EVANS and SETTLEMENT AGENTS SUPERVISORY BOARD - [2008] WASAT 121

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SETTLEMENT AGENTS ACT 1981 (WA)

CITATION: EVANS and SETTLEMENT AGENTS SUPERVISORY BOARD [2008] WASAT 121

MEMBER: JUSTICE M L BARKER (PRESIDENT)
MR R LEDGER (SENIOR SESSIONAL MEMBER)
MS J TOOMER (SESSIONAL MEMBER)

HEARD: 14 MAY 2008

DELIVERED : 28 MAY 2008

FILE NO/S: VR 73 of 2008

BETWEEN: DAVID GLYNDWR EVANS
Applicant
AND
SETTLEMENT AGENTS SUPERVISORY BOARD
Respondent

Catchwords:

Vocational regulation - Settlement agents - Renewal of triennial certificate - Power to conduct inquiry - Consideration of factors governing initial grant of license in s 27(1)

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 27, s 28, s 29, s 30, s 31
Real Estate and Business Agents Amendment Act 1998 (WA), s 10
Settlement Agents Act 1981 (WA), s 25 , s 26, s 27, s 29, s 30, s 31, s 31A, s 32, s 33, s 34, s 34A, s 83, s 84, s 85, s 114, Pt III, Pt IV, Schedule 1
State Administrative Tribunal Act 2004 (WA), s 29, s 87

Result:

Application allowed
Decision refusing renewal of triennial certificate set aside
Board to grant triennial certificate

Category: A

Representation:

Counsel:

Applicant: Ms CH Thompson
Respondent: Mr S O'Sullivan

Solicitors:

Applicant: Nielsen and Co
Respondent: Settlement Agents Supervisory Board

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In September 2006 the applicant settlement agent lodged an application for renewal of his triennial certificate. In December 2006 the Settlement Agents Supervisory Board conducted a hearing to inquire whether the applicant satisfied the licensing requirements of s 27(1) of the Settlement Agents Act 1981 (WA). In February 2008 the Board refused the certificate renewal application.
The Tribunal found that the Board was not entitled to consider whether or not a triennial certificate should be renewed having regard to whether an applicant can satisfy the factors in s 27(1) that governed the initial grant of a licence. The applicant, having lodged his signed application and paid the prescribed fee, was entitled to have his triennial certificate renewed.

Issue

The primary issue for determination in this proceeding is whether the Settlement Agents Supervisory Board (Board) has the power under s 31 of the Settlement Agents Act 1981 (WA) (SA Act) to refuse the renewal of a triennial certificate to a person who holds a real estate settlement agent's licence under the SA Act, by reference to any of the factors specified in s 27(1) of the SA Act that govern the grant of a real estate settlement agent's licence.

Facts

The following facts are not disputed by the parties.
On or about 22 September 2006, the Board received from David Glyndwr Evans, the applicant, an application for renewal of his triennial certificate issued under the SA Act, together with supporting documentation and the appropriate fee.
The applicant was, at the date of receipt of the application, a licensed real estate settlement agent whose then current triennial certificate expired on 31 October 2006.
Further information was required from the applicant and this was provided to the Board.
Information provided included a statutory declaration made by the applicant on 25 September 2006.
The registrar under the SA Act referred the application to the Board for decision and gave notice of such referral to the applicant on 13 November 2006.
The notice given to the applicant advised that the Board would determine if it would approve the requested renewal of the applicant's triennial certificate and whether the applicant was qualified to be granted such renewal having regard to the provided information and any other evidence adduced at a hearing, a date for which was set at 6 December 2006.
On 6 December 2006, a formal hearing took place before the Board, constituted by Mr David Taylor (Chairman), Ms Valerie Haskins (Member) and Mr Brian Darling (Deputy Member). The Chairman is a legal practitioner; the Member is an elected licensed settlement agent; and the Deputy Member is a person experienced in commercial practice.
During the hearing before the Board on 6 December 2006, the applicant, who was self-represented, gave evidence and was questioned by counsel assisting the Board, as well as by the Board members.
At the commencement of the hearing the applicant was informed by counsel assisting that the registrar had intervened in the application in order that the applicant could satisfy the Board that for the past two years he had sufficient practical experience in arranging and effecting settlements of real estate transactions to enable him to carry on the business of a real estate settlement agent satisfactorily.
The proceedings which followed constituted an attempt by the Board to have the applicant satisfy the Board that he was complying with the requirements of subsection 27(1) of the SA Act; particularly that he was a person of good character and repute and a fit and proper person to hold a real estate settlement agent's licence.
There was no issue as to good character and repute. The main issue involved the applicant's current competence to act as a licensed real estate settlement agent.
At the completion of the hearing on 6 December 2006, the Board reserved its decision. By majority decision of Member Haskins and Deputy Member Darling dated 27 February 2008 - more than 14 months after the hearing on 6 December 2006 - the application for renewal of the triennial certificate was refused by the Board. The Chairman dissented from the majority in reasons dated 28 February 2008.
The majority decision to refuse to renew the triennial certificate is the subject of the present application for review before the Tribunal.

Contentions of the Board

The Board contends that its power to grant triennial certificates and renewals includes a power to refuse.
The Board contends that the effect of s 27(1) of the SA Act is that a person may only hold a licence whilst the Board remains satisfied that the person continues to meet the criteria set out in that subsection and Schedule 1 of the SA Act. The Board contends that as at the date of the proceedings before the Board the applicant did not satisfy the Board, particularly as to his competency and understanding of the duties and obligations imposed on settlement agents by the SA Act.
The Board contends that no triennial certificate having been renewed within 12 months of expiry and no holding fee paid within 60 days from 31 October 2006, the applicant is unlicensed and a triennial certificate cannot now be issued to him.
The Board contends that under s 30(4) of the SA Act the applicant is under a legal obligation to surrender his licence and there is no remedy within the jurisdiction of the Tribunal which can alter that position.
The Board contends that there is no denial of natural justice/procedural fairness to the applicant.
The Board contends the application for review should now be dismissed, the Board's decision affirmed and the applicant ordered to pay the Board's cost for these proceedings in the Tribunal.
In advancing these contentions, the Board indicates also that the practice it adopted in relation to the applicant's triennial certificate renewal application reflects the policy it has followed for some years.

Contentions of the applicant

The applicant contends that once a person satisfies the Board of the requirements set out in the SA Act the licence continues in operation under s 30(1). It may not be suspended or revoked by the Board but may only be suspended or revoked either by the Tribunal in accordance with certain specific powers provided to it or by operation of law - for example, under s 30(3a) or s 85 of the SA Act.
The applicant says that having satisfied the Board in 1982 that he met the criteria under s 27 of the SA Act, he holds a licence until it is revoked or suspended either by operation of law or by the Tribunal.
The applicant says the second tier of regulation is the grant of a triennial certificate pursuant to s 31 of the SA Act. The certificate is to be renewed in accordance with the SA Act as set out in s 31, s 32, s 33, s 34 and s 34A.
Pursuant to s 34A, in the usual course, in renewing a triennial certificate the registrar acts as if he or she were the Board and satisfies him or herself that the requirements of s 31(2) have been complied with and issues a triennial certificate.
Only if circumstances mentioned in s 34A(1) of the SA Act are not present is a matter considered by the Board. The applicant says in this case s 34A(1) did apply and so the matter did not need to go to the Board.
The applicant says any discretion in respect of refusal to renew a triennial certificate is limited to meeting prescribed educational requirements: s 31(2a) - which is not presently relevant as there are no such requirements. The only other factor is the imposition of special conditions or the change in special conditions: s 34A(1) SA Act. Thus, upon renewal of a triennial certificate the Board may consider imposing a special condition and it may hold a proceeding to determine that issue. However, the applicant says if the Board is not considering the imposition of special conditions on a triennial certificate it does not have a general inquiry power in respect of renewals and so cannot institute a proceeding before it.
The applicant contends there is neither a requirement nor discretion to consider matters under s 27 of the SA Act in the context of a renewal of a triennial certificate.
The applicant also says that it is noteworthy that s 25 of the SA Act provides that objections may be made by any person in respect to applications for licenses, but no similar provision exists in respect to triennial certificates. That being so, the proper course for the Board to follow would be to commence disciplinary action, if it holds concerns that an applicant is not a fit and proper person any longer; or alternatively, to impose conditions. The applicant notes s 84(2)(d) of the SA Act which, when read with s 84(1), provides that the Tribunal has certain powers if it is of the opinion that the settlement agent is unfit to hold a licence. The applicant says this is the correlative power to s 27(1)(b).
The applicant says that, if the Tribunal accepts its contentions, it should determine pursuant to s 29 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to grant the triennial certificate with effect from 1 November 2006.
The applicant says that the Board's proposition that the applicant is no longer licensed and unable to hold a triennial certificate by reason of s 30(3a) of the SA Act is wrong. The only reason the situation exists is through the Board's own mistake and conduct in delaying its renewal decision.
Alternatively, the applicant says that if necessary the applicant can pay the holding fee, in which case, given the conduct of the respondent in making an ultra vires decision and in delaying its determination, "special circumstances exist" so that the fee should be immediately refunded to the applicant pursuant to s 114 of the SA Act.
The applicant also says if he succeeds he should have an order for his costs of the proceedings.

The Tribunal's finding

The Tribunal agrees with the applicant's primary contention that he was entitled to have his triennial certificate renewed in the ordinary course of events when he sought renewal in late 2006 and that the Board was not entitled, in the circumstances, to undertake the inquiry that it undertook or to refuse to renew the triennial certificate of the applicant on the grounds that the majority of the Board purported to justify that decision.
While the Board says it has been following the same policy in respect of the renewal of triennial certificates for some years, the Tribunal considers the policy or practice is not supported by the SA Act.
Part III of the SA Act deals with licensing. By s 26 of the SA Act settlement agents must be licensed, whether as a real estate settlement agent or a business settlement agent. It is an offence to carry on business as such unless a person is licensed under the Act and holds a current triennial certificate in respect of the licence.
A distinction is thus drawn between a licence, on the one hand, and a triennial certificate on the other.
Section 27 of the SA Act governs the grant of a licence to a natural person in the following terms:
"(1)Subject to this Act, a person, not being a body corporate, who applies to the Board for a real estate settlement agent’s licence or a business settlement agent’s licence, or both, and pays to the Board the prescribed fee for the licence shall be granted and may hold a licence if the Board is satisfied that -
(a)he is of or over the age of 18 years;
(b)he is a person of good character and repute and a fit and proper person to hold a licence;
(c)he has sufficient material and financial resources available to him to enable him to comply with the requirements of this Act;
(d)he is ordinarily resident in the State; and
(e)he understands fully the duties and obligations imposed by this Act on settlement agents.
(2)In subsection (1)(b) “fit and proper” includes being qualified in accordance with Schedule 1 to this Act subject to the savings and exceptions provided therein and elsewhere in this Act, but nothing in that Schedule shall derogate from the discretion conferred on the Board by subsection (1) in the granting of a licence."
Section 28 and s 29 respectively cover the grant of a licence to a firm and a body corporate.
Section 30(1) provides that, subject to the SA Act, a licence is continuous. That is to say, the licence does not have to be periodically renewed.
However, s 30(2) of the SA Act makes it clear that a licence as a real estate settlement agent does not confer on a licensee the right to carry on business as a real estate settlement agent unless he holds a current triennial certificate in respect of the licence.
Section 30(3a) provides that a licensee ceases to be licensed if the licensee:
"(a)does not hold a current triennial certificate in respect of the licence; and
(b)does not pay to the Board in accordance with the regulations the fee prescribed for the purposes of this subsection."
Section 30(4) of the SA Act provides that a person may at any time "surrender a licence, and any triennial certificate in respect thereof, held by him and shall do so if he ceases to have the qualifications for holding the licence".
Section 31 governs the grant and renewal of a triennial certificate in the following terms:
"(1)Subject to this Act, the Board shall on the grant of -
(a)a real estate settlement agent’s licence, grant the licensee a certificate which confers on the licensee the right to carry on business as a real estate settlement agent; or
(b)a business settlement agent’s licence, grant the licensee a certificate which confers on the licensee the right to carry on business as a business settlement agent,
for the period of 3 years commencing on the date on which it is granted.
(2)Subject to this Act, a triennial certificate may be renewed for subsequent periods of 3 years each by payment of the prescribed fee, and delivery to the Board of an application signed -
(a)by the licensee, if the licensee is a person other than a firm or a body corporate; or
(b)by the person in bona fide control of the business of the licensee, if the licensee is a firm or body corporate.
(2a)The Board may refuse to renew a triennial certificate if the licensee has not met prescribed educational requirements.
(3)At all times during the currency of the triennial certificate -
(a)if the licensee is a person other than a firm or body corporate, that person; or
(b)if the licensee is a firm or body corporate, the person in bona fide control of the business of the licensee,
shall remain ordinarily resident in the State."
Accordingly, when a person is granted a real estate settlement agent's licence under s 27 (in the case of a natural person - as in the applicant's case) the Board is obliged under s 31(1) also to grant that person (the licensee) a triennial certificate which confers on the licensee the right to carry on the business of a real estate settlement agent, commencing on the date on which the licence is granted.
The effect therefore of s 30(2), s 30(3a) and s 31(1) is that the licence and the triennial certificate are separate and distinct authorisations and both are required to carry on the settlement agent's business.
Section 32(2) makes it clear that a triennial certificate "may be renewed for subsequent periods of 3 years each" by payment of the prescribed fee and the delivery to the Board of an application signed by the licensee if the licensee is a natural person.
Section 31(2a), however, expressly empowers the Board to refuse to renew a triennial certificate if the licensee has not met prescribed educational requirements.
On the face of it, nothing else in s 31 expressly empowers the Board to refuse to renew a triennial certificate if the renewal application has been delivered to the Board and signed by the natural person and the prescribed fee has been paid.
Section 32(1) of the SA Act provides periods of grace for the renewal of the triennial certificate if lodged late, but within one month of the expiration date.
Section 32(2) provides for applications for renewal of triennial certificates in certain other cases where lodged late beyond one month and less than 12 months.
Section 33 provides for applications for renewal of triennial certificates more than 12 months after expiry.
Section 34 of the SA Act deals with conditions on licences and triennial certificates, in the following terms:
"(1)A licensee shall comply with the provisions of this Act and the settlement agents’ code of conduct.
(2)The Board may grant a licence or grant or renew a triennial certificate subject to such special conditions as it thinks fit, and without limiting the generality of the foregoing any of those conditions may -
(a)relate to the holding of a policy of indemnity insurance or fidelity insurance in a specified amount; or
(b)relate to the payment of fees under this Act or to contributions to the Account and may vary such prescribed fees or contributions.
(3)A licensee shall comply with any special condition to which under subsection (2) his licence or triennial certificate is subject."
Section 34(2) therefore expressly empowers the Board to renew a triennial certificate subject to such "special conditions" as it "thinks fit".
However, nothing in s 34 entitles the Board to refuse to renew a triennial certificate.
Section 34A of the SA Act deals with "unopposed applications" in the following terms:
"(1)Subject to this Part, a licence may be granted and a triennial certificate may be granted or renewed, (as long as there is no objection in respect of a licence and special conditions are not imposed or changed) by -
(a)the Board, in a meeting at any time and place; or
(b)the Registrar, at any time or place,
without notice to the applicant, and the performance of a function by the Registrar under this subsection is to be treated as performance by the Board.
(2)Where the Board or Registrar performs a function under subsection (1), the Registrar shall forthwith deliver the licence or triennial certificate or the renewed triennial certificate, as the case may be, to the applicant.
(3)Sections 27, 28, and 29 apply to the Registrar in the performance of a function under subsection (1) as if a reference in any of those provisions to the Board being satisfied as to a matter were a reference to the Registrar being satisfied as to the matter."
The effect of s 34A(1) in relation to the renewal of the triennial certificate is that the certificate may be renewed as long as special conditions are not imposed or changed by the Board or the registrar without notice to the applicant, and the performance of a function by the registrar is treated as performance by the Board. Ordinarily, then, one would expect the registrar to deal with an unopposed application in the interests of administrative efficiency.

The notion of an unopposed application, however, does not mean that there can be an opposed application in respect of the renewal of a triennial certificate. The words of subsection (1) "as long as there is no objection in respect of a licence and special conditions are not imposed or changed" refer to where there is an objection in respect of a licence under s 25 of the SA Act - that is to say, an application for a licence in the first instance, not the renewal of a triennial certificate.
Nothing in s 34A authorises the Board to refuse to renew a triennial certificate on or by reference to any of the factors mentioned in s 27 that govern the grant of an initial licence. All that s 34A(1) does in respect of the renewal of a triennial certificate is to ensure that notice is given to an applicant where it is proposed to impose special conditions or to change special conditions on a triennial certificate.
In other words, s 34A(1) ensures that if there is to be any change to the conditions of the triennial certificate at the time renewal is applied for by an applicant, the applicant must be given notice of that proposal. Natural justice or due process must then be afforded to the applicant before such conditions are imposed.
While s 34A(3) provides that "Sections 27, 28 and 29 apply to the Registrar in the performance of a function under subsection (1) as if a reference in any of those provisions to the Board being satisfied as to a matter were a reference to the Registrar being satisfied as to the matter", the Tribunal considers that, properly interpreted in the context of the SA Act and s 34A, this is designed to ensure that where the registrar is proceeding to act in the place of the Board to grant a licence then the registrar must be satisfied, as the Board must be satisfied, in respect of the factors there set out. Section 34A(3) does not say that the Board or the registrar can regard the s 27 factors in deciding whether a triennial certificate should be renewed.
To reiterate the point, s 34A(3) is included in the SA Act to ensure that if the registrar acts in place of the Board in granting a licence then the registrar is similarly governed by s 27, s 28 and s 29. In context and as a matter of proper interpretation, s 27, s 28 and s 29 have no relevance to the renewal of a triennial certificate and do not support an interpretation that, by implication, the Board has the power to review the s 27 standing of a licensee at the time the licensee lodges the necessary application for renewal of a triennial certificate.
Nothing else in Pt III of the SA Act deals expressly with the renewal of a triennial certificate.
Part IV of the SA Act deals with controls. Part IV Div 3 deals with discipline. Section 83 enables the Board to make an allegation to the Tribunal it there is a "proper cause for disciplinary action" as mentioned in s 84(2). Section 84(2) of the SA Act provides:
"(2)There shall be proper cause for disciplinary action if -
(a)the State Administrative Tribunal is satisfied that the settlement agent improperly obtained a licence or triennial certificate;
(b)the settlement agent, or any person acting with the authority or upon the instructions of the settlement agent has, in the course of any dealings with a party, or a prospective party, to a transaction, been guilty of conduct that constitutes a breach of any law other than this Act and that prejudices or may prejudice any rights or interests of the party, or prospective party, to the transaction;
(c)the settlement agent is acting or has acted in breach of -
(i)a special condition of his licence or triennial certificate;
(ii)the requirements of this Act; or
(iii)the settlement agents’ code of conduct;
or
(d)any other cause exists that, in the opinion of the State Administrative Tribunal renders the settlement agent unfit to hold a licence."
It is important to note the catch-all ground for disciplinary action mentioned in s 84(2)(d) - "any other cause exists that, in the opinion of the State Administrative Tribunal renders the settlement agent unfit to hold a licence".
Section 84(1)(c) expressly empowers the Tribunal, if it is satisfied that a proper cause exists for disciplinary action, to, amongst other things, cancel a triennial certificate.
By s 84(3) of the SA Act when the Tribunal suspends or cancels a licence or triennial certificate, or both, the licence or triennial certificate as the case requires must immediately be delivered to the registrar by the settlement agent.
It should also be noted that s 85 of the SA Act provides for the automatic cancellation of a licence and a triennial certificate if a licensee is convicted of certain offences.
Having regard to this statutory licensing and certificate scheme created by the SA Act, the Tribunal considers that the Board may only refuse to renew a triennial certificate:
•If the licensee has not delivered to the Board an application signed (a) by the licensee in the case that the licensee is a person other than a firm or body corporate, or (b) by the person in bona fide control of the business or the licensee in those other cases;
•The applicant has not paid the prescribed fee; or
•The licensee has not met prescribed educational requirements.
In this present case, the evidence is clear that:
•The licensee duly paid the prescribed fee;
•The licensee delivered to the Board the appropriately signed application; and
•There were not any prescribed educational requirements in place at material times.
While the Board considers that the system of regulation in respect of settlement agents that it helps to administer under the SA Act would be deficient or diminished if it does not have the power effectively to review the standing of a settlement agent from time to time when applications are made to renew triennial certificates, the Tribunal considers that nothing in s 31, or the SA Act generally, supports a finding that the Board has the power to consider whether or not a triennial certificate should be renewed having regard to whether or not the applicant is presently able to satisfy the Board that he or she meets any or all of the factors set out in s 27(1) that govern the initial grant of a licence.
As noted above, the express words of s 31(2a) do not support such a power.
Nor does the power of the Board to renew a triennial certificate subject to special conditions under s 34 of the SA Act authorise the Board to refuse the renewal of a triennial certificate.
In these circumstances, the Tribunal is satisfied that the Board should not have proceeded to set up and conduct an inquiry into the application of the applicant for renewal of his triennial certificate, as it did on 6 December 2006. The applicant was entitled, given that he had paid the prescribed fee and lodged his signed application, to have his triennial certificate renewed.
If the Board considers a person is no longer fit to hold a licence and thus a triennial certificate, it should commence disciplinary proceedings against a licensee under Part IV, Div 3 of the SA Act.
The Tribunal should add that the view it has formed in this regard is fortified by the provisions of the Real Estate and Business Agents Act 1978 (WA) (REBA Act). The Tribunal in particular draws attention to s 31(3) of the REBA Act which counsel for the Board properly drew to the attention of the Tribunal during oral argument.
The REBA Act in many respects contains identical or similar terms to the SA Act. The SA Act was first enacted three years after the REBA Act. Amendments subsequently made to the two acts have much in common. Each Act establishes a licensing and certificate system that depends upon the grant of an initial licence that "is continuous" (see s 30(1) of the REBA Act). Each provides for a natural person, firm or body corporate to be granted a licence and specifies in identical terms the relevant factors to be satisfied (s 27, s 28 and s 29 of the REBA Act). Each provides that a licence does not confer on a licensee the right to carry on business unless an agent holds a current triennial certificate in respect of the license (s 30(2) of the REBA Act). Each provides for the relevant Board to grant a triennial certificate on the grant of a licence (s 31(1) of the REBA Act).
The REBA Act by s 31(2) deals with a renewal of a triennial certificate in the following terms:
"2)Subject to this Act, a triennial certificate may be renewed for subsequent periods of 3 years each by payment of the prescribed fee and delivery to the Board of an application signed -
(a)by the licensee, if the licensee is a person other than a body corporate; or
(b)by the person in bona fide control of the business of the licensee, if the licensee is a firm or a body corporate."
It will be noticed that this is in nearly identical terms to s 31(2) of the SA Act.
It will also be noticed, however, that there is an important difference in the wording of s 31(3) of the REBA Act and the similar s 31(2a) of the SA Act. Whereas s 31(2a) of the SA Act provides:
"The Board may refuse to renew a triennial certificate if the licensee has not met prescribed educational requirements";
s 31(3) of the REBA Act provides:
"The Board may refuse to renew a licensee’s triennial certificate if -
(a)the Board is satisfied that section 27(1)(b), (c) or (d), section 28(a), (b), (c) or (d) or section 29(a), (b), (c) or (d), as is relevant to the licensee, does not apply, or no longer applies, in relation to the licensee; or
(b)the licensee has not met prescribed educational requirements."
It will be noticed that the significant difference between s 31(2a) of the SA Act and s 31(3) of the REBA Act is the inclusion of s 31(3)(a) of the REBA Act.
In other words, Parliament has expressly authorised the REBA Board to refuse a licensee's triennial certificate if the Board is satisfied that certain matters specified in s 27(1), s 28 and s 29 going to the fitness or qualifications of a licensee do not apply or no longer apply in relation to a licensee.
As noted, s 27, s 28 and s 29 of the REBA Act are either identical with or very similar to s 27, s 28 and s 29 of the SA Act. The result is that, in material respects, under the REBA Act Parliament has expressly authorised the relevant Board to refuse to renew a licensee's triennial certificate in the case of a licence granted to a natural person, if the following considerations do not apply or no longer apply in relation to a licensee:
•The person is of good character and repute and a fit and proper person to hold a licence (s 27(1)(b) of both REBA Act and SA Act);
•The person has sufficient material and financial resources available to him to enable him to comply with the requirements of the Act (s 27(1)(c) of both the REBA Act and the SA Act);
•The person understands fully the duties and obligations imposed by the Act on agents (s 27(1)(e) of both the REBA Act and the SA Act).
The inclusion of the express power of the Board to refuse a licensee's triennial certificate under the REBA Act in these terms, given the very close regulatory schemes created by the REBA Act and the SA Act, serves to confirm the Tribunal's view that, without such express parliamentary authorisation to refuse a triennial certificate in such circumstances, the relevant Board would not have that power on the proper interpretation of the SA Act.
Section 31(3) of the REBA Act was inserted into the REBA Act by s 10 of the Real Estate and Business Agents Amendment Act 1998 (WA). At the time this amendment to the REBA Act was introduced, there was no explanatory memorandum accompanying the amendment. However, the second reading speech of the Minister for Fair Trading, Mr Shave, on moving the amendment for a second time notes that:
"Legal opinion has brought into question the power of the board to refuse the renewal of a triennial certificate or a registration, when the holder of the certificate or registration is no longer fit and proper. Accordingly, an amendment to make it clear that the board has this power is included. It is already current practice for the board and the registrar to issue or renew licences, triennial certificates or registrations without a formal proceeding when there is no contention. The Bill formalises this practice": Western Australia Parliamentary Debate, Legislative Assembly, 19 May 1998 (D Shave, Minister for Fair Trading)
As noted above, in this case, if the Board were concerned that the applicant were no longer a person who was fit to hold a licence under the SA Act, then it should have applied to the Tribunal under Div 3 of Pt IV of the SA Act for an order that there is proper cause for disciplinary action because the settlement agent is unfit to hold a licence, citing relevant particulars.
It would then be for the Tribunal to decide whether or not there is a proper cause for disciplinary action and, if necessary, to exercise the express powers given to the Tribunal under s 84(1) to cancel a licence and any triennial certificate in respect thereof.
The contrary approach taken by the Board in this case subverts the system of regulation created by the SA Act. The system of regulation is that the Tribunal has the express powers to cancel licenses and triennial certificates. The role of the Board is to bring applications for such orders to the Tribunal. The Board also has the initial power to licence a person. Once licensed the Board does not have the power to withdraw the licence or to effectively withdraw a licence by refusing an application for renewal of a triennial certificate.
If the Board considers that, consistent with the policy approach it has adopted over a number of years, it should have the power to refuse a triennial certificate on the grounds contended for then it should seek an amendment to the SA Act.

Costs

The applicant contends that if the Tribunal upholds his review application against the Board's decision, he should also have an order that the Board pay his costs of the proceedings.
From the applicant's point of view the order for costs should be made because, in essence, the Board has misconstrued its statutory powers.
From the Board's perspective, if it is found to be lacking in power, it says that it acted in good faith and in pursuance of a policy concerning the renewal of triennial certificates that is understood in the industry and that it has applied for some years without apparent contention.
The Tribunal's powers in respect of costs orders is well understood and need not be repeated in any great detail here. The starting point is that the Tribunal is a costs neutral jurisdiction: see s 87(1) SAT Act. However, the Tribunal does have discretion to award costs: s 87(2).
So far as review proceedings are concerned, s 87(4) of the SAT Act identifies a number of relevant considerations where a proceeding is within the Tribunal's review jurisdiction:
"Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to -
(a)whether the party (in bringing or conducting the proceeding before the decision‑maker in which the decision under review was made) genuinely attempted to enable and assist the decision‑maker to make a decision on its merits;
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits."
The primary issue therefore identified as relevant to a costs application in proceedings like the present, is whether the Board "genuinely attempted to make a decision on its merits".
In the event the Tribunal is not satisfied that the Board did not genuinely attempt to make a decision on its merits. What has happened here is that the Board has misunderstood its statutory powers. It seems to have held a certain view about its powers to conduct an inquiry in relation to the renewal of a triennial certificate and to refuse to grant a renewal if it is not satisfied about the fitness or competence of the holder of a licence. The Board has apparently held this view for some time and has made its view known to the industry as a whole.
This case appears to have been the first formal occasion on which the Board's understanding concerning its power to refuse a triennial certificate has been tested, whether before the establishment of this Tribunal or since.
In all of those circumstances, while the Tribunal recognises that the applicant has been put to trouble and expense to have the Board's decision reviewed, the Tribunal does not consider that this is an appropriate case in which to make an award of costs against the Board.
There are no other grounds which, in the opinion of the Tribunal, enliven the discretion to make an order for costs.
For those reasons the Tribunal will order that there be no order as to costs.

Conclusion and Order

In these circumstances the Tribunal would exercise it powers under s 29 of the SAT Act and order as follows:
(1)The review application is allowed.
(2)The decision of the Settlement Agents Supervisory Board refusing to renew the triennial certificate of the applicant, David Glyndwr Evans, which decision was made on or about 27 February 2008, is set aside.
(3)The Board is to grant the applicant the triennial certificate the subject of his application received by the Board on or about 22 September 2006 effective for a three year period commencing 1 November 2006.
(4)No order as to costs.
The submission of the Board that because, at the time of the Tribunal hearing of this review application, the triennial certificate of the applicant had been expired for more than 12 months means a certificate cannot be now issued, is not accepted. The Tribunal's decision is a substitute decision for that made by the Board. The date the renewed triennial certificate takes effect, pursuant to s 29(8)(g) of the SAT Act is 1 November 2006.

I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT