King v Commissioner for Consumer Protection - [2018] WASCA 194

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KING -v- COMMISSIONER FOR CONSUMER PROTECTION [2018] WASCA 194
CORAM:   MURPHY JA
MITCHELL JA
PRITCHARD JA

HEARD:   16 MAY 2018
DELIVERED          :   31 OCTOBER 2018
FILE NO/S:   CACV 114 of 2016
BETWEEN:   PAUL ANTHONY KING
Appellant

AND

COMMISSIONER FOR CONSUMER PROTECTION
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUSTICE J C CURTHOYS (PRESIDENT)
MS D QUINLAN (MEMBER)
MR R ADAMS (SESSIONAL MEMBER)

Citation: COMMISSIONER FOR CONSUMER PROTECTION and THE KING AND I PTY LTD (ACN 060968809) [2016] WASAT 125
File Number : VR 125 of 2014, VR 112 of 2014

Catchwords:

Real estate and business agents – Appeal against finding of proper cause for disciplinary action – Whether error of law in finding proper cause for disciplinary action – Where finding based on inferences – Whether the tribunal felt an actual persuasion that the evidence supported an inference

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 103
State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(13)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr G M Abbott
Respondent	:	Mr J L Derby

Solicitors:

Appellant	:	Williams & Hughes
Respondent	:	Legal Services, Consumer Protection Division, Department of Mines, Industry Regulation and Safety

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

Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Briginshaw v Briginshaw (1938) 60 CLR 336
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Chin v Legal Practice Board Western Australia [2009] WASCA 117
E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15; (2010) 241 CLR 144
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45
Luxton v Vines (1952) 85 CLR 352
Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Hillier [2007] HCA 13; (2007) 228 CLR 618

JUDGMENT OF THE COURT:

This appeal arises from disciplinary proceedings brought in the State Administrative Tribunal by the Commissioner for Consumer Protection (Commissioner) against The King and I Pty Ltd (TKAI), Mr Colin King and the appellant (together, the King parties) pursuant to the Real Estate and Business Agents Act 1978 (WA) (REBA Act). Those proceedings arose from the circumstances surrounding the purchase and on-sale of six properties (referred to herein individually as Property 1, 2, 3, 4, 5 or 6[1] respectively, and collectively as the Properties).
[1] Property 1 was located at Lot 5 Henry Road, Greenough. Property 2 was located…

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: [2018] WASCA 194
Decision Date: 31 OCTOBER 2018

CaseChat Overview and Summary

The case involved an appeal by the first respondent against a decision of a tribunal, which found that the first respondent had proper cause to be disciplined. The appeal was based on the assertion that the tribunal had erred in finding proper cause for disciplinary action. The decision was made by the Supreme Court of New South Wales. The appellant, the Commissioner for Consumer Protection, sought to uphold the tribunal's finding that there was proper cause for disciplinary action against the first respondent, a licensed real estate agent.

The legal issues at the heart of this appeal revolved around the interpretation of the evidence presented to the tribunal and the tribunal's authority to draw inferences from that evidence. Specifically, the court was tasked with determining whether the tribunal erred in law by finding proper cause for disciplinary action, based on inferences drawn from the evidence. The central question was whether the tribunal felt an actual persuasion that the evidence supported an inference of improper conduct on the part of the first respondent.

The court examined the reasoning of the tribunal and found that the tribunal had indeed considered the evidence and the inferences drawn from it. The court determined that the tribunal's decision was not affected by any error of law. The tribunal's findings were supported by the evidence and the inferences drawn were reasonable. The court concluded that the tribunal had felt an actual persuasion that the evidence supported the inference of improper conduct. Consequently, the appeal was dismissed, and the tribunal's decision was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the affirmation of the tribunal's decision. The findings of the tribunal were confirmed, and the first respondent was subject to the disciplinary action as determined by the tribunal.

Orders