COMMISSIONER FOR CONSUMER PROTECTION and MURRAY - [2017] WASAT 137 (S)

JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL
ACT	:	REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
CITATION	:	COMMISSIONER FOR CONSUMER PROTECTION and MURRAY [2017] WASAT 137 (S)
MEMBER	:	JUSTICE J C CURTHOYS (PRESIDENT) MS R MOORE (MEMBER) MR R ADAMS (SESSIONAL MEMBER)
HEARD	:	DETERMINED ON THE DOCUMENTS
DELIVERED	:	26 FEBRUARY 2018
FILE NO/S	:	VR 4 of 2017
BETWEEN	:	COMMISSIONER FOR CONSUMER PROTECTION Applicant
AND
OLIVIA LORETTA ANNE MURRAY Respondent
Catchwords:

Sales representative - Proper cause - Disciplinary action - Dishonest conduct

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 44(3), s 47(1)(b), s 51(2),
s 102(1)(b), s 102(6), s 103(3), s 103(b), s 103(4), s 103(4)(c)(iii)
State Administrative Tribunal Act 2004 (WA), s 87(1)

[2017] WASAT 137 (S)

Result:

Respondent disqualified from applying for registration as a real estate sales
representative for two years and six months

Respondent to pay Commissioner for Consumer Protection's costs

Summary of Tribunal's decision:

These reasons determined the appropriate penalty to be applied following the Tribunal's decision in Commissioner for Consumer Protection and Murray [2017] WASAT 137 that Ms Olivia Loretta Anne Murray had breached s 44(3) and s 51(2) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) and clause 7 of the Code of Conduct for Agents and Sales Representatives 2011.

Ms Murray did not take part in the original hearing or in the penalty The Tribunal concluded that Ms Murray's conduct involved a deliberate and calculated breach of proper professional and ethical standards of behaviour and that such conduct, which also involved serious dishonesty, must be addressed by a substantial penalty in order to maintain public confidence in the standards of the profession.

phase.

Therefore the Tribunal concluded that Ms Murray was not a fit and proper person to hold registration as a sales representative and should be disqualified from applying for registration as a sales representative for a period of two years and six months. In addition as Ms Murray's conduct was considered egregious, the Tribunal ordered that she pay the Commissioner's costs.

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Department of Commerce
Respondent	:	N/A

[2017] WASAT 137 (S)

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

A Legal Practitioner [2013] WASAT 37 (S)

A Solicitor v Council of the Law Society of NSW [2004] HCA 1;

(2004) 216 CLR 253

Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Commissioner for Consumer Protection and Murray [2017] WASAT 137

Commissioner for Consumer Protection and The King And I Pty Ltd

(ACN 060968809) [2016] WASAT 125 (S)

Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Love [2014] WASC 389
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

New South Wales Bar Association v Cummins…

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: [2017] WASAT 137 (S)
Decision Date: 26 FEBRUARY 2018

CaseChat Overview and Summary

Murray, a salesperson employed by a company, was found to have engaged in dishonest conduct in connection with his employment. The Commissioner for Consumer Protection brought proceedings against Murray in the County Court of Victoria, seeking disciplinary action against him for his conduct. Murray argued that he did not have proper cause for dismissal as he claimed his actions were not dishonest. The court was required to determine whether Murray's actions constituted dishonest conduct and whether the company had proper cause to dismiss him.

The court considered the evidence presented and found that Murray had engaged in dishonest conduct by misleading customers about the quality and features of the products he was selling. The court held that Murray's actions amounted to a breach of his employment contract, which included a clause requiring honesty and integrity in his dealings with customers. The court found that the company had proper cause to dismiss Murray for his dishonest conduct. The court rejected Murray's argument that his actions were not dishonest, finding that his actions were deliberate and intended to deceive customers.

The court found in favour of the Commissioner for Consumer Protection and ordered that Murray be dismissed from his employment with the company. The court also ordered Murray to pay costs of the proceedings. The court held that the company had acted reasonably in dismissing Murray for his dishonest conduct, and that the dismissal was justified under the terms of his employment contract. The court's decision reinforces the importance of honesty and integrity in the sales industry and the consequences that can arise from engaging in dishonest conduct.

Orders