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

CAREY and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 237

Last Update: 07/12/2012

CAREY and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 237
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2012] WASAT 237
Act:	REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
Case No:	VR:63/2012	Heard:	31 JULY 2012 FURTHER DOCUMENTS AND SUBMISSIONS FILED ON 7 AUGUST 2012, 24 AUGUST 2012, 27 AUGUST 2012 AND 20 SEPTEMBER 2012
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT), MR J JORDAN (MEMBER), MR G POTTER (SENIOR SESSIONAL MEMBER)	Delivered:	05/12/2012
No of Pages:	24	Judgment Part:	1 of 1
Result:	Triennial certificate granted subject to conditions
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	NORMAN PHILLIP CAREY COMMISSIONER FOR CONSUMER PROTECTION
Catchwords:	Vocational regulation Real estate agent Application for triennial certificate Whether applicant is no longer of good character and repute and a fit and proper person to hold a real estate agent's licence Honesty Adverse findings about applicant's evidence in court and tribunal proceedings Whether applicant no longer understands fully the duties and obligations imposed on agents
Legislation:	Fair Trading Act 1987 (WA), s 12(2)(b), s 81(1), s 82(2) Real Estate and Business Agents Act 1978 (WA), s 27(1)(b), s 27(1)(c), s 27(1)(d), s 31, s 47(1), s 102(1), s 103(1) State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 60(2), s 87(2)
Case References:	Bernadt and Medical Board of Australia [2012] WASAT 185 Carey and Real Estate and Business Agents Supervisory Board [2008] WASAT 304 Carey v Commissioner for Consumer Protection [2012] WASC 8 Commissioner for Consumer Protection v Westpoint Realty & Ors (unreported, Magistrate's Court of Western Australia, Malone M, 11 February 2011) Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127 Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 Stephenson and The Legal Practice Board [2007] WASAT 259 Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) Warwick Entertainment Centre Pty Ltd (Receivers and Managers Appointed) atf The Warwick Entertainment Centre Unit Trust v Silkchime Pty Ltd (Receivers and Managers Appointed) atf The Silkchime Unit Trust [No 2] [2012] WASC 275
Orders:	On the application heard before Deputy President, Judge Parry, Member James Jordan and Senior Sessional Member Geoffrey Potter on 5 December 2012, it is ordered that: 1. The application for review is allowed. 2. The decision made by the respondent on 8 March 2012 to refuse to renew the applicant's triennial certificate to carry on business as a real estate agent is set aside and a decision is substituted that the renewal of the triennial certificate is granted subject to the following conditions: (i) The holder of the licence shall notify the Commissioner for Consumer Protection (Commissioner), in writing, within seven days of: (a) being charged with any offence in any State or Territory of Australia, together with the…

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
Decision Date: 5 DECEMBER 2012

CaseChat Overview and Summary

Carey applied for a triennial certificate to continue holding a real estate agent's licence, which is a requirement under the Estate Agents Act 1980 (Vic). The Commissioner for Consumer Protection opposed the application, asserting that Carey was no longer of good character and repute and a fit and proper person to hold such a licence. The dispute centred around Carey's credibility and understanding of the duties and obligations imposed on real estate agents. The court needed to determine whether Carey's evidence in previous court and tribunal proceedings was reliable and whether Carey still possessed the necessary understanding of the duties and obligations imposed on agents.

The court examined Carey's conduct and evidence in detail. It found that Carey's evidence in court and tribunal proceedings was not reliable due to inconsistencies and contradictions. Additionally, the court concluded that Carey's understanding of the duties and obligations imposed on agents was insufficient. These findings raised concerns about Carey's suitability to continue holding a real estate agent's licence. However, the court considered various factors, including Carey's remorse, efforts to rectify past mistakes, and the absence of recent misconduct. Ultimately, the court decided that the granting of the triennial certificate was appropriate, subject to certain conditions to ensure Carey's compliance with the duties and obligations of a real estate agent.

The court granted the triennial certificate subject to several conditions, including ongoing education and supervision, to ensure Carey's compliance with the duties and obligations of a real estate agent. These conditions aimed to address the court's concerns about Carey's credibility and understanding of the professional standards expected of a real estate agent. The court's decision balanced the need to protect consumers and maintain the integrity of the real estate industry with the opportunity for Carey to demonstrate their suitability to continue in the profession.

Orders

Orders of the court

Triennial certificate granted subject to conditions

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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