Chief Executive of the department, is to be the person who is to have a capacity to defend the interest of the public. Once it is legitimate for the public interest to be defended or protected by someone, there is nothing absurd or unreasonable in the legislature choosing the Chief Executive as the appropriate person to do it. [36] Granting the Chief Executive a right to appeal in such circumstances would permit him, in an appropriate case, to act to protect the public interest. It can therefore be seen that there could well be a plausible reason why the legislature might want to give a right to the Chief Executive to appeal in all cases before the Tribunal, including those involving a claimant and the respondent, not just in cases where the Chief Executive was active as a party before the Tribunal. But once there is seen to be some good reason why the legislature might have intended that section 540(1) be read literally, there ceases to be any good reason for reading it down in the way 5 In two other appeals of the Chief Executive, where applications to strike out were argued at the same time, it was asserted that the Tribunal made just this error. For the purposes of this example I assume that that would be contrary to this subsection; otherwise I express no opinion on that point. 6 Another example would be where the Chief Executive wanted to appeal against a decision not to find a particular respondent liable for the loss; the claimant has no interest in pursuing such an appeal. -- 11 of 14 -- 12 contended for on the behalf of the first respondents. Their argument was in effect that a literal reading of that sub-section was absurd or unreasonable. If it is not absurd or unreasonable, and I do not think it is, the justification for the interpretation contended for on behalf of the first respondents disappears. [37] In my opinion section 540(1) means what it says. The Chief Executive has a right of appeal, and therefore standing to appeal, in respect of any decision of the Tribunal, including a decision on a claim other than a minor claim against the fund pursuant to section 450(b). He has standing to appeal because s 540(1) says that he has. He has (or may in a particular case have) an interest in the decision, because the public has an interest in the decision, and he has the function to represent the public interest by defending the fund. That in my opinion applies whether or not the Chief Executive has appeared in the proceeding before the Tribunal, as he has a right to under section 518. It follows from my reasoning that that section ought not to be read down either. In my opinion the appeal of the Chief Executive in the present case is competent. Abuse of process [38] It was submitted in the alternative that the appeal should be struck out as an abuse of process, because the Chief Executive had not raised the matters sought to be raised in the notice of appeal before the Tribunal, and therefore the first respondents had been denied the opportunity to deal with those matters before the Tribunal, which could have been done by leading relevant evidence before the Tribunal, or otherwise informing the Tribunal of matters relevant to the resolution of those issues. It was submitted that to permit the Chief Executive to agitate those issues on appeal would deny the first respondents natural justice. [39] The point is that, in the absence of any power of the court hearing the appeal to receive further evidence (or otherwise inform itself of relevant matters), insofar as the first respondents might, had the points been raised at the hearing, have been able to answer them in such a way, it would be unjust to enable those points to be taken the first time on appeal. The ordinary rule in relation to appeals was expressed by the majority of the High Court in Water Board v Moustakas (1988) 180 CLR 491 at 497 in the following terms: “More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.” [40] Hence the High Court recognised exceptions to the rule, where the facts, that is the relevant facts in relation to the point, had been established beyond controversy, or where the point is one of construction or of law. But as other authority makes clear it is not necessarily any question of law which can be taken for the first time on appeal. [41] In O’Sullivan v Watson (1986) 7 NSWLR 693 the New South Wales Court of Appeal had to consider whether an objector to the grant of a liquor licence, who had not taken before the licensing magistrate a point of law as to the test to be applied -- 12 of 14 -- 13 when identifying the neighbourhood by reference to which the application was to be considered, was to be permitted to take the point on appeal. McHugh JA, with whom Hope JA agreed, said at page 702 (omitting references): “The settled practice of the Supreme Court of New South Wales is that a determination of a magistrate, erroneous in point of law, may be challenged on appeal by stated case to the court under the Justices Act 1902 although the point was not raised before the magistrate. This practice was acknowledged without objection by the High Court. But it is equally well established that the court will not entertain a point of law not raised before the magistrate if, assuming it to have been taken before him, it is possible that it might have been met by calling further evidence. This court has also said that in an application for statutory prohibition under the Justices Act 1902, the authorities show that as regards questions relating to the evidence given before magistrates upon the matters which they have to decide, these not being conditions precedent to their possessing jurisdiction, the fact that no exception has been taken before the Magistrate is a matter proper to be taken into consideration …. Accordingly, a point of law may be taken on appeal under the Liquor Act 1982, s 146, although not raised in the court below. But this is subject to the exception that a party can only raise a new point of law if, on the evidence before the Licensing Court, the point was not curable. In George Hudson Limited v Australian Timber Workers’ Union (1923) 32 CLR 413 at 426 Isaacs J speaking of the principles applicable to a case brought under the Justices Act 1902, said: “In law the whole matter is open to the appellate court on the law with respect to the facts, but, that being open, the ordinary dictates of justice require that neither party shall be prejudiced by the late discovery of the new point. If it is incurable, he is not prejudiced, except perhaps as to costs; but, if curable by evidence, he may be prejudiced, and, therefore, on grounds of natural justice the party taking it must bear his own misfortune rather than pass it on to the other party.” This passage makes it plain that the principles applicable on an appeal under section 146 are those which govern appeals generally.” [42] In that case the majority took the view that, because a particular test had been applied by the magistrate without objection from the appellant, it was not open to the appellant to argue on appeal that the wrong test had been applied. The dissenting judge, Mahoney JA, took the view that the point of law of this nature would only be closed off from an appellant if the appellant had conceded the issue at the trial: page 699. He illustrated his view by the following example (page 700): “Legislation may give a tribunal a discretion to grant or refuse a licence. The factors relevant to the exercise of the discretion may be A, B and C. The tribunal and the parties may, eg , by reason of previous court decisions, believe that the relevant factors are only A and B and accordingly, without concession being made, the evidence may be confined to matters relevant to A and B and the decision given accordingly. On appeal it may appear that C was also relevant. If it so appears, the discretion may, in my opinion, be set aside. The fact that, if the relevance of C had appeared at the stage of -- 13 of 14 -- 14 the trial, evidence might have been produced in an attempt to show that the decision made by reference to A and B would have produced the same result having regard also to C. But this, I think, would not prevent the appeal court setting aside the exercise of the discretion as on proceedings for prerogative relief or the like.” [43] It is apparent from the consideration of just these two authorities (and there are many authorities in this area) that the fact that the point was not taken at first instance is not necessarily fatal, and that a point of law may (or may not) be able to be taken for the first time on appeal. A great deal depends on the identification of the point being taken by the appellant, and on a careful examination of whether the respondent has been prejudiced by the failure to take that point at first instance. That may in a particular case be a fairly difficult and subtle question. Further, in my opinion it is a question properly decided by the court when hearing the appeal, and should not be decided on a strike out application unless it was clear from the grounds in the Notice of Appeal that all the points sought to be raised by the appellant were of the character which was not allowed to be raised for the first time on appeal. [44] In the present case it is by no means clear just from consideration of the grounds of appeal that the issues might have been met by evidence. Ground 1 appears to be a “wrong test” ground, similar to the one which the majority would not allow to be raised on appeal in O’Sullivan (supra). On the other hand, grounds 4 and, perhaps, 3 appear to be alleging that the Tribunal was in effect double counting when calculating the financial loss. If the question is simply one of what loss had been proved by the material before the Tribunal, and whether there was some error in the nature of double counting by the Tribunal, that could be a question of law and it might well not be an issue which could have been met by the calling of further evidence at the trial, if the issue is one as to the correct conclusion to be drawn from the evidence which was called. If ground 5 is alleging in substance there was no jurisdiction to order costs, then that would appear to be a point which would not be excluded on appeal, and the same may apply to ground 6. [45] In my opinion in this case whether any or all of these points can properly be taken for the first time on appeal is something that is better determined on the hearing of the appeal. For present purposes it is sufficient to say that it is not so clear that all of the points sought to be raised by the appellant fall foul of the rule to which I have referred that a court would be justified in striking out the appeal as an abuse of process. [46] It follows that both of the grounds relied on by the first respondents fail and the application is dismissed with costs. -- 14 of 14 --