Cross and Business Licencing Authority - [2021] AATA 1101

Cross and Business Licencing Authority [2021] AATA 1101 (3 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7715
2020/7897

Re:Ronald Cross
APPLICANT

Business Licencing AuthorityAnd
RESPONDENT

AndCommissioner for Consumer Affairs (South Australia)
OTHER PARTY

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:3 May 2021
Place:Sydney

The reviewable decision will be set aside and in lieu thereof the applicant’s registration be reinstated subject to the conditions mentioned in the reasons for decision.
...........................[sgd].....................................
Deputy President B W Rayment OAM QC
CATCHWORDS
MUTUAL RECOGNITION - where applicant holds a real estate agent licence in NSW –where applicant sought and was granted registration as a real estate agent in SA and VIC under the Mutual Recognition Act 1992 (Cth) – where SA licence subsequently cancelled – where VIC licence subsequently cancelled – where applicant sought and was refused reinstatement under the Mutual Recognition Act 1992 (Cth) in VIC – whether licence cancellation in SA void – whether decision of the Respondent a reviewable decision – whether reinstatement the correct and preferable decision - where Tribunal found licence cancellation not void – where reinstatement found to be the correct and preferable decision – decision set aside and substituted
LEGISLATION
Mutual Recognition Act 1992 (Cth)
Land Agents Act 1994 (SA)
CASES
Schultz v Medical Board of Queensland [2001] FCA 1771
Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 372 ALR 1
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
3 May 2021

Until 1 February 2021 the applicant held, from 8 October 2009, a licence as a business agent, and from 2 February 2009, a real estate agent’s licence under the Property, Stock and Business Agents Act2002 (NSW). The applicant now holds a licence under s 8 of the same Act, now known as the Property and Stock Agents Act 2002 (NSW), which entitles him to perform the functions of a both business agent and a real estate agent, and which expires on 1 February 2024.
The applicant sought registration as a real estate agent in South Australia and in Victoria under the provisions of the Mutual Recognition Act 1992 (Cth) (the MRA) by virtue of the licence which he held. The application in South Australia led to registration in that State on 12 June 2012.
On 15 October 2015, Sackville AJA published his reasons for judgment in Australian Securities and Investments Commission (ASIC) v Park Trent Properties Group Pty Ltd (No 3) [2015] NSWSC 1527 in which his Honour held that the defendant contravened s 911A(1) of the Corporations Act 2001 (Cth) by carrying on a financial services business without an Australian Financial Services Licence (AFSL). Park Trent Properties Group Pty Ltd was one of the applicant’s companies.
There was an appeal from the judgment of Sackville AJA but the appeal did not involve any finding to the contrary of the relevant judgment of Sackville JA. In any event that appeal was dismissed.
On 20 July 2016 a delegate of ASIC made a banning…

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: [2021] AATA 1101
Decision Date: 3 May 2021

CaseChat Overview and Summary

This matter concerned an applicant who held a real estate agent licence in New South Wales and had subsequently obtained registration as a real estate agent in South Australia and Victoria under the Mutual Recognition Act 1992 (Cth). Following the cancellation of his South Australian licence, his Victorian licence was also cancelled. The applicant sought reinstatement of his Victorian licence under the Mutual Recognition Act but was refused. The applicant then sought review of this refusal.

The court was required to determine whether the cancellation of the applicant's licence in South Australia was void, whether the decision of the Business Licencing Authority to refuse reinstatement was a reviewable decision, and whether reinstatement of the Victorian licence was the correct and preferable decision. A key issue was the interpretation of section 11C of the relevant South Australian legislation concerning the Commissioner's power to cancel, suspend, or impose conditions on registration, and how this interacted with the provisions of the Mutual Recognition Act, particularly in relation to disciplinary proceedings.

The court considered section 11C of the relevant South Australian Act, which empowers the Commissioner to cancel, suspend, or impose conditions on registration if satisfied that events have occurred such that the registered agent would not be entitled to registration if they were to apply anew. The court noted that a banning order, which suspended the applicant's ability to practice financial services, could engage section 8(1)(c) of the Mutual Recognition Act and that section 11C authorised cancellation of registration. The court found that the cancellation of the licence was a result of disciplinary proceedings, thus falling within the scope of section 33(1) of the Mutual Recognition Act. The Tribunal had previously found the licence cancellation not to be void and that reinstatement was the correct and preferable decision.

The court set aside the decision of the Business Licencing Authority and substituted it with a decision for reinstatement.

Orders

Orders of the court

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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

Section 11C provides that:11C—Commissioner may cancel, suspend or impose conditions on registration(1) If the Commissioner is satisfied that events have occurred such that a registered agent, registered sales representative, registered property manager or registered auctioneer would not be entitled to be so registered if the person were to apply for registration, the Commissioner may, by notice served on the person—(a) cancel the registration; or(b) suspend the registration for a specified period or until the fulfilment of stipulated conditions; or(c) impose conditions on the registration.(2) If the Commissioner is satisfied that the facts and circumstances that gave rise to the imposition of conditions on a registration under this section have altered, the Commissioner may, by further notice specifying the date of termination, terminate the imposition of the conditions.(3) If, during the suspension of a registration under this section, the Commissioner is satisfied that the facts and circumstances that gave rise to the suspension have altered, the Commissioner may, by further notice specifying the date of termination, terminate the suspension and restore the registration to the person (either in the form in which it existed prior to the suspension or subject to new conditions).(4) A person whose registration is cancelled, suspended or made subject to conditions under this section may seek a review by the Tribunal, under section 34 of the South Australian Civil and Administrative Tribunal Act 2013, of the decision of the Commissioner to cancel or suspend the registration or to impose the conditions.(5) Subject to subsection (7), an application for review may be made to the Tribunal within 1 month after the making of the relevant decision.(6) The Commissioner must, if so required by the person, state in writing the reasons for the Commissioner's decision.(7) If the reasons of the Commissioner are not given in writing at the time of the making of the decision and the person (within 1 month of the making of the decision) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons.(9) This section applies in relation to conduct occurring before or after the commencement of this section. The words ‘an occupation’ in s 8(1)(c) seem to extend to occupations other than those which require registration as an agent. Upon that view, a banning order having the effect of suspending the applicant’s ability to practice or carry on the occupation trade or business of providing financial services engages s 8(1)(c). In turn, s 11C, on its face, authorises cancellation of the registration of the applicant. Whether such a cancellation is properly described as a cancellation on disciplinary grounds within the meaning of s 33 of the MRA is a distinct question. It is hard to regard the banning order as other than an order in a disciplinary proceeding, so that the cancellation is on any view an order ‘as a result of … disciplinary proceedings’ within s 33(1).