Federal Court of Australia

Storry v Business Licensing Authority (No 2) [2023] FCA 102

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The parties are to file and serve submissions in relation to costs of no more than five (5) pages in length by 27 February 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THOMAS J:

BACKGROUND

1    The following background is extracted from the decision of the Administrative Appeals Tribunal (Tribunal) dated 5 October 2021 (Storry v Business Licensing Authority [2021] AATA 5329).

2    Ms Venetia Louise Storry, the applicant, took over her late father’s real estate business, known as Anthony Storry Real Estate (ASRE) in December 2016. In 2017, the applicant registered Storry Real Estate (SRE) as a corporation and listed herself as sole director and shareholder. SRE registered ASRE as a business name and SRE was registered with a Queensland real estate licence from 26 September 2018.

3    In July 2018, the Queensland Office of Fair Trading (OFT) received an audit report of the trust account for SRE for the period of January 2017 to December 2017. This report detailed numerous contraventions under the Agents Financial Administration Act 2014 (Qld) and the Property Occupations Act 2014 (Qld). The OFT made several decisions with respect to the operation of SRE’s trust accounts and the conduct of the applicant. With respect to these decisions, the applicant:

(a)    filed an application for a statutory order of review in the Supreme Court of Queensland on 18 October 2018;

(b)    filed an interlocutory application for an injunction to stay the decision of the OFT to appoint a receiver over the trust account of ASRE in the Supreme Court of Queensland on 22 October 2018. This was rejected by Brown J in the Queensland Supreme Court on 25 October 2018; and

(c)    filed in the Queensland Court of Appeal an application for a stay of Brown J’s order on 8 November 2018, which was dismissed by Martin J on 14 November 2018.

4    On 21 December 2018, the applicant filed an application for review of the decisions made by the OFT in the Queensland Civil and Administrative Tribunal (QCAT), which went to a hearing on 26 March 2020. On 1 April 2020, Member Kanowski ordered that the decisions of the OFT to make the relevant directions be confirmed.

5    On 1 August 2019, the OFT commenced disciplinary proceedings against the applicant and SRE in the QCAT.

6    On 18 June 2020, the applicant sought a statutory review pursuant to the Judicial Review Act 1991 (Qld) with respect to the decisions made by the OFT. Several days later, on 24 June 2020, the OFT filed an application seeking to dismiss the applicant’s application pursuant to s 48 of the Judicial Review Act 1991 (Qld). On 15 July 2020, Boddice J dismissed the applicant’s application and ordered the applicant to pay the OFT’s costs.

7    On 30 July 2020, the applicant filed an application to appeal the decision made by Member Kanowski of 1 April 2020 in the Supreme Court of Queensland, with the applicant applying to strike off the disciplinary proceedings initiated by the OFT on 21 November 2019. On 2 March 2021, Phillippides, Mullins JJA, and Williams J refused the applicant’s application for leave to appeal and ordered the applicant pay the OFT’s costs of the application on a standard basis.

8    On 27 April 2021, the applicant’s application to strike-off the OFT’s application for disciplinary proceedings was dismissed by the QCAT.

9    On 1 June 2021, the applicant lodged an appeal of the QCAT’s decision to dismiss the applicant’s application to strike-off disciplinary proceedings initiated by the OFT on 1 August 2019.

10    On 16 July 2021, the applicant applied to the BLA for an estate agent’s licence in Victoria under the Mutual Recognition Act 1922 (Cth) (the MRA) on the basis that she had an equivalent occupation, registered in Queensland. As part of her application, the applicant submitted an undated, signed and witnessed statutory declaration, which stated:

…

4.    I am not the subject of disciplinary proceedings in any State or Territory (including preliminary investigations or action that may lead to disciplinary proceedings) in relation to the occupation(s) listed in my Application.

…

9.    I consent to the making of inquiries of, and the exchange of information with, the authorities of any State or Territory regarding my activities in the relevant occupation(s), and otherwise regarding matters relevant to my notice.

…

I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declaration Act 1959, and I believe that the statements in this declaration are true in every particular.

…

(Emphasis in original)]

11    On 26 August 2021, the BLA wrote to the applicant advising that her application for an estate agent’s licence had been refused pursuant to s 23(1)(a) of the MRA as the applicant had provided a materially false or misleading statement with respect to her request for the grant of an estate agent’s licence in Victoria.

THE TRIBUNAL PROCEEDINGS

12    On 1 September 2021, the applicant applied to the Tribunal for an urgent review of the decision of the BLA of 26 August 2021.

13    The BLA, through submissions provided to the Tribunal, requested that the Tribunal consider exercising its power pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to dismiss the application for review on the basis that it had no reasonable prospects of success.

14    The decision of the Tribunal was that, pursuant to s 42B(1)(b) of the AAT Act, the Tribunal dismissed the application for review on the basis that the Tribunal was satisfied the application had no reasonable prospects of success.

THE APPEAL FROM THE TRIBUNAL

15    By notice of appeal from a tribunal lodged on 22 October 2021, the applicant appealed from the decision of the Tribunal made on 5 October 2021.

16    By way of interlocutory application filed on 26 November 2021, the BLA sought an order, pursuant to r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) (Rules) “that judgment be given against the [applicant] because the [applicant] [had] no reasonable prospect of successfully prosecuting the proceeding”.

17    After exchange of submissions and an adjourned hearing due to the Coronavirus disease 2019 (COVID-19) pandemic, the interlocutory application was heard on 24 March 2022.

18    At the hearing, counsel for the BLA indicated that the BLA had become aware of a sequestration order being made against the applicant and of the cancellation of the applicant’s Queensland real estate agent licence (on the basis of which the application for mutual recognition had been made).

19    To enable the implications of the sequestration order and the cancellation of the real estate agent licence to be addressed, the following orders were made on 24 March 2022:

1.    By 31 March 2022 the [BLA] file and serve evidence regarding the real estate licen[c]e in Queensland.

2.    By 7 April 2022 the applicant file and serve submissions regarding the issues concerning bankruptcy and the real estate licen[c]e.

3.    By 14 April 2022 the [BLA] file and serve submissions in response.

4.    The proceeding be adjourned to a date for hearing (estimated duration of ½ day) not before 15 April 2022.

20    The proceedings were subsequently delayed while various applications in relation to the bankruptcy were heard and determined.

THE BANKRUPTCY PROCEEDINGS

21    In relation to the bankruptcy proceedings, the following occurred:

(a)    the applicant filed a notice of appeal of the sequestration order on 30 March 2022;

(b)    the applicant sought interim orders in the appeal to “restrain and stop the appointed [trustee] from acting as a trustee” and to stay the sequestration order until the matter was determined. Collier J refused the interim orders on 7 April 2022 (Storry v Weir [2022] FCA 362);

(c)    the applicant filed an interlocutory application on 26 May 2022 seeking orders staying “the operation of the process of the [receiver],” staying “the operation of the [trustee] in relation to the financial disclosure and decision to gain creditor’s consent to act” and staying “any operation of the [trustee]” until the determination of the bankruptcy proceedings. After exchange of submissions and a hearing, the interlocutory application and the appeal were dismissed on 7 July 2022 by me;

(d)    the applicant filed an interlocutory application on 29 August 2022 which sought to set aside the judgment of 7 July 2022 pursuant to s 39.05(b) of the Rules on the basis that the judgment was obtained by fraud. After the filing of submissions, the interlocutory application was dismissed on 15 November 2022 by me (Storry v Weir (No 2) [2022] FCA 1360 (Storry v Weir)); and

(e)    the applicant filed an application for leave to appeal from the interlocutory judgment of 15 November 2022 and sought a stay of the sequestration orders. Logan J dismissed the application for leave to appeal (Storry v Weir [2022] FCA 1484), as special leave to appeal to the High Court of Australia was the only right to challenge the orders of 15 November 2022.

EVIDENCE RELATING TO THE APPLICANT’S REAL ESTATE AGENT LICENCE

22    On behalf of the BLA, an affidavit of Brayden Hayes sworn on 30 March 2022 was filed in the proceeding.

23    This affidavit exhibited copies of:

(a)    a sequestration order made by Judge Egan on 18 March 2022;

(b)    letters sent by the OFT to the applicant; and

(c)    Licensing Register Extracts report.

24    The letters from the OFT informed the applicant that the real estate agent licence was cancelled on 18 March 2022.

25    The extract confirmed that the licence had been cancelled on 18 March 2022.

26    I conclude that the applicant’s real estate agent licence, which forms the basis of the application to the BLA for an estate agent’s licence in Victoria, was cancelled on 18 March 2022.

THE SUBMISSIONS

The applicant’s initial submissions filed on 11 April 2022

27    The applicant’s initial submissions filed on 11 April 2022 were as follows:

1.    The sequestration order is currently under appeal yet to be listed

2.    The interim orders to stay the matter have been provided today the 08/04/2022 for assessment for an application to leave to appeal against a dismissal of the same.

3.    The application and affidavit with supporting exhibits explains the matters needed to be considered for the special leave application

4.    The applicant holds that It would be premature to dismiss that application for mutual recognition on the grounds of no utility as the appeal and special leave appeals are yet to be determined by the Federal Court of Australia.

5.    The applicant is open - that QUD103/2022 on appeal by heard by your Honour prior to the decision of QUD 343/2021 as your Honour understands the complexities involved in the

(Errors in original)

The BLA’s submissions relating to the question of futility filed on 19 April 2022

28    The written submissions of BLA were filed on 19 April 2022, in reply the applicant’s written submissions filed 11 April 2022 and the applicant’s affidavit sworn on 11 April 2022.

29    The BLA noted that s 20 of the MRA entitles an applicant, registered in an occupation in one State, to be registered in an equivalent occupation in a second State “as if the law of the second State that deals with registration expressly provided that registration in the first State is sufficient ground of entitlement to registration”.

30    The BLA noted that, on 18 March 2022, a sequestration order was made against the applicant and that, by way of letter of 22 March 2022, the OFT informed the applicant that her real estate agent licence had been cancelled pursuant to s 77 of the Property Occupations Act 2014 (Qld), by reason of her insolvency, on 18 March 2022.

31    The submission was made that, as the applicant had ceased to be registered as a real estate agent in Queensland, even if the appeal were successful, the applicant would be unable to be registered as a real estate agent in Victoria.

32    The BLA responded to the applicant’s submissions that it would be premature to dismiss her appeal on the grounds of futility because she was appealing the sequestration order and had obtained a stay of the sequestration order pending the sequestration appeal (referred in the applicant’s submissions dated 11 April 2022). The BLA noted that, whilst the applicant had appealed against the sequestration order, her application for a stay of the sequestration order was unsuccessful.

33    The BLA referred to the order by Collier J on 7 April 2022 dismissing the applicant’s application for a stay of the sequestration order. The BLA noted that Collier J observed: “[i]n my view…[the applicant’s] prospects of successfully appealing the decision of Acting Magistrate Smith (thus seeking to establish error on the part of the primary Judge in the present proceedings) are practically very poor” (italics in original). Based upon observations made by Collier J, the BLA submitted it followed that the sequestration appeal will inevitably fail and the applicant will remain ineligible to hold a real estate agent licence for the foreseeable future.

34    As a result, it was submitted that there was no real controversy as to the applicant’s right, pursuant to s 20 of the MRA, to be registered as a real estate agent in Victoria.

35    The BLA referred to the Full Court of the Federal Court decision in Beitseen v Johnson (1989) 29 IR 336 (Beitseen), the Federal Court decision in Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76; [2001] FCA 453 (Ibarcena) and the New South Wales Court of Appeal decision in Jardin v Metcash Ltd (2011) 214 IR 448; [2011] NSWCA 409 (Jardin) as authorities for the proposition that the Court will halt proceedings (including an appeal) that pose a question which has become moot.

36    The BLA noted that courts do not ordinarily, as a matter of principle, determine proceedings which involve issues which are not live between the parties.

The applicant’s submissions relating to the question of futility filed 25 November 2022

37    The applicant filed submissions on 25 November 2022 as well as an affidavit filed on the same date.

38    Under the heading “Background”, [1] to [13] appear to deal with matters which were before the QCAT as well as the Supreme Court of Queensland.

39    Under the heading “A. Futility for Appeal to be granted MUTUAL RECOGNITION”, reference is made to the three annexures to the applicant’s affidavit.

40    The three annexures are blank forms.

41    The submission made in relation to those annexures was as follows:

(a)    Annex A is a document headed “Application for a real estate salesperson registration certificate”. The submission that was made was: “matter of suitability is determined by the circumstances. Bankruptcy does not automatically disqualify the agent to hold a sales person registration certificate”;

(b)    Annex B is said to be a true copy of the “Agents’ representatives” requirements for Victoria. The submission made with respect to this document was: “Page 15 under the heading ‘Permission’, it states that you are required to ask permission if you are insolvent under administration to hold an agent’s representative registration in Victoria”; and

(c)    Annex C is a document headed “Disqualification and permissions - estate agents” which appears to have been issued by Consumer Affairs Victoria. The submission made was: “On page 19 of Disqualifications and permissions of an estate agent under the heading ‘Note’ it states ‘ ‘ If you are granted permission during your insolvency period you can only work as an employee of an estate agency” (errors in original).

42    The applicant submitted that the annexures “do not support that an appeal for mutual recognition is futile even if the bankruptcy appeal on the question of fraud be unsuccessful due to permission to hold a real estate registration certificate while insolvent”.

43    The applicant submitted that a real estate agent registration is permitted on application both in Queensland and Victoria. The registration permits an agent to work under another real estate agency while insolvent.

44    The applicant referred to the High Court decision in Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12 (Clone Pty Ltd) as follows (at [64]):

… sharp historical distinction between an original bill to set a judgment aside for fraud and a bill of review. Reasonable diligence was never a requirement of an original action based upon fraud to set aside a judgment. It was only ever a condition for leave to be granted a bill of review on fresh evidence …

45    The applicant submitted that this supports “that the appeal to set aside the sequestration order on the judgment of the debt of Acting Magistrate Smith should be set aside”.

46    The applicant also referred to the case of Andriotis and Building Practitioners Board [2017] AATA 378 (Andriotis). The applicant submitted that “[r]egistration in the first state is sufficient grounds to entitlement in the second state” (errors in original).

DISCUSSION

47    The applicant’s submissions of 11 April 2022 did not deal with the question of futility. The submissions asserted that it would be premature to dismiss the application for mutual recognition on the grounds of no utility as the appeal and special leave appeals were still to be determined by the Federal Court.

48    A summary of the proceedings relating to the sequestration order is set out in these reasons.

49    The appeal against the sequestration order was unsuccessful.

50    The applicant has not, in any material, disputed that the OFT cancelled the applicant’s real estate agent licence on 18 March 2022 and informed the applicant of that fact by letter. Exhibit “BH-5” to the affidavit of Brayden Hayes sworn on 30 March 2022 exhibits a “Licensing Register Extracts Report” which records the cancellation of the real estate agent licence.

51    The first thirteen paragraphs under the heading “Background” in the submissions filed on 25 November 2022 contained information concerning proceedings which apparently were brought before the QCAT (both at first instance and on appeal) as well as appeals to the Supreme Court of Queensland. Nothing in this information suggests that the decision by the OFT was overturned or disputes that the real estate agent licence was cancelled.

52    The annexures to the applicant’s affidavit, which are referred to in the submissions, do not take the matter further.

53    The underlying requirement for mutual recognition is that the person is registered in the first State for an occupation that is the equivalent to an occupation in the second State.

54    The unchallenged evidence is that the applicant is not registered in the first State (Queensland) for an occupation that is the equivalent to an occupation in the second State (Victoria). That fundamental requirement is missing in these circumstances.

55    Section 20 of the MRA continues that a person who lodges an application seeking registration for an equivalent occupation in accordance with the mutual recognition principle “is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that the registration in the first State is a sufficient ground for entitlement to registration”.

56    Again, this underlines the importance of registration in the first State. The uncontested evidence is that the applicant is not registered in Queensland. References in Annexures A, B and C do not change the position that the applicant holds no relevant licence in Queensland which might be the basis of an application for mutual recognition.

57    The applicant’s submissions (outlined above in [41]) do not appear to be relevant to whether the applicant holds a licence in Queensland.

58    As the position currently stands, the applicant cannot be granted an estate agent’s licence in Victoria under the MRA as she is not registered in the equivalent occupation (as a real estate agent in Queensland).

59    The reference to Clone Pty Ltd in the applicant’s submissions does not appear to relate to the issue of futility. It appears to relate to the application made by the applicant in the sequestration matter that the judgment dismissing the appeal dated 7 July 2022 be set aside because of issues to do with fraud. This application was unsuccessful (see Storry v Weir).

60    The reference to Andriotis seems to take the matter no further. The reference is to s 20 of the MRA, which is dealt with above.

61    Section 23 of the Federal Court of Australia Act 1976 (Cth) provides that the Court “has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”.

62    The action commenced by the applicant is clearly within the Court’s jurisdiction and s 23 gives the Court a very broad power to make orders which are efficient and just in the administration of justice (Ilumba Pty Ltd v Malouf [2019] FCA 2095 at [15] per Derrington J).

63    It is plainly not efficient in the administration of justice, or just for participants seeking hearings before the Court, for the Court to be devoting its time to determining proceedings which involve issues which are not live as between the parties.

64    As was said by the Full Court in Beitseen (at 338):

… When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result …

65    In Ibarcena, Finn J held (at [20]): “Any order made would be futile. In the circumstances, the application is not deserving of a hearing”.

66    In the New South Wales Court of Appeal in Jardin, in relation to the Court’s general power to act in these circumstances, it was observed (at [30]) that: “The court always has power to act to ensure that its processes are not abused. One aspect of this power is that it can act to halt proceedings (including an appeal) that pose a question that has become moot, ie that will produce no foreseeable consequence for the parties”.

67    In the circumstances, proceeding to deal with the original merits of this matter is not an efficient and appropriate use of Court time – the issues are no longer “live” as between the parties and the determination of the issues will produce no foreseeable consequence or benefit for the parties.

68    In those circumstances, the appeal is dismissed.

COSTS

69    I order that the parties file and serve submissions in relation to costs of no more than five (5) pages in length, by 27 February 2023.

Associate:    

Dated:    16 February 2023