Norman Phillip Carey v Commissioner for Consumer Protection

[2014] HCASL 141

NORMAN PHILLIP CAREY

v

COMMISSIONER FOR CONSUMER PROTECTION

[2014] HCASL 141
P5/2014

1. The applicant held a real estate agent's licence under the Real Estate and Business Agents Act 1978 (WA) ("the REBA Act"). In February 2011, the applicant was convicted in the Magistrates Court of Western Australia at Perth of five offences contrary to the Fair Trading Act 1987 (WA) ("the FTA")[1]. He appealed unsuccessfully to the Supreme Court of Western Australia against the convictions. Following delivery of judgment in the appeal, the respondent, the Commissioner for Consumer Protection ("the Commissioner"), determined pursuant to s 31(3) of the REBA Act to refuse to renew the applicant's triennial certificate.

   [1]Sections 12(2)(b) and 81.

2. The State Administrative Tribunal of Western Australia ("the Tribunal") set aside the Commissioner's decision and substituted a decision renewing the applicant's triennial certificate on conditions.  The Commissioner appealed from that decision to the Court of Appeal of the Supreme Court of Western Australia (McLure P, Buss and Murphy JJA). 

3. An appeal from a decision of the Tribunal to the Court of Appeal is confined to a question of law[2].  The Court of Appeal found that the Tribunal erred in law by taking into account an irrelevant matter[3]; by making a finding that the primary facts were incapable of supporting[4]; and by mischaracterising the nature of the applicant's convictions as merely a "systems failure" or "failure of compliance"[5].  The Court of Appeal held that the only conclusion that was open on the evidence before the Tribunal was to affirm the Commissioner's decision.  It allowed the appeal, set aside the decision of the Tribunal and substituted a decision affirming that of the Commissioner.

   [2]State Administrative Tribunal Act 2004 (WA), s 105(2).

   [3]Commissioner for Consumer Protection v Carey [2014] WASCA 7 at [77] per McLure P (Buss JA agreeing at [158], [169], Murphy JA agreeing at [170]).

   [4]Commissioner for Consumer Protection v Carey [2014] WASCA 7 at [90] per McLure P (Buss JA agreeing at [158], [169], Murphy JA agreeing at [170]).

   [5]Commissioner for Consumer Protection v Carey [2014] WASCA 7 at [155]-[156] per McLure P (Buss JA agreeing at [158], [169], Murphy JA agreeing at [170]).

4. The applicant applies for special leave to appeal. He does not have legal representation and his application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth).

5. The applicant's proposed grounds of challenge are directed to, among other things, the grant of leave by the Court of Appeal to amend the grounds of appeal to permit the Commissioner to raise "the factual foundation ground".  He contends that in the result, the Commissioner was permitted to develop a case that had not been run in the Tribunal and to which he had no opportunity to respond.  These contentions, variously stated, are prominent in the summary of argument. 

6. The application for leave to amend was foreshadowed during the course of the hearing in the Court of Appeal and the Commissioner was given leave to file the proposed amended ground together with written submissions.  The applicant made submissions objecting to the amendment.  The Court of Appeal upheld the objection in part.  However, it rejected the applicant's contention that the "factual foundation claim" had not been in issue in the Tribunal.  President McLure said that that assertion was inconsistent with the Tribunal's identification of the issues[6].  It was also inconsistent with the applicant's opening in the Tribunal, which had raised the characterisation of the conduct underlying his convictions as an issue[7].

   [6]Commissioner for Consumer Protection v Carey [2014] WASCA 7 at [48] per McLure P (Buss JA agreeing at [158], [169], Murphy JA agreeing at [170]).

   [7]Commissioner for Consumer Protection v Carey [2014] WASCA 7 at [49] per McLure P (Buss JA agreeing at [158], [169], Murphy JA agreeing at [170]).

7. The application does not involve a question of law of public importance nor does it engage the interests of the administration of justice.  This and the other proposed grounds of appeal do not disclose a basis for doubting the correctness of the decision of the Court of Appeal.  If special leave to appeal were granted, there are insufficient prospects that the appeal would succeed. 

8. The application is dismissed.

9. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
15 August 2014 S.J. Gageler