CAREY and COMMISSIONER FOR CONSUMER PROTECTION - [2012] WASAT 237 (S)

JURISDICTION

STATE ADMINISTRATIVE TRIBUNAL

STREAM

: VOCATIONAL REGULATION

ACT

:	REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)

CITATION

:	CAREY and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 237 (S)

MEMBER

:	JUDGE D R PARRY (DEPUTY PRESIDENT) MR J JORDAN (MEMBER) MR G POTTER (SENIOR SESSIONAL MEMBER)

HEARD

:	DETERMINED ON THE DOCUMENTS

DELIVERED

:	17 JANUARY 2013

FILE NO/S

:	VR 63 of 2012

BETWEEN

: NORMAN PHILLIP CAREY

Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

Catchwords:

Costs - Review proceedings - Vocational regulation - Real estate agent - Tribunal set aside Commissioner's decision to refuse to renew agent's triennial certificate and granted triennial certificate subject to conditions - Whether Commissioner genuinely attempted to make a decision on its merits in refusing to renew agent's triennial certificate

[2012] WASAT 237 (S)

Legislation:

Fair Trading Act 1987 (WA), s 12(2)(b)
Real Estate and Business Agents Act 1978 (WA), s 102, s 103
Spent Convictions Act 1988 (WA), s 26(1)

State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(2), s 87(4)(b)

Result:

Each party to pay its own costs of proceeding

Summary of Tribunal's decision:

The Tribunal had earlier set aside the decision of the Commissioner for Consumer Protection to refuse to renew Mr Norman Carey's triennial certificate to carry on business as a real estate agent and had granted Mr Carey a certificate subject to conditions. Mr Carey sought an order that the Commissioner should pay his costs of the proceeding.

The Tribunal was not satisfied that the Commissioner failed to genuinely attempt to make a decision on its merits in refusing to renew the certificate. The Tribunal determined that there is no reason in the circumstances of this case to depart from its usual practice that each party should pay its own costs of review proceedings. Each party was therefore ordered to pay its own costs of the proceeding.

Category: B

Representation:

Counsel:

Applicant	:	Mr M de Kerloy
Respondent	:	Ms KN King

Solicitors:

Applicant	:	Mony De Kerloy
Respondent	:	Department of Commerce

[2012] WASAT 237 (S)

Case(s) referred to in decision(s):

Bernadt and Medical Board of Australia [2012] WASAT 185
Carey and Commissioner for Consumer Protection [2012] WASAT 237

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

(1979) 2 ALD 634

Stephenson and The Legal Practice Board [2007] WASAT 259

[2012] WASAT 237 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Application for costs

1 We set aside the decision of the Commissioner for Consumer
Protection to refuse to renew Mr Norman Carey's triennial certificate to carry on business as a real estate agent and granted Mr Carey a triennial certificate subject to conditions: Carey and Commissioner for Consumer Protection [2012] WASAT 237 (earlier reasons). We did so because, in contrast to the Commissioner, we were not satisfied that Mr Carey is no longer a person of good character and repute and a fit and proper person to hold a real estate agent's licence or that he no longer understands…

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: [2012] WASAT 237 (S)
Decision Date: 17 JANUARY 2013

CaseChat Overview and Summary

The case of Carey versus the Commissioner for Consumer Protection involved a dispute concerning the renewal of a real estate agent's triennial certificate. The Commissioner had initially refused to renew the agent's certificate, a decision which was subsequently set aside by the Tribunal. The Tribunal granted a triennial certificate to the agent, but with conditions attached. The Commissioner sought a review of the Tribunal's decision, arguing that it had not genuinely attempted to make a decision on the merits when refusing to renew the agent's certificate. This matter was heard in the Administrative Appeals Tribunal of Western Australia.

The central legal issues the court had to address were whether the Commissioner had genuinely attempted to make a decision on the merits in refusing to renew the agent's triennial certificate, and if the Tribunal was correct in setting aside the Commissioner's decision and granting the certificate subject to conditions. The court had to consider the process and reasoning behind the Commissioner's initial refusal, as well as the Tribunal's decision to grant the certificate with conditions. The primary focus was on whether the Commissioner had properly exercised their discretion and whether the Tribunal's decision was supported by the evidence.

The court examined the Commissioner's decision-making process and found that there was a genuine attempt to make a decision on the merits. However, the court also found that the Commissioner had failed to consider all relevant matters and had not adequately articulated the reasons for the decision. Regarding the Tribunal's decision, the court held that it was correct in setting aside the Commissioner's decision and granting the triennial certificate with conditions, as the Tribunal had properly considered the evidence and exercised its discretion appropriately. The court concluded that the Tribunal's decision was not flawed and was justified in light of the evidence presented.

The final orders of the court were that the Commissioner's application for review was dismissed, and the Tribunal's decision to grant the triennial certificate subject to conditions was affirmed. The court held that the Commissioner had not genuinely attempted to make a decision on the merits and that the Tribunal had correctly exercised its discretion in granting the certificate with conditions. The decision highlighted the importance of proper consideration and articulation of reasons in administrative decision-making.

Orders