JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: GRLJUSICH -v- ANDREWS [2003] WASCA 206
CORAM: MURRAY J
TEMPLEMAN J
BARKER J
HEARD: 21 FEBRUARY 2003
DELIVERED : 2 SEPTEMBER 2003
FILE NO/S: FUL 36 of 2002
BETWEEN: DUJE TOME GRLJUSICH
Appellant
AND
CHRISTOPHER ANDREWS
Respondent
Catchwords:
Appeal - Appeal by sales representative against decision of District Court dismissing appeal against the disciplinary findings and penalty imposed by Real Estate and Business Agents' Supervisory Board under Real Estate and Business Agents Act 1978 (WA) - Penalty of cancellation of sales representative's certificate of registration and permanent disqualification from registration - Nature of appeal under s 23 Real Estate and Business Agents Act 1978 (WA) - Whether Court on appeal has broad power to make disciplinary findings in substitution for those of the Board - Whether Judge erred in finding Board did not err in refusing to reopen inquiry to adduce further evidence after publishing its findings - Whether Judge erred in finding no reasonable apprehension of bias on part of Board - Whether penalty imposed by Board "manifestly excessive" - Whether appellant capable of reestablishing himself as a "fit and proper person" to hold a certificate of registration under Act
Legislation:
Real Estate and Business Agents Act 1978 (WA), s 23, s 43, s 47(1)(b), s 101, s 102(1)(b), s 103(4)
Result:
Appeal allowed in part
Penalty varied to one of disqualification for period of 5 years
Category: B
Representation:
Counsel:
Appellant: Mr M J McCusker QC & Mr S G Scott
Respondent: Ms P J Giles
Solicitors:
Appellant: Stables Scott
Respondent: Tottle Christensen
Case(s) referred to in judgment(s):
Bradshaw v Medical Board of WA (1990) 3 WAR 323
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dinsdale v The Queen (2000) 202 CLR 321
Ex parte Tziniolis; Re Medical Practitioners Act (1967) 67 SR (NSW) 448
Fox v Percy (2003) 197 ALR 201
Gallagher v The Queen (1986) 160 CLR 392
House v The King (1936) 55 CLR 499
Killick v The Queen (1981) 147 CLR 565
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Maxwell v Dixon (1965) WAR 167
Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240
Orr v Holmes (1948) 76 CLR 632
R v Chin (1985) 157 CLR 671
Smith v New South Wales Bar Association (1992) 176 CLR 256
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
The New South Wales Bar Association v Evatt (1968) 117 CLR 177
The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Vakauta v Kelly (1989) 167 CLR 568
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Case(s)…
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- AGLC
- Grljusich v Andrews [2003] WASCA 206
- Case
- [2003] WASCA 206
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this appeal were whether the Court on appeal had the broad power to make disciplinary findings in substitution for those of the Board, whether the Judge erred in finding that the Board did not err in refusing to reopen the inquiry to adduce further evidence after publishing its findings, whether the Judge erred in finding no reasonable apprehension of bias on the part of the Board, whether the penalty imposed by the Board was "manifestly excessive," and whether Grljusich was capable of re-establishing himself as a "fit and proper person" to hold a certificate of registration under the Act.
The Court, in its reasoning, clarified that the appeal under s 23 of the Act is an appeal by way of rehearing, conducted by reference to the evidence given before the Board. The Court can exercise its appellate powers only if satisfied that there was an error on the part of the Board. The Court emphasised that the nature of the appeal was to be gleaned from the relevant statutory provisions and that the appeal is by way of rehearing, falling into category (ii) as described by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd. The Court held that the District Court had correctly dismissed the appeal as there were no errors in the Board's process, no apprehension of bias, and the penalty was not manifestly excessive. Additionally, the Court found that Grljusich's prospects of re-establishing himself as a fit and proper person were uncertain.
The Court dismissed the appeal, affirming the decision of the District Court. The penalty of cancellation of Grljusich's certificate of registration and permanent disqualification from registration was upheld.
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
Established by: TEMPLEMAN J
In the appeal before this Court, counsel for the appellant and the respondent respectively agree and concede that an appeal under s 23 of the Act is an appeal by way of rehearing. Thus, it was accepted before this Court that an appeal under the Act is conducted by reference to the evidence given before the Board and that the Court entertaining the appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the Board: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 [13] and [14] per Gleeson CJ, Gaudron and Hayne JJ. That this is so has recently been restated by the High Court of Australia. In Fox v Percy (2003) 197 ALR 201, Gleeson CJ, Gummow and Kirby JJ, at [20], emphasise that:"Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word 'rehearing'. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term 'appeal', or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case." In Fox v Percy, the nature of the appeal was to be gleaned from s 75A of the Supreme Court Act1970 (NSW) which expressly provided that the appeal was by way of rehearing and declared that the Supreme Court had all the powers and duties of the Court from which the appeal was brought, (including the drawing of inferences, making findings of fact, assessment of damages and the power to receive further evidence). In that context, the joint judgment pointed out, at [22], that the "rehearing" did not involve a completely fresh hearing by the appellate court of all the evidence. Rather, the court proceeds on the basis of the record and any fresh evidence that exceptionally it admits under the statutory power so to do. Their Honours, at [23], observed:"The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record." (Citations omitted) As noted above, s 23(3) of the Act here entitles the District Court on the hearing of an appeal under the Act to either affirm, vary or quash a decision or substitute or make in addition any decision or order that "should have been made in the first instance", or remit the subject matter of the appeal to the Board for further hearing, or "make any further or other order as to costs or any other matter that the case requires". While this provision does not provide for further evidence to be adduced in an appeal, there is no particular reason to doubt that such an appeal is by way of rehearing and falls into category (ii) as described by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (supra).