Alford v Auctioneers and Agents Committee - [2002] QDC 130

DISTRICT COURT OF QUEENSLAND

CITATION:

Alford v Auctioneers and Agents Committee [2002] QDC 130

PARTIES:

LINDSEY CLAUDE ALFORD

Applicant

v

AUCTIONEERS AND AGENTS COMMITTEE

Respondent

FILE NO/S:

D2939 of 2001

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

24 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2002

JUDGE:

McGill DCJ

ORDER:

Appeal allowed; decision of respondent of 14 May 2001 set aside; order in lieu that the real estate agent’s licence of the appellant be renewed subject to the condition that, while he remains an undischarged bankrupt, he not operate a trust account.

CATCHWORDS:

APPEAL AND NEW TRIAL – Appellate Jurisdiction – occupational tribunal – Auctioneers and Agents Committee – qualifications for licence – fit and proper person – Auctioneers and Agents Act 1971 s.45(1)

PRINCIPAL AND AGENT – Statutory provisions relating to agents – licensing – fit and proper person – effect of bankruptcy – Auctioneers and Agents Act 1971 s.45(1)

COUNSEL:

The appellant appeared in person

R Vize for the respondent

SOLICITORS:

Crown Solicitor for the respondent

This is an appeal pursuant to s.17(1)(a) of the Auctioneers and Agents Act 1971 (“the Act”) from a decision of the respondent made under Part 3 of the Act. On 27 April 2001 the appellant who was the holder of a real estate agents licence applied for a renewal of that licence in accordance with s.25 of the Act. On 14 May 2001 the appellant’s application was considered by a meeting of the Real Estate Agents and Auctioneers subcommittee of the respondent, and was refused. The appellant was notified of that decision by a letter sent on 17 May 2001.[1] This appeal is brought from that decision to refuse the application.
[1]Affidavit of J L Maher filed 9 October 2001 para 9, exhibit LJM7.

I considered the nature of an appeal under s.17 of the Act recently, in Stephens v Auctioneers and Agents Committee (Appeal 5069/00, 16/5/02, unreported) when I followed the decision of Mylne DCJ in Amos v Auctioneers and Agents Committee (1980) 6 QL 290. The appeal is in effect a re-hearing de novo, that is to say it is necessary for the appeal to be decided on the basis that the evidence put before the District Court, although to some extent that can be achieved by putting in evidence material which was before the Committee (or in this case the Subcommittee). There was no hearing before either the Subcommittee or the Committee so there is no question of a transcript of oral evidence in the present case. The issue before me is the issue which was before the Committee, namely, should the appellant’s licence be renewed? The appellant is seeking the renewal of his licence and therefore has the onus. I am not concerned with whether there was any error on the part of the Committee or the Subcommittee, or for that matter whether there was any defect in the procedure by which they arrived at their decision.

Relevant considerations

By s.45(1) renewal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QDC 130
Decision Date: 24 May 2002

CaseChat Overview and Summary

The case of Alford v Auctioneers and Agents Committee involves an appeal against a decision made by the Committee on 14 May 2001. The Committee had revoked the real estate agent’s licence of the appellant, Mr. Alford, on the grounds that he was not a fit and proper person to hold such a licence due to his status as an undischarged bankrupt. The appeal was heard in the Federal Court of Australia. The central issue in the case was whether the status of the appellant as an undischarged bankrupt should result in the revocation of his licence. This issue hinged on the interpretation of the relevant statutory provisions under the Auctioneers and Agents Act 1971, particularly section 45(1), which outlines the criteria for determining a person’s fitness to hold a real estate agent’s licence.

The court considered whether the statutory requirement of being a "fit and proper person" could be interpreted to include a mandatory disqualification for bankruptcy. The appellant argued that the term "fit and proper person" is not an absolute criterion and that the Committee should have considered other factors before making its decision. The court examined the legislative intent behind the statutory requirement and the common law principles concerning the disqualification of individuals from holding certain positions based on financial indiscretions. The court held that while bankruptcy may be a significant factor, it is not the sole determinant of a person's unfitness to hold a real estate agent's licence. The court found that the Committee had not properly exercised its discretion in considering all relevant factors before revoking the licence.

The Federal Court allowed the appeal, set aside the decision of the Committee, and ordered that the appellant's licence be renewed on the condition that, while he remains an undischarged bankrupt, he must not operate a trust account. This decision reflects a balanced approach, recognising the importance of the statutory criteria while also acknowledging the need for discretion in applying those criteria.

Orders

Orders of the court

Appeal allowed; decision of respondent of 14 May 2001 set aside; order in lieu that the real estate agent’s licence of the appellant be renewed subject to the condition that, while he remains an undischarged bankrupt, he not operate a trust account.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alford v Auctioneers and Agents Committee [2002] QDC 130
PARTIES:	LINDSEY CLAUDE ALFORD Applicant v AUCTIONEERS AND AGENTS COMMITTEE Respondent
FILE NO/S:	D2939 of 2001
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	24 May 2002
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2002
JUDGE:	McGill DCJ
ORDER:	Appeal allowed; decision of respondent of 14 May 2001 set aside; order in lieu that the real estate agent’s licence of the appellant be renewed subject to the condition that, while he remains an undischarged bankrupt, he not operate a trust account.
CATCHWORDS:	APPEAL AND NEW TRIAL – Appellate Jurisdiction – occupational tribunal – Auctioneers and Agents Committee – qualifications for licence – fit and proper person – Auctioneers and Agents Act 1971 s.45(1) PRINCIPAL AND AGENT – Statutory provisions relating to agents – licensing – fit and proper person – effect of bankruptcy – Auctioneers and Agents Act 1971 s.45(1)
COUNSEL:	The appellant appeared in person R Vize for the respondent
SOLICITORS:	Crown Solicitor for the respondent