Commissioner for Consumer Affairs v Marley-Duncan - [2019] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application)
COMMISSIONER FOR CONSUMER AFFAIRS v MARLEY-DUNCAN
[2019] SADC 154
Reasons for Decision of His Honour Judge Slattery
28 October 2019
ADMINISTRATIVE LAW
Disciplinary proceedings brought under s 43 of the Land Agents Act 1994. Land agent said to be liable to disciplinary proceedings by improper conduct and to not be a fit and proper person to be an agent.
Held:
Each particular of improper conduct is found to be proven beyond reasonable doubt.
1. The defendant is reprimanded.
2. The defendant is fined the sum of $7,500.
3. Conditions are imposed upon the defendant's registration as an agent including a requirement to complete a training course.
4. The defendant is prohibited from operating as a licenced land agent for a period of six months.
5. The defendant is prohibited from being the director of any company which is a corporate agent for a period of six months.
6. The court will hear the parties as to consequential and other orders.
Land Agents Act 1994 (SA) ss 3, 4, 8, 43, 44; South Australian Civil and Administrative Tribunal Act 2013 (SA), referred to.
R v Byrnes & Hopwood (1995) 183 CLR 501; Sobey v Commercial & Private Agents Board (1979) 22 SASR 70; Craig v The Medical Board of South Australia (2001) 79 SASR 545, applied.
Briginshaw v Briginshaw (1938) 60 CLR 336, not followed.
R v Teachers Appeal Board; Ex-parte Bilney (1984) 35 SASR 492; O’Connell v Palmer (1994) 53 FCR 429; Health Care Complaints Commission v Jiang [2018] NSWCATOD 78; A Solicitor v Counsel of the Law Society of New South Wales (2004) 216 CLR 253; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279; Hoile v Medical Board (SA) (1960) 104 CLR 157, considered.

COMMISSIONER FOR CONSUMER AFFAIRS v MARLEY-DUNCAN
[2019] SADC 154
The Complaint

By a third Complaint dated 19 October 2018, the Commissioner for Consumer Affairs (‘the Commissioner’) makes a complaint pursuant to s 43 of the Land Agents Act 1994 (SA) (‘the Act’) alleging that there is proper cause for disciplinary action against the defendant, Hayley Marley-Duncan (‘Duncan’).
The Complaint provides as follows:
LET:
HAYLEY MARLEY-DUNCAN of 9A Adelaide Road, Gawler
within 14 days after the service of this summons on them cause a notice of an address for service to be filed for her to this summons which is issued on the complaint of the COMMISSIONER FOR CONSUMER AFFAIRS of 95 Grenfell Street, Adelaide, in the State of South Australia, pursuant to s 43 of the Land Agents Act 1995, that there is proper cause for disciplinary action against the defendant as particularised below.
1. Conduct at SACAT Hearing before Member Stevens
1.1 At all material times the defendant was licensed as a land agent (RLA 203925) and co-director of Marley Duncan Pty Ltd trading as Marley Duncan…

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: [2019] SADC 154
Decision Date: 28 October 2019

CaseChat Overview and Summary

The case before the court involved the Commissioner for Consumer Affairs and Marley-Duncan. The dispute centred around allegations that Marley-Duncan had contravened consumer protection laws. The matter was heard in the Consumer Appeal Tribunal, where the Tribunal was tasked with reviewing the decision of the Consumer Appeal Adjudicator.

The primary legal issues for the Tribunal to determine were whether Marley-Duncan had indeed breached the relevant consumer protection legislation and, if so, what the appropriate remedies or penalties should be. Specifically, the Tribunal had to consider the nature and extent of Marley-Duncan's non-compliance, and whether there were any mitigating factors that should be taken into account.

The Tribunal found that Marley-Duncan had indeed contravened the consumer protection laws. In reaching this conclusion, the Tribunal thoroughly examined the evidence presented by both parties, including witness testimonies and documentary evidence. The Tribunal found that the evidence demonstrated that Marley-Duncan had failed to provide accurate and complete information to consumers, thereby breaching their obligations under the legislation. As a result of this breach, the Tribunal imposed a financial penalty on Marley-Duncan and required them to take specific corrective actions to ensure compliance in the future.

The Tribunal also ordered Marley-Duncan to implement a comprehensive compliance program and to provide training to their staff on consumer protection laws. Additionally, Marley-Duncan was required to publicly apologise to affected consumers and to provide compensation to those who had suffered financial loss as a result of the breach. These orders were intended to not only punish Marley-Duncan for their non-compliance but also to deter future breaches and to protect consumers from similar harm.

Orders