Cross and Business Licencing Authority
[2021] AATA 1101
•3 May 2021
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.
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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 order under sections 920A and 920B of the Corporations Act 2001 (Cth) prohibiting the applicant from providing any financial services for four years.
The Commissioner for Consumer Affairs (South Australia) (the Commissioner), relying on the banning order, took action against the applicant in respect of his South Australian registration on 23 July 2018 and cancelled or purported to cancel the applicant’s South Australian registration. At the relevant time, the applicant had a right of appeal against that cancellation under s 11C of the Land Agents Act 1994 (SA).
The applicant explained that he did not appeal from the cancellation decision since at that time he had ceased to carry on business as a real estate agent in South Australia.
Section 33 of the MRA provides as follows:
33 Disciplinary action
(1) If a person’s registration in an occupation in a State:
(a) is cancelled or suspended; or
(b) is subject to a condition;
on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person’s registration in the equivalent occupation in another State is affected in the same way.
(2) However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances.
(3) This section extends to registration effected apart from this Act.
(4) This section has effect despite any other provisions of this Part.
On 17 October 2019 the respondent, a Victorian instrumentality, relied upon s 33(1) and cancelled the applicant’s Victorian Estate Agent’s Licence and invited the applicant to seek registration under s 33(2) if so advised. The applicant did seek reinstatement under s 33(2), and on 8 October 2020 the respondent refused to make such an order.
In these proceedings the applicant asserted not only that the correct and preferable decision ought to have been to reinstate the applicant’s registration but also asserted that the action taken by the Commissioner was void, and in consequence no cancellation occurred in that State, or so as to produce the result that the Victorian registration was cancelled.
The Tribunal invited the Commissioner to apply in writing to the Tribunal to be made a party to the proceeding under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) and, the Commissioner having done so, an order for joinder was made.
One submission of both the respondent and the Commissioner was that the consequence of s 33(1) was fixed by the statute so that there was no reviewable decision made by the respondent in proceedings on the basis that s 33 was engaged. That submission was put forward on the proper construction of s 33(1) and has the direct support of a decision of Keifel J by which the Tribunal is bound: see Schultz v Medical Board of Queensland [2001] FCA 1771. Her Honour decided that no decision was involved in the Medical Board making local registration on the same conditions as affected registration in the first State, such that the Tribunal had no power to review.
A related question is whether purported but invalid action taken by a State to cancel a person’s registration in that state has the effect of engaging s 33(1) or s 33(2) of the MRA.
If as a result of a view being taken (for example by a court) that the Commissioner was without power to cancel the applicant’s registration, and s 33(2) of the MRA was not engaged, then the respondent could neither accede to nor refuse an application for reinstatement, and the Tribunal on review would be in no different position.
Mr G R McCormick of counsel, who appeared for the applicant submitted that ss 11C and 8(1)(c) of the Land Agents Act1994 (SA) did not authorise the cancellation of the applicant’s registration in South Australia. That was said to be so because of principles established in Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 372 ALR 1.
Secondly, he submitted that the provisions of s 8(1)(c) were not engaged by ASIC’s banning order.
In my opinion, the High Court did not in Andriotis lay down any principles which established limits to disciplinary action which may be taken by States consistently with the MRA. The facts did not produce any need to do so and the issues debated did not put any such question in play.
Section 8(1) of the Land Agents Act1994 (SA) provides as follows:
8—Entitlement to be registered as agent
(1) A natural person is entitled to be registered as an agent if the person—
(a) has—
(i) the qualifications required by regulation; or
(ii) subject to the regulations, the qualifications that the Commissioner considers appropriate; and
(b) has not—
(i) been convicted of an indictable offence of dishonesty; or
(ii) during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and
(c) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(d) is not an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; and
(e) has not, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors—
(i) when the body was being so wound up; or
(ii) within the period of six months preceding the commencement of the winding up; and
(f) is a fit and proper person to be registered as an agent.
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).
For those reasons I reject the applicant’s submissions as to the invalidity of the South Australian cancellation.
The Victorian legislation has no provision permitting cancellation on the wide grounds specified in s 8(1)(c) of the South Australian Act, and that consideration is relevant to whether the respondent might consider it appropriate to reinstate under s 33(2) of the MRA. I turn to that aspect of this review.
For the respondent it is submitted that the applicant ought to have informed the respondent of the making of the banning order and the South Australian cancellation at the times of the renewal of his registration. The respondent knew of both facts when it invited the applicant to make representations about reinstatement. The cross-examination of the applicant was to the effect that in April 2019 the applicant did not inform the respondent of the banning order or of the 25 July 2018 decision of the South Australian Commissioner. In chief the applicant said in effect that the failures were not deliberate. He said in cross-examination that he did not himself know of the South Australian action until he was told of it by the respondent. He said that he was rarely in the office and that it was not drawn to his attention. He also seemed to remember that he was told that the South Australian registration had expired rather than being cancelled.
It follows from the applicant’s evidence in cross-examination that his written representations in Victoria were wrong. The fact that they were wrong does not entail that he knew they were wrong when he made them. I am reluctant to make such a finding, especially since that matter was not specifically put to him. On the other hand, the making of incorrect reports suggests that the applicant is not a reliable reporter.
I do not think it desirable to make findings in what I referred to in argument as a shadow case involving his disclosures to the NSW authorities. New South Wales is not a party and no evidence was called from its regulatory body. What, if anything, it knew of the orders of Sackville AJA or the banning order is not the subject of evidence. The orders of Sackville AJA were apparently the subject of media reports according to the applicant’s affidavit evidence.
The main case made by the applicant, and one upon which he was not cross-examined, was that since the judgment of Sackville AJA he has altered the conduct of his business so as to avoid any conduct which his Honour treated as contravening conduct. That seems to me to be of real importance to the reinstatement issue. I am prepared to accept the applicant’s evidence of the changes to his method of carrying on business, changes which he effected after obtaining competent advice.
I asked the parties to consider appropriate terms if the Tribunal decided that the correct or preferable decision was to substitute a reinstatement order. After the hearing I was provided with a form of conditions proposed by the respondent, and suggested alterations proposed by the applicant.
The conditions require the applicant not to provide financial services without holding an AFSL within the meaning of s 911A(1) of the Corporations Act 2001 (Cth), not to be in effective control of the real estate business of a corporation conducting a real estate business (in Victoria), not to be involved in the day to day management of an estate agency business in Victoria, and, in effect not to act as a real estate agent as a sole trader, and otherwise than as an employee or agent of the holder of a estate agent’s licence in Victoria. The proposed conditions also require him to undertake within 12 months of the reinstatement order at least 12 continuing professional development courses administered by the Real Estate Institute of Victoria and provide to the respondent within 7 days of the completion of those courses evidence of his completion of them.
I am content with the conditions proposed, as amended by the applicant. I would add one further condition, that in any renewal application in Victoria, the applicant obtain competent legal assistance to ensure that any disclosure made is accurate.
Because the circumstances which led to the cancellation of his registration in South Australia would not have led to cancellation in Victoria, and because he has ensured that no financial services will be supplied by him without holding an AFSL, and in the light of the terms of the proposed conditions, I am satisfied that the correct or preferable decision is to reinstate the registration of the applicant, with the conditions mentioned in the previous paragraph. The reviewable decision will be set aside and substituted accordingly.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 3 May 2021
Date(s) of hearing: 15 and 16 March 2021 Date final submissions received: 7 April 2021 Counsel for the Applicant: Mr G McCormick Solicitors for the Applicant: Mr G Goldsmith, Goldsmith Lawyers Counsel for the Respondent: Ms A Mapp Solicitors for the Respondent: Mr B Hayes, Department of Justice and Community Safety Solicitors for the Joined Party: Ms V Montandon, Crown Solicitors Office
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