CAREY and COMMISSIONER FOR CONSUMER PROTECTION
[2012] WASAT 237 (S)
•17 JANUARY 2013
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
| ACT |
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| CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| 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 fully the duties and obligations imposed by the Real Estate and Business Agents Act 1978 (WA) (REBA Act) on agents.
2 As Mr Carey had foreshadowed an application for an order under
s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the Commissioner should pay his costs of the proceeding, we made orders enabling the filing of any application for costs and supporting submissions by Mr Carey and responsive submissions by the Commissioner. We ordered that the issue of costs, if sought by Mr Carey, is, subject to any further order, to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
3 Mr Carey filed an application for costs together with his submissions
in support. Mr Carey acknowledged that the Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in review, including vocational review, proceedings is that normally each party should bear its own costs of the proceeding: Stephenson and The Legal Practice Board [2007] WASAT 259 at [47], [49]; Bernadt and Medical Board of Australia [2012] WASAT 185 at [139]. Mr Carey argued, however, that, having regard to s 87(4)(b) of the SAT Act, the Tribunal should depart from its usual practice in the circumstances of this case. Section 87(4)(b) of the SAT Act requires the Tribunal, when considering an application for costs against an original decision-maker in review proceedings, to have regard to whether that party 'genuinely attempted to make a decision on its merits'. Mr Carey submitted that an order for the payment of his costs should be made against the Commissioner in the circumstances of this case, because the Commissioner did not genuinely attempt to determine his licence renewal application on its merits. In contrast, the Commissioner submitted that she did genuinely attempt to make
[2012] WASAT 237 (S)
a decision on its merits, although the Tribunal ultimately came to a
different conclusion on the merits of the application.
Did the Commissioner genuinely attempt to make a decision on its merits?
4 Mr Carey submitted that there are three factors which indicate that
the Commissioner failed to genuinely attempt to make a decision on its
merits. The first factor was the timing of the Commissioner's decision.5 Mr Carey emphasised that the Commissioner's decision was made on
8 March 2012, almost 13 months after Mr Carey had been convicted by Magistrate Malone in the Perth Magistrate's Court of five breaches of s 12(2)(b) of the Fair Trading Act 1987 (WA) (FT Act) in respect of false or misleading representations made by three estate agents who were registered representatives of Westpoint Realty Pty Ltd, a real estate agency business of which Mr Carey was a director. Mr Carey submitted that, for a period of almost 13 months, the Commissioner did not utilise disciplinary procedures available under s 102 and s 103 of the REBA Act, allowed Mr Carey to continue as an agent, created a reasonable belief in Mr Carey's mind that the convictions were not serious enough to impact upon the renewal of his triennial certificate, and allowed him to continue to build a successful property management business which was then lost as a result of the non-renewal of his licence. Mr Carey submitted that 'the unexplained approach of the Commissioner [not to take any action prior to not renewing his triennial certificate] raises serious questions'. In particular, given that the primary object of disciplinary proceedings is the protection of the public, Mr Carey suggested that, if the Commissioner had genuinely considered that he was unfit following his conviction, the Commissioner needed to act immediately following the conviction to protect the public, but failed to do so. Mr Carey submitted that the timing of the Commissioner's decision in this context suggested that 'the Commissioner decided to punish [him] by using the now 13 month old decision (which was under appeal) not to renew his licence whilst ignoring his long record and record over the preceding 13 months'. He submitted that that approach 'is devoid or disconnected from a genuine attempt to protect the public and is unreasonable'.
6 The Commissioner noted that she only acquired the powers and
functions of the former Real Estate and Business Agents Supervisory Board on 1 July 2011. There is no evidence that, between July 2011 and when she made the reviewable decision in March 2012, the Commissioner considered the question of whether Mr Carey was no longer of good character and repute and a fit and proper person to hold a real estate
[2012] WASAT 237 (S)
agent's licence and reached a different conclusion to her decision in March 2012. There is also no evidence, nor can it be reasonably inferred from the fact that she did not bring disciplinary proceedings against Mr Carey, that when the Commissioner considered whether to renew Mr Carey's triennial certificate she did not genuinely form the view that Mr Carey was no longer of good character and repute and a fit and proper person to hold a real estate agent's licence, or that she acted merely to punish him, rather than to protect the public.
Furthermore, there is no evidence that the Commissioner ignored Mr Carey's record.
8 Finally, the fact that the Commissioner's decision precluded
Mr Carey from practising as a real estate agent from March 2012 until the Tribunal's decision does not indicate that the Commissioner failed to genuinely attempt to make a decision on the merits. This is a consequence which will occur in any case in which the Commissioner declines to renew an agent's triennial certificate.
9 The second factor which Mr Carey submitted indicates that the
Commissioner failed to genuinely attempt to make a decision on its merits was what Mr Carey considered to be the 'inconsistent treatment' which he received from the Commissioner in comparison to the three agents who made the false or misleading representations to the purchasers and then pleaded guilty before the Magistrate's Court. Whereas the Commissioner renewed the licences of two of the agents and did not object to the third agent, who had moved to Victoria, obtaining a licence there, she refused to renew Mr Carey's triennial certificate, even though he was found by the Magistrate not to have knowledge of, not to have authorised and not to have permitted the making of the false or misleading representations to the purchasers.
10 The Commissioner submitted that her decisions concerning the three
agents are irrelevant in relation to her decision to refuse to renew Mr Carey's triennial certificate. We do not agree. As Brennan J, sitting as President of the Administrative Appeals Tribunal, said in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639, specifically in relation to decision-making in relation to deportation, but in terms which are generally applicable to all administrative decision-making:
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with
commonly accepted notions of justice. (See also Thales Australia
[2012] WASAT 237 (S)
Limited and Commissioner for Equal Opportunity [2012] WASAT 222 at [17] - [18]).
11 However, as the Commissioner also submitted, there are two
important differences between the circumstances of the three agents and Mr Carey. First, the agents' convictions are 'spent convictions' for the purposes of the Spent Convictions Act 1988 (WA), and s 26(1) of that Act precludes the Commissioner from having regard to those convictions, or the charges to which the convictions related, in determining the good character, fitness, propriety or other like attribute of the agents. Second, Magistrate Malone made no adverse findings in relation to the agents' evidence, in contrast to his Honour's adverse findings about Mr Carey's evidence which were expressed in 'very strong and robust terms' (earlier reasons at [32]). In our view, therefore, the different treatment of Mr Carey and the agents who made the false or misleading representations to the purchasers is certainly reasonably explicable and does not indicate that the Commissioner failed to genuinely attempt to make a decision on its merits in relation to Mr Carey's application for renewal of his triennial certificate.
12 The third factor which Mr Carey submitted indicates that the
Commissioner failed to genuinely attempt to make a decision on its merits was what Mr Carey contended was a 'conflict of interest in the Commissioner being the authority which determined the initiating of prosecutions under the [FT Act] and the party who then must determine whether a party prosecuted is to hold a real estate licence when the prosecution is incomplete'. Mr Carey submitted that the Commissioner's decision to refuse to renew his triennial certificate while he had appealed Magistrate Malone's decision 'invariably leads to the appearance (if not the actuality) of bias'. Mr Carey also emphasised that he had requested the Commissioner to allow him to continue as an agent, subject to conditions similar to the ones imposed by the Tribunal, until the conclusion of the appeal and that he had offered to voluntarily undergo further education and training.
13 However, the Commissioner's various powers, duties and functions
are conferred by statute and the fact that she has power to both initiate prosecutions under the FT Act (and contest appeals in relation to offences under that Act) and determine to refuse an application by a person to renew their triennial certificate while a prosecution against that person under the FT Act or an appeal from a conviction is ongoing cannot reasonably, in itself, indicate that the Commissioner's decision to refuse to renew the triennial certificate was affected by actual bias. There is also
[2012] WASAT 237 (S)
no evidence that the Commissioner's decision to refuse Mr Carey's triennial certificate was affected by actual bias in the circumstances of this case. The question of 'appearance' of bias is not relevant to whether the Commissioner genuinely attempted to make a decision on its merits.
14 Finally, the Commissioner's rejection of Mr Carey's request to
continue as a real estate agent until the conclusion of the appeal and his offer to voluntarily undergo further education and training does not indicate that the Commissioner's decision was biased or otherwise not impartial, and that she therefore failed to genuinely attempt to make a decision on its merits. The Commissioner clearly genuinely attempted to make a decision on its merits and did so, although it was a different merits decision to the one to which we arrived.
Conclusion
15 It follows that we are not satisfied that the Commissioner failed to
genuinely attempt to make a decision on its merits in refusing Mr Carey's application for renewal of his triennial certificate. There is no reason to depart from the Tribunal's usual practice that each party should pay its own costs of review proceedings in the circumstances of this case.
16 We therefore make the following order:
Each party is to pay its own costs of this proceeding.
I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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