Lawler v Real Estate Institute of Tasmania
[2024] TASSC 31
•24 June 2024
[2024] TASSC 31
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Lawler v Real Estate Institute of Tasmania [2024] TASSC 31 |
| PARTIES: | LAWLER, Graeme |
| v | |
| REAL ESTATE INSTITUTE OF TASMANIA | |
| FILE NO: | 2714/2022 |
| DELIVERED ON: | 24 June 2024 |
| DELIVERED AT: | HOBART |
| HEARING DATE: | 21 February 2023 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Appeal and new trial – Appeal – General Principles – Right of appeal – Nature of right - Appeals in the strict sense and appeals by way of rehearing - Tribunal and Magistrate incorrectly determined that nature of appeal was appeal in strict sense and in any event applied an incorrect standard of appellate review - Correctness standard - Need to show error in respect of appeal in the strict sense and a rehearing - How error is demonstrated.
Aust Dig Appeal and New Trial [4-9]
Professions and Trades - Auctioneers and Agents - Disciplinary Proceedings - Nature of appeal from a decision of Property Agents Board to Tribunal in respect of a conduct complaint about a property agent - Hearing de novo - Nature of unsatisfactory professional conduct.
Aust Dig Professions and Trades [1003]
Legislation:
Legal Profession Act 2007
Magistrates Court (Administrative Appeals Division) Act 2001, s26, s47(4)
Property Agents and Land Transactions Act 2016, s6, s83, s85, s86, s100, s101, s103, s104, s116, s117
Cases Cited:
Cinar v Law Society of Tasmania [2014] TASSC 44
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1
Law Society of Tasmania v Turner and Kench [2001] TASSC 129, (2001) 11 Tas R 1
Adamson v The Pharmacy Board of Tasmania No 2 [2004] TASSC 82
Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110
Legal Profession Board of Tasmania v Barclay [2022] TASSC 14
Legal Profession Board of Tasmania v Glynn Williams [2023] TASFC 1
Ling v Incat Tasmania [2000] TASSC 87
Minister for Border Protection v SZVFW and others [2018] HCA 30
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pepper v Attorney General for the State of Queensland [2008] QCA 207
Potkonyak v Legal Services Commission (No 2) [2018] NSWCA 173
Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354
Tasmanian Health Service v Public Trustee as the Administrator of the Estate of J [2020] TASFC 6
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
REPRESENTATION:
Counsel:
Appellant: J Zeeman First Respondent: B Cassidy Second Respondent: C Groves
Solicitors:
Appellant: McMullen Lawyers First Respondent: Page Seager Second Respondent: Dobson Mitchell Allport
| Judgment Number: | [2024] TASSC 31 |
| Number of paragraphs: | 56 |
Serial No 31/2024 File No 2714/2022
GRAEME LAWLER v REAL ESTATE INSTITUTE OF TASMANIA
| REASONS FOR JUDGMENT | BRETT J 24 June 2024 |
1 The conduct of property agents in Tasmania is regulated by the Property Agents and Land Transactions Act 2016 (the Act). This legislation includes a process for investigating, determining and, if appropriate, imposing discipline in respect of complaints made about such conduct. Conduct subject to the disciplinary provisions of the Act includes that which amounts to professional misconduct or unsatisfactory professional conduct. Those terms are defined in the legislation. Complaints about conduct are received and investigated by the Property Agents Board (the Board). After it has completed the investigation, the Board may dismiss the complaint, deal with minor misconduct or otherwise refer the complaint to a Tribunal established under the Act (the Tribunal). In addition to hearing and determining complaints referred to it in this way, the Tribunal also determines appeals from decisions of the Board. A decision of the Tribunal can be reviewed by the Magistrates Court under the Magistrates Court (Administrative Appeals Division) Act 2001(the MCAAD Act). There is a right of appeal from the Magistrates Court to this Court, but only on a question of law. Otherwise, a decision of the Magistrates Court on an application for review is final.
2 This case concerns a complaint made by the Chief Executive Officer of the Real Estate Institute of Tasmania about the conduct of the appellant, who at the relevant time, was a property agent. After investigating the complaint, the Board determined that although the conduct in question had been established, it did not amount to misconduct within the meaning of the Act and, accordingly, dismissed the complaint on the basis that it had not been substantiated. An appeal by the REIT to the Tribunal was unsuccessful, but a review by the Magistrates Court of the Tribunal's rejection of the appeal, was successful. Deputy Chief Magistrate Daly (as his Honour then was) found that the appellant's conduct amounted to unsatisfactory professional conduct. His Honour set aside the Board's decision to dismiss the complaint, and required the Board to deal with the complaint on the basis that it had been substantiated but that the conduct amounted only to minor misconduct.
3 The appellant has now appealed to this Court from the Deputy Chief Magistrate's decision. There are six grounds relied upon by the appellant, but they can be summarised as follows:
(a)
The Deputy Chief Magistrate misapprehended the nature of the appeal to the Tribunal and then the Magistrates Court, and consequently applied an incorrect standard of appellate review.
(b)
His Honour's finding that the appellant's conduct constituted unsatisfactory professional conduct was not open on the evidence, and therefore constituted an error of law. In particular, the conduct did not answer the definition of unsatisfactory professional conduct in the Act because the appellant was not acting as a property agent when he engaged in the relevant conduct and further, the conduct had no bearing on his competence and diligence as a property agent.
(c)
That the orders made by the Deputy Chief Magistrate were beyond his power under the MCAAD Act in that he purported to deal directly with the Board's decision when his power was limited to orders relating to the Tribunal's determination.
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The complaint
4 The disciplinary provisions of the Act are contained in Part 7. Similar to other legislative schemes applicable to the regulation of various professions, including the legal profession, the jurisdictional basis of the disciplinary process is a complaint about the conduct of a property agent under s 86. Although the term is not used in s 86, the subsequent provisions dealing with the procedure to be adopted in respect of a complaint refer to a "conduct complaint". That term is defined by s 83 of the Act to mean "a complaint that appears to involve unsatisfactory professional conduct or professional misconduct or a conviction for a serious offence". Each of those terms are defined by the section.
5 Section 86 provides that a complaint may be made to the Board about the conduct of a property agent by any person. In this case, the complaint was made by Mark Berry, who held the position of Chief Executive Officer of the Real Estate Institute of Tasmania (REIT). That body is not constituted under the legislation and there is no evidence to establish that it holds separate legal personality as an incorporated body. It is described in the complaint as an industry body. The Deputy Chief Magistrate referred to it in his decision as "the peak industry body for the real estate industry in Tasmania".
6 Mr Berry made the complaint on 4 November 2019. The appellant was then working as a real estate agent in the employ of a real estate agency. The complaint related to a series of posts on the appellant's Facebook page, described in the complaint as "his individual Facebook page that is public", as well as an email exchange between the appellant and Mr Berry in relation to the social media posts. The focus of the complaint was a post made on 21 August 2019 in the following terms:
"As you can see Wayne I get upset bout these type of things!
Last week it was the REIT and Property Agents Board. There's graft and corruption
(and kickbacks in some form or other – for example the middle pages of the Real EstateGuide) everywhere!!
And the boys clubs/networks in some of the above organisations – don’t start me on
that!
I know I am very vocal on these types of things – someone has to!!!
I get disappointed that other Property Representatives and Real Estate Agents (and there is a difference), aren't as vocal as me!
Someone needs to get some ball here and deal with some of these matters!!".
7 After this, there was a lengthy email exchange between the appellant and Mr Berry. Mr Berry sought clarification of the remarks in the post on the basis that they appeared to suggest that "that the REIT and the Property Agents Board are in someway receiving kickbacks from the Mercury's Real Estate Guide". The appellant did not provide the requested clarification. He said he would do so but wanted to speak to the Attorney-General first. The complainant then involved the appellant's employer. After further exchanges, on 30 August 2019, the posts were removed by the appellant, but he did not explain or retract any suggestion arising from the assertion of "graft and corruption".
8 Subsequently, the appellant made some further Facebook posts, which were included in the complaint. These included comments which the complainant took as references to the allegations made in the original post and an exchange with another property agent, in which he told that agent to "get fucked".
9 The appellant provided the Board with a written response to the complaint. He stated that, in his view, he and the complainant do not have "a good personal relationship" and that he believed that he was being singled out "for selective enforcement on a number of matters". He acknowledged that
the post of 21 August 2019 was intended to show his "frustration that it seemed like my company’s, and
3 No 31/2024
therefore my, listings were not getting a fair representation in the prime parts of the Real Estate guide". The comments about graft and corruption related to the "seemingly unreasonable allocation of the positioning of advertising" in the guide. He denied that these comments were directed towards the REIT or the Property Agents Board, and claimed that the complainant had misinterpreted them. He pointed out that he had removed the post after consultation with his employer, but it took longer than intended because of technical difficulties. The other posts contained personal light-hearted comments, not directed at the industry. The posted conversation with the other property agent was a friendly exchange with a colleague and the use of bad language was a normal part of their light-hearted banter.
10 In relation to the Facebook page itself, the appellant accepted that although at the time of the relevant posting, he regarded it as "private" and that he could "say whatever I like", he had after discussion with his employer come to the understanding that there were "some circumstances where use of .'my private account' may be considered work related", and that that "knowledge will regulate my social media use in the future". However, he also made the point that "there is a very broad range of things that I post on social media. Much of it is heartfelt and much of it is light weight 'funnies'".
The Board
11 The Act provides for the continuation of the Property Agents Board established under a repealed Act. The Board consists of five members, a Chair who is a lawyer of specified experience and expertise, two property agents and two persons who are not property agents. By s 6, the legislation confers a number of diverse functions on the Board, relevant to the administration and implementation of the Act. These include the administration of the licensing system for property agents established by the Act, maintenance of a register, supervision of trust accounts and education functions, to name only a few. The list also includes the function "to receive, investigate and determine complaints against property agents", and "to develop and ensure compliance with a Code of Conduct for property agents".
12 The legislative scheme set out in Part 7 provides for the Board to investigate a conduct complaint. It is provided with various powers to facilitate the investigation. This includes the power to compel provision of information and documents by service of a notice, and the power to apply for and execute a search warrant. However, there is no specific provision for the conduct of a hearing, and certainly nothing that would permit or facilitate the taking of evidence, on oath or otherwise. It seems clear that decisions of the Board are to be taken at meetings, and Schedule 1 provides for the procedure relevant to those meetings. This includes provision that the Board is to "determine the way in which its decisions are to be published".
13 Section 100 sets out the powers of the Board after it has investigated a complaint. This section provides that at that time:
"the Board may do any one of the following:
(a) if there is insufficient evidence to substantiate the complaint, dismiss the complaint and notify the property agent and the complainant of the dismissal, (b) if the evidence appears to indicate that the conduct complained about only amounts to minor misconduct that can adequately be dealt with by the Board, deal with the matter in accordance with s 101, (c) refer the conduct complaint to the Tribunal."
14 Section 101 sets out the procedure applicable if the Board determines that the conduct amounts only to minor misconduct. Minor misconduct is not defined by the Act. After following the prescribed procedure, the Board must dismiss the complaint if it decides that there is insufficient evidence to substantiate it, or if substantiated, may caution or reprimand the property agent or accept an undertaking from the agent to take or refrain from taking action specified by the Board.
4 No 31/2024
15 In this case, the Board conducted an investigation, which largely seems to have been constituted by a review of the relevant documents and the written submissions of each party. The investigation was considered by the Board and written reasons for its decision were set out in a document under the hand of the Board's chair, Ms Cunningham. It was determined that "whilst the Property Agent's conduct was not considered appropriate, it did not consider it had reached the threshold of misconduct and on that basis the Complaint was not substantiated". Accordingly, the Board dismissed the complaint under s 100(a). In making this decision, the Board did not accept the appellant's explanations as to his intention behind the Facebook post. In particular, it considered "that a reasonable person may interpret the Property Agent's comment relating to graft and corruption as a reference to the REIT, the PAB and/or the Mercury Newspaper". It also considered some of the subsequent language to be inappropriate and did not accept that a member of the public should have to "scroll through numerous posts over a period of several days" to clarify the context of the statements. The appellant was admonished that he "should be conscious of comments he makes on social media or otherwise that may be construed as detrimental to the industry".
The appeal to the Tribunal
16 The Tribunal is established by s 104 "for the purposes of" the Act. It consists of a President, who is appointed by the Governor and must be a legal practitioner of at least five years standing with experience in the areas of law relevant to the position, and two other persons, each of whom is chosen by the President from the members of two separate panels. The panels are constituted so that one represents the views and interests of property agents and the other the interests of consumers.
17 The jurisdiction of the Tribunal is defined by the Act. This includes what I term as its original jurisdiction to determine a conduct complaint which has been referred to it after an investigation by the Board under s 100, and its appellate jurisdiction in respect of decisions of the Board. This arises pursuant to s 116. The nature of the appeal provided by that section is critical to the appellant's argument in this appeal and, accordingly, I set the section out in full:
"(1) An aggrieved person may appeal to the Tribunal against a decision of the Board
under this Act.
(2) In particular, a person may appeal against a decision of the Board –
(a) to refuse to grant or renew a licence; or (b) to suspend the person's property agent licence.
(3) An appeal under this section is to be made in writing –
(a) within 14 days after notice of the Board's decision is given to the person; or (b)
within such further period as the Tribunal considers is appropriate in the interest of justice.
(4) An appeal under this section stays the operation of the decision that is the subject
of the appeal.
(5) At the hearing of an appeal, the Tribunal may –
(a) confirm the decision under appeal; or (b)
set aside the decision and direct the Board to take such action as the Tribunal considers necessary."
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18 The nature of the appeal is not specified in s 116 or elsewhere in the Act. However, the Tribunal considered this question. In particular, it considered whether the appeal might be by way of rehearing, but rejected this and decided as follows:
"Appeals to the Tribunal are however by way of an appeal and not by way of a rehearing. Accordingly, the Tribunal is required to determine whether, on the material before it at the time it made its decision, the Board made a decision which was reasonably open to it.
The Tribunal accepts the submission on behalf of the Property Agent that in the current circumstances error will only exist if the Board's determination decision was illogical, irrational or unreasonable."
19 After reciting the factual background, the Board's decision and the submissions made to it, the Tribunal concluded that although it would have reached a different view to that of the Board "as to whether the impugned conduct was sufficiently serious to fall within the definition of unsatisfactory professional conduct", the Board's decision was open to it. It, accordingly, confirmed that decision. In making this decision, it clearly applied the test as to whether the Board's decision was illogical, irrational or unreasonable.
Review by the Magistrates Court (Administrative Appeals Division)
20 Section 117 of the Act provides that "a person, including the Board may apply under the Magistrates Court (Administrative Appeals Division) Act 2001 for a review of a decision of the Tribunal".
21 The nature of the review and the powers available to the Magistrates Court are set out in s 26
of the MCAAD Act:
"(1) A review of a decision by the Court is to be by way of hearing de novo. (2) In determining an application for a review of a reviewable decision, the Court may exercise all of the functions that are conferred or imposed by any relevant enactment on the decision-maker who made the decision. (3) In determining an application for a review of a reviewable decision, the Court may decide – (a) to affirm the reviewable decision; or (b) to vary the reviewable decision; or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside; or (d) to set aside the reviewable decision and remit the matter for reconsideration by the decision-maker in accordance with any directions or recommendations of the Court."
22 The Deputy Chief Magistrate clearly understood that because he was conducting a hearing de novo, he was in fact stepping into the shoes of the Tribunal and redetermining the appeal under s 116 from the Board's decision. This understanding is consistent with his Honour's consideration at the outset of his decision of the nature and ambit of the appeal from Board to Tribunal under s 116. His Honour ultimately concluded that "s 116(5) creates an appeal in the strict sense" and, therefore to succeed, the appellant must "demonstrate error on the part of the Board". It seems that in arriving at this decision, his Honour placed considerable weight on the powers of the Tribunal under s 116(5) which are limited to confirming the Board's decision or setting it aside and directing the Board to take such action as the Tribunal considers necessary. It does not include the power to substitute its own decision.
6 No 31/2024
23 The Deputy Chief Magistrate then considered the definitions in the Act relating to conduct, including in particular, unsatisfactory professional conduct. It was noted that it was common ground between the parties that the conduct did not amount to the more serious category of professional misconduct. His Honour relied on my comments in Legal Profession Board of Tasmania v Barclay [2022] TASSC 14 in respect of similar definitions under the Legal Profession Act 2007, to conclude that the determination as to whether conduct fell within the definition of unsatisfactory professional conduct required "an evaluative assessment of the property agent's conduct, measured against the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian property agent". It was noted that the evaluation depends on the expectation of a reasonable member of the public, not the views expressed by other property agents.
24 His Honour then analysed the evidence in considerable detail. He considered that there were "two distinct aspects" to the conduct, the allegations made in the post of 21 August 2019 and the "inappropriate banter" contained in the subsequent posts. His Honour found that it was "plainly open to the Board to conclude" that the latter "could not amount to unsatisfactory professional conduct or minor misconduct". However, in respect of the allegation of "graft, corruption and kickbacks", his Honour found that the facts and circumstances "prove to a high standard" that:
"a) Mr Lawler was acting as a property agent at all material times; b)
his Facebook post-dated 21 August 2019 alleged that the REIT, the Property Agents Board and the Mercury newspaper were involved in graft, corruption
and kickbacks, on any reasonable reading of the post;
c) his allegation was without any basis in fact and the publication of his post was motivated by the grievances set out in his letter of response to the Board; d) the property agent unreasonably refused the REIT's requests to remove, explain or clarify the post, for a period of about 9 days, during which period the post remained on the property agent's page; e) that conduct amounted to acting in a way that may be detrimental to the reputation or interests of the property agents industry contract to clause 15 of the Code of Conduct;
f) the conduct fell short of the standard of competence and diligence that a reasonable member of the public is entitled to expect from a reasonably competent property agent."
25 His Honour then proceeded to set aside the Board's decision to dismiss the complaint and ultimately directed the Board as follows:
"1
That the Board is to deal with the matter on the basis that the evidence substantiates the complaint that the property agent's conduct amounts to unsatisfactory professional conduct.
2
That the Board should deal with the matter on the basis that it only amounts to minor misconduct that the Board can adequately deal with in accordance with the Act s 101."
Grounds 1, 2, 5 and 7 – the nature of the appeal under s 116
26 The appellant accepts the magistrate's conclusion that the appeal under s 116 is an appeal stricto sensu, and that therefore in order to allow the appeal, it was necessary for the Tribunal to determine that the Board was in error. The appellant submits further, as he clearly did to the Tribunal, that such error can only be established from the result of the Board's determination, if it is shown that that decision was illogical, irrational or unreasonable. The appellant argues that the Deputy Chief Magistrate did not identify or properly apply this standard of appellate review. In particular, it is asserted that rather than
7 No 31/2024
determining that the Board's decision was illogical, irrational or unreasonable, his Honour simply proceeded to "give the judgment which, in his honest opinion ought to have been given in the first instance". It is submitted that in doing so, the Deputy Chief Magistrate fell into error.
27 These arguments confuse the standard necessary to establish jurisdictional error, for example for the purposes of judicial review or prerogative relief, with the question which is relevant on an appeal which requires the identification of error, irrespective of whether it is an appeal in the strict sense, or a rehearing. Although not directly determinative of this appeal, it is apparent that the Tribunal fell into precisely the same error. I will discuss the standard applicable to determining appellate error shortly, but, while jurisdictional error will establish error for the purpose of an appeal, it is not a necessary precondition of such a finding. In this respect, the appellant's submissions are misconceived.
28 However, before proceeding to a more detailed consideration of that question, it is appropriate to first determine the nature of the appeal under s 116. Because an appeal is a creature of statute, its nature and the standard of review applicable to it will be determined by the legislation: Fox v Percy [2003] HCA 22, (2003) 214 CLR 118. Sometimes, the answer will be expressly specified by the legislation, for example s 26 of the MCAAD Act. Where it is not, as the Deputy Chief Magistrate correctly noted, it is a matter of statutory construction. In this regard, the statutory context, including the nature of the decision appealed from, the manner in which that decision is made under the legislation, the powers of the appellate tribunal both in terms of conducting the appeal and upon determination of the appeal, and the constitution and nature of the appellate tribunal itself, are all important considerations.
29 In Cinar v Law Society of Tasmania [2014] TASSC 44, Blow CJ considered the nature of an appeal from a decision of the Law Society of Tasmania to refuse to grant an admitted practitioner a practising certificate. The appeal was to the Supreme Court under the Legal Profession Act 2007. His Honour accepted the agreed position of the parties that the appeal was by way of hearing de novo. He said:
I think that is clear from the statutory context. The Society is not obliged to hold a hearing or give reasons for its decision. The Court is empowered by s84(2) to make any order that it considers appropriate on the appeal. There is no restriction on the grounds of appeal, nor is there any requirement to identify grounds of appeal. Counsel for the parties referred me to a number of decisions that support the conclusion that the appeal is one by way of hearing de novo: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669; Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110; Barakat v Law Society (NSW) [2014] NSWSC 773."
30 The cases cited by his Honour all support the proposition that an appeal from an administrative body to a Court will generally be treated as a hearing de novo. However, the final construction will depend on the intention of the legislature, which will be derived as a matter of statutory interpretation from the text and context of the legislation.
31 The presumption that an appeal from an administrative body to a Court is a hearing de novo seems to have much to do with the nature of the original decision, and the manner in which it is made. In the Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110, the Full Court of the Supreme Court of the Australian Capital Territory said this:
"The Law Society Council contended that s 81(1)(a) of the Act provides for an appeal by way of a hearing de novo. The parties are not confined to the evidence which was before the Law Society. The opinion of the Court is substituted for the opinion of the Law Society. In the present appeal the Law Society sought to introduce evidence of events which occurred after the decision of the Law Society was made on 3 June 2010.
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Whether the appeal is intended to be by way of hearing de novo or otherwise depends on the statutory intent. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (Sperway), Mason J said at 621-622:
'Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule
to this effect. … There are, of course, sound reasons for thinking that in many
cases an appeal to a court from an administrative authority will necessarily
entail a hearing de novo … The nature of the proceeding before the
administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.
On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing'. (emphasis added) (citations omitted)
The Legal Profession Act does not require or provide for the Law Society Council to conduct a hearing before it refuses to renew a practising certificate. It does not require the Law Society Council to make a record of what takes place or to give reasons for the decision. It does not require the Law Society Council to apply the rules of evidence. In contrast, where the Law Society Council investigates and decides complaints against legal practitioners, it is bound to give notice of the complaint to the legal practitioner and allow the legal practitioner to make submissions and to keep a record of the proceedings, give reasons for the decision and accord procedural fairness (see Legal Profession Act, Pts 4.2, 4.4, 4.5 and 4.6).
In these circumstances, by reference to the reasoning in Sperway, s 81(1)(a) was intended to confer a right of appeal involving a hearing de novo."
32 In my view, the statutory context leads inevitably to the conclusion that the appeal from the Board to the Tribunal under s 116 is by way of a hearing de novo. It is clear that the appeal can relate to any decision of the Board under the Act, which includes a diverse range of administrative decisions. It certainly includes the matters referred to in s 116(2), that is a decision to refuse to grant or renew a licence or suspend a licence, but in my view the generality of the ambit of s 116(1) is not limited by the more specific provisions of s 116(2): see Pepper v Attorney-General for the State of Queensland [2008] QCA 207. Importantly, there are no provisions in the Act which provide for the justiciable determination by the Board of the matters which it needs to determine to perform its various functions. Indeed, the relevant provisions in respect of disciplinary matters make it clear that the Board is conducting an investigation and it makes a decision as an administrative body on the basis of that investigation. There is no provision for a hearing at first instance or for a record to be made of its decision-making. Although
9 No 31/2024
the Board in this case provided written reasons, there is nothing in the Act which compels their
production.33 In contrast, the Tribunal has broad powers to conduct a hearing, compel witnesses to give evidence on oath or affirmation and require the production of documents. Section 103 makes it clear that the provisions granting those powers apply "if under this Act any action is required to be taken by the Tribunal". This clearly includes the determination of an appeal under s 116.
34 All of this strongly supports a conclusion that the legislative intention is that the Tribunal will exercise original jurisdiction, including in respect of an appeal from a decision of the Board. The only indication that suggests that there may be any limitation in that regard, are the provisions of s 116(5), in particular the powers of the Tribunal upon determination of the appeal. The cases discussed above make it clear that the power of the appellate body to substitute its own decision is an important consideration in respect of whether or not it is re-exercising the jurisdiction on a de novo basis. However, I do not think that that consideration is determinative of this question. There is certainly no specific provision for the Tribunal to substitute its own decision but clearly it has a very wide power to compel the Board "to take such action as the Tribunal considers necessary". The formulation of the power in that way is understandable given the statutory context, in particular that the decision in question may necessitate administrative action which is a function of the Board, and not practically amenable to implementation by the Tribunal. The formulation of these powers does not detract from my conclusion that the Tribunal is to reconsider the relevant decision on a de novo basis.
35 In any event, as already noted, in respect of an appeal in the strict sense or a rehearing on the materials before the Board, the appellant's submissions, and the Tribunal's decision, incorrectly characterise the necessary appealable error as jurisdictional error and, in particular, a decision that the primary decision was illogical, irrational or unreasonable. That type of error is, of course, sufficient to support an appeal, but its real function relates to cases involving judicial review of administrative decisions or the grant of prerogative relief, such as relief in the nature of certiorari in respect of inferior courts and tribunals: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1. Indeed, the case referred to by the Tribunal in order to explain a decision which is illogical, irrational or unreasonable, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 is a case that dealt with a limited form of judicial review, where the Court's intervention was only available on the basis of jurisdictional error. It had nothing to do with appealable error relevant to an appeal in the strict sense or as a rehearing.
36 In Minister for Border Protection v SZVFW and others [2018] HCA 30, Gageler J explained the standard of appellate review applicable to both an appeal in the strict sense and an appeal by way of rehearing. His Honour confirmed that both are procedures concerned with the correction of error. "[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal": Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 519. The real difference between the two forms of appeal "lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal". Both determine the correctness of the decision under appeal on the evidence before the decision maker at first instance, but the appeal in the strict sense decides the question on the basis of the law applicable at that time, whereas on a rehearing the appeal court applies the law applicable at the time of the appeal. In respect of the latter, the evidence at first instance can be supplemented by further evidence permitted by the appeal court.
37 Of importance to the case before me, his Honour went on to explain the nature of the error relevant to either form of appeal. He noted the distinction between an appeal from the exercise of discretion and a case in which there is only a unique outcome. In respect of the latter, the error will appear from an incorrect decision. This is described as the correctness standard of appellate review. His Honour discussed the cases in which such a standard will be applicable:
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"The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction.
The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable."
38 His Honour also discussed the task of the appeal court when applying the correctness standard, citing with approval the words of the majority of the High Court in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531:
"The duty of the appellate court is to decide the case – the facts as well as the law – for itself.
In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment."
39 In this case, I have no hesitation in concluding that if the nature of the appeal from the Board to the Tribunal required the demonstration of error, then the determination of the existence of that error would proceed according to the correctness standard of appellate review. In other words, there is only one correct decision as to whether the conduct of the appellant is properly characterised as unsatisfactory professional conduct. It does not involve an exercise of discretion. To the extent that it involves an evaluative exercise, it does not permit "some latitude of choice or margin of appreciation such as to admit to a range of legally permissible outcomes". Accordingly, in respect of either form of appeal, the Tribunal would be required to conduct a real review of the evidence and reach its own decision as to whether or not the correct decision was reached by the Board. The existence of error would be determined by the answer to that question.
40 However, as I have already indicated, my view is that the nature of the appeal is by way of a hearing de novo. Accordingly, there was no need for error to be established before the Tribunal could exercise its powers under s 116(5). It was simply required to determine the question afresh.
41 It is apparent from what I have said that the learned Deputy Chief Magistrate did err when he determined that the appeal was an appeal in the strict sense, and further applied an incorrect standard of appellate review. However, it is also clear that he has not made the errors complained of in grounds 1, 2, 5 and 7. In the circumstances of this case, the errors are immaterial. It is apparent that his Honour was mistaken about the nature of the appeal and further mistaken in taking the view that it was necessary for him to conclude that the Board's decision was "one which no reasonable decision-maker could reasonably make". However, it is also apparent that in applying that test, his Honour has in fact conducted the analysis that, in the circumstances of this case, was consistent with that appropriate for a de novo reconsideration of the question. His Honour has assessed the evidence, applied the relevant law and made his own determination as to whether or not the conduct fell within the definition of unsatisfactory professional conduct, and further amounted to minor misconduct. It is common ground that the Deputy Chief Magistrate has taken that approach because this methodology, in fact, forms the basis of the complaint in ground 7. That ground is misconceived because in taking this approach, his
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Honour was actually assessing the case in the correct manner despite the errors he had made as to the appropriate standard of appellate review. The fact that his Honour erroneously applied the more stringent test stated by him does not affect the outcome in this case, because he found that his different view met that more stringent test in any event. Further, in this case, because all of the evidence was documentary and unchallenged, there was no practical difference in the hearing of the appeal between an appeal in the strict sense and a hearing de novo. There is no suggestion that there was any other material available to the parties which was not placed before or addressed by his Honour, or which would have made any difference to the outcome of the appeal.
42 It follows that grounds 1, 2, 5 and 7 have not been made out.
Grounds 3 and 4
43 These grounds directly attack his Honour's finding that the impugned conduct of the appellant in respect of the post of 21 August 2019 amounted to unsatisfactory professional conduct. In particular, it is asserted that there was no evidence that the appellant was acting as a property agent when he engaged in that conduct and further, there is no evidence that the conduct "went to the appellant's competence and diligence". It is argued that these are both necessary elements of the definition of unsatisfactory professional conduct.
44 Of course, the appeal to this Court is only available in respect of an error of law. It is well established that in respect of a factual finding, an error of law can only be established in respect of that finding if the appeal court concludes that the finding is one that "no Tribunal, properly instructed as to the law and acting reasonably could have made". Tasmanian Health Service v Public Trustee as the Administrator of the Estate of J [2020] TASFC 6, per Martin AJ, with whom I agreed, referring to comments of Underwood J in Ling v Incat Tasmania [2000] TASSC 87. In this case, the real question raised by these grounds is whether the primary facts, which are essentially undisputed, fall within the statutory definition of unsatisfactory professional conduct. In such a case, the question will be
"exclusively of law … if on the facts found, only one conclusion is open concerning whether the case
does or does not come within" that statutory expression. However, if it is "reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views, then the question becomes one of fact and not of law". See Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354 per Crawford J referring to Vetter v Lake Macquarie City Council (2001) 202 CLR 439, and Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547.
45 In this case, the appellant's argument asserts an error of law. The question raised is whether the Deputy Chief Magistrate correctly found that the post, the terms of which were undisputed, and the appellant's response to the complainant's requests to remove the post, and explain and clarify the comments in it, all of which was established by documents and undisputed, came within the statutory definition of unsatisfactory professional conduct. As I have already noted, there is only one answer to this question.
46 In order to determine that question, it is necessary to construe the statutory definition. The appellant's argument raises the specific issues of whether the relevant conduct occurred when the appellant was "acting as a property agent" and whether it was conduct that was relevant to the appellant's competence and diligence as a property agent. It was submitted on behalf of the second respondent that these questions "raise a matter of general importance concerning the boundaries of conduct which will comprise unsatisfactory professional misconduct or professional misconduct for the purpose of the Act." This includes, as I understand the submission, the question as to whether the definition in s 81 is inclusive or exhaustive, and if the former, whether it can therefore include conduct which does not answer the statutory definition. I was referred to a number of cases dealing with the question of whether conduct which does not directly occur in the course of professional practice is amenable to the disciplinary provisions of the analogous legislation applicable to other professions.
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47 With respect, it is not necessary or desirable in this case to consider or express a view on the latter question. The relevant definition uses the word "includes" and I have been referred to many cases which suggest that such a statutory definition should be interpreted inclusively, and not exhaustively. See, for example, Law Society of Tasmania v Turner and Kench [2001] TASSC 129, (2001) 11 Tas R 1; Adamson v The Pharmacy Board of Tasmania No 2 [2004] TASSC 82. I have no real quibble with that proposition but the question, in my view, does not arise in this case. The factual finding by the Deputy Chief Magistrate was that the conduct found by him relating to the post alleging "graft, corruption and kickbacks" fell squarely within the statutory definition. In particular, his Honour found that the appellant "was acting as a property agent at all material times", and that "the conduct fell short of the standard of competence and diligence that a reasonable member of the public is entitled to expect from a reasonably competent property agent". The only question is whether these findings were correct having regard to the primary facts established by the evidence.
48 In my view, that question must be answered in the affirmative. The finding that the appellant "was acting as a property agent at all material times" was clearly open on the evidence. His Honour referred to evidence that the nature of the Facebook post made it clear that the post was written by a property agent and there was evidence that the Facebook account was used by the appellant for purposes associated with his work as a property agent. It is an entirely reasonable proposition that the work of a property agent, particularly one whose work consists of marketing real estate to members of the public, includes all aspects of the agent's interface with the public, such as the ongoing maintenance of and contribution to a social media account. His Honour was in my view correct to find that posts to that account discussing matters related to the property industry fell within that part of the statutory definition which refers to conduct of a property agent "when acting as property agent".
49 The appellant's argument in respect of the finding that "the conduct fell short of the standard of competence and diligence that a reasonable member of the public is entitled to expect from a reasonably competent property agent" is, in essence, that adverse comments about institutions relevant to the industry, even in circumstances in which those comments may be detrimental to the reputation and the interests of the industry, is not a matter that relates to the competence and diligence of a property agent.
50 The argument may have some weight if the words "competence" and "diligence" are considered in isolation. However, when read in context and as part of the wider definition, it becomes clear that they should not be interpreted in a narrow way. They are words of wide meaning intended to respond to the public's expectation of the professional work of a property agent. In order to properly consider the Deputy Chief Magistrate's approach to this question, it is necessary to take into account the associated finding that the "conduct amounted to acting in a way that may be detrimental to the reputation or interests of the property agent's industry contrary to cl 15 of the Code of Conduct". The significance of this finding can be understood in the light of s 85:
"Application of Code of Conduct
(1) The Code of Conduct is to contain guidance on what does or does not constitute
unsatisfactory professional conduct and professional misconduct.(2) … (3) A failure on the part of a property agent to observe a provision of the Code does not of itself render the property agent liable to disciplinary action, but the failure may be relied upon as tending to establish that the property agent was guilty of unsatisfactory professional conduct or professional misconduct."
51 While the breach of the Code of Conduct is not determinative, its statutory incorporation into a consideration of whether there has been unsatisfactory professional conduct indicates a legislative intention to broadly define such conduct. The words in the definition are, in my view, intended to inform an expected standard of conduct of a property agent. The same formulation is used in the Legal
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Profession Act. While I cannot find a case in which the exact meaning of the ambit of that phrase has been considered, it is clear from numerous cases that the emphasis is on the standard that a member of the public is entitled to expect of the relevant professional. The definition captures conduct which falls short of that standard. It follows that a wide variety of conduct is capable of informing the public's expectation of competence and diligence. The courts have consistently refused to fix or limit the categories of such conduct. For example, in Potkonyak v Legal Services Commission (No 2) [2018] NSWCA 173, the New South Wales Court of Appeal said this:
"Although unsatisfactory professional conduct and professional misconduct are defined in the legislation, the terms, as defined, are open-ended, thus requiring the decision- maker to make an evaluative determination as to whether the impugned conduct 'falls
short of the standard of competence and diligence that a member of the public is entitled
to expect of a reasonably competent Australian legal practitioner', or whether the 'the
conduct involves a substantial or consistent failure to reach or maintain a reasonable
standard of competence and diligence'. As this Court observed in Griffin v Council of
the Law Society of New South Wales [2016] NSWCA 364 at [91]:'These descriptions of "professional misconduct" and the definition in s 497(1) of [the Legal Profession Act] demonstrate that the concept ... is concerned with improper or incompetent behaviour by a legal practitioner which casts doubt on the practitioner's fitness to engage in legal practice.' (footnote omitted)
In Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA
369, this Court noted, at [44], that:'... there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness'.'"
52 In Legal Profession Board of Tasmania v Glynn Williams [2023] TASFC 1, the Full Court proceeded on the basis that a lawyer's offer to settle a client's dispute with another person on condition that that person withdraw a criminal complaint, was conduct which fell short of the requisite standard of competence and diligence. The issue in the case concerned whether the conduct amounted to professional misconduct or unsatisfactory professional conduct. The outcome of that question is not relevant to this case, but I observe that the Court had no difficulty in proceeding on the assumption that the conduct fulfilled the basic criteria, notwithstanding that on a narrow view, the conduct was very much concerned with the public's expectation of proper conduct, and not directly concerned with "competence" and "diligence" in the performance of work.
53 It follows that I am satisfied that this factual finding was open to the Deputy Chief Magistrate. The appellant has not demonstrated that his Honour erred in law, as claimed in grounds 3 and 4.
Ground 8
Ground 8 asserts as follows:
"His Honour's purported decision to set aside the Second Respondent's decision and the making of directions directed to the Second Respondent was an improper exercise of the power under the enactment under which they were purportedly made, namely s 26 of the Magistrates Court (Administrative Appeals Division) Act 2001."
54 The argument advanced in support of this ground seems to be that the Deputy Chief Magistrate dealt directly with the Board's decision as if he were exercising the powers conferred on the Tribunal under s 116(5), rather than exercising the powers conferred on him by s 26(3) of the MCAAD Act. Hence, it is argued, the Deputy Chief Magistrate exceeded power in doing so.
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55 His Honour was conducting a hearing de novo of the Tribunal decision. By s 26(3)(c) of the MCAAD Act the power conferred on the Magistrates Court upon a successful application for review, is "to set aside the reviewable decision and make a decision in substitution" for it. In respect of the substituted decision, I have no doubt that his Honour was limited to the same powers conferred upon the Tribunal by s 116(5). This must be so, particularly given the de novo nature of the review. Having regard to his Honour's determination, he was thereby empowered to make an order in substitution for the Tribunal's order, that is to set aside the decision of the Board, and direct the Board to take such action as he considered necessary. That is precisely what the Deputy Chief Magistrate did. If there is any error, then it is simply that he has omitted the intermediate step of expressly saying that the Tribunal's decision is set aside and in its place the orders contained in cl 79 are substituted. I do not regard this omission as a material error. In any event, I have power under s 47(4) to make such order as I think appropriate. For the sake of completeness, and without for a moment indicting that I regard it as necessary, I would order that the decision of the Tribunal confirming the Board's decision be set aside and replaced by the order made by the Deputy Chief Magistrate at par 79 of his reasons.
56 The appeal is otherwise dismissed.
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25
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