Paridis v Settlement Agents Supervisory Board
[2006] WASCA 234
•27 OCTOBER 2006
PARIDIS -v- SETTLEMENT AGENTS SUPERVISORY BOARD [2006] WASCA 234
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 234 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:134/2006 | 27 OCTOBER 2006 | |
| Coram: | BUSS JA | 27/10/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Interim application for a stay granted | ||
| B | |||
| PDF Version |
| Parties: | KATHERINE MARIE ANNETTE PARIDIS SETTLEMENT AGENTS SUPERVISORY BOARD |
Catchwords: | Appeal Application for a stay of State Administrative Tribunal decision pending determination of application for leave to appeal Turns on own facts |
Legislation: | Settlement Agents Act 1981 (WA), s 46(2)(b), s 49(6)(d), s 84(1) Settlement Agents' Code of Conduct 1982 (WA), r 15 State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(13), s 105(14) |
Case References: | Quinn v Law Institute of Victoria Ltd [2005] VSCA 326 Woods v The Legal Ombudsman [2002] VSCA 133 A Practitioner of This Honourable Court v Legal Practitioners Complaints Committee [2004] WASCA 250 Gerah Imports Pty Ltd v Duke Group Ltd (In liq) Grljusich v Andrews [2003] WASCA 206 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Hughes v Architects' Registration Council of the United Kingdom [1957] 2 QB 550 Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); 13 November 1992 Kwa v Bank of Western Australia [2003] WASCA 163 Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 344 Mullany v Psychologists Registration Board, unreported; SCt of Vic (Gillard J); 22 December 1997 New South Wales Bar Association v Evatt (1968) 117 CLR 177 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PARIDIS -v- SETTLEMENT AGENTS SUPERVISORY BOARD [2006] WASCA 234 CORAM : BUSS JA HEARD : 27 OCTOBER 2006 DELIVERED : 27 OCTOBER 2006 FILE NO/S : CACV 134 of 2006 BETWEEN : KATHERINE MARIE ANNETTE PARIDIS
- Appellant
AND
SETTLEMENT AGENTS SUPERVISORY BOARD
Respondent
- Appellant
AND
KATHERINE MARIE ANNETTE PARIDIS
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR J MANSVELD (MEMBER)
MS C WINSOR (SESSIONAL MEMBER)
Citation : SETTLEMENT AGENTS SUPERVISORY BOARD and PARIDIS [2006] WASAT 292
File No : VR 398 of 2005
Catchwords:
Appeal - Application for a stay of State Administrative Tribunal decision pending determination of application for leave to appeal - Turns on own facts
Legislation:
Settlement Agents Act 1981 (WA), s 46(2)(b), s 49(6)(d), s 84(1)
Settlement Agents' Code of Conduct 1982 (WA), r 15
State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(13), s 105(14)
Result:
Interim application for a stay granted
Category: B
(Page 3)
Representation:
CACV 134 of 2006
Counsel:
Appellant : Mr G M Abbott
Respondent : Mr S W O'Sullivan
Solicitors:
Appellant : Hotchkin Hanly
Respondent : Settlement Agents Supervisory Board
CACV 138 of 2006
Counsel:
Appellant : Mr S W O'Sullivan
Respondent : Mr G M Abbott
Solicitors:
Appellant : Settlement Agents Supervisory Board
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Quinn v Law Institute of Victoria Ltd [2005] VSCA 326
Woods v The Legal Ombudsman [2002] VSCA 133
Case(s) also cited:
A Practitioner of This Honourable Court v Legal Practitioners Complaints Committee [2004] WASCA 250
Gerah Imports Pty Ltd v Duke Group Ltd (In liq)
Grljusich v Andrews [2003] WASCA 206
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
(Page 4)
Hughes v Architects' Registration Council of the United Kingdom [1957] 2 QB 550
Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); 13 November 1992
Kwa v Bank of Western Australia [2003] WASCA 163
Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 344
Mullany v Psychologists Registration Board, unreported; SCt of Vic (Gillard J); 22 December 1997
New South Wales Bar Association v Evatt (1968) 117 CLR 177
(Page 5)
1 BUSS JA: The appellant in CACV 134 of 2006 ("the appellant") is the holder of a real estate settlement agent's licence that was first issued on 4 February 1992, and is the holder of a current triennial certificate expiring on 3 February 2007. She carries on business as a sole proprietor under the name Sunset Coast Settlements.
2 By an application filed on 28 November 2005 in the State Administrative Tribunal, the respondent in CACV 134 of 2006 ("the respondent") sought disciplinary orders against the appellant pursuant to s 84(1) of the Settlement Agents Act 1981 (WA). That application related to 25 allegations which the respondent made against the appellant.
3 Allegations 1 to 19 alleged that for each of the months November 2001 to May 2002, and July 2002 to June 2003, (that being 19 months) the appellant acted contrary to s 49(6)(d) of the Settlement Agents Act in that she failed correctly to balance her trust account and certify that this had been done in records. The appellant admitted those allegations.
4 Allegations 20 and 21 alleged that on or about 12 March 2004 and also on 2 April 2004, the appellant acted contrary to s 46(2)(b) of the Settlement Agents Act in that she effected settlement of a leasehold property. The appellant admitted those allegations.
5 Each of allegations 23 and 25 alleged that the appellant acted contrary to r 15 of the Settlement Agents' Code of Conduct 1982 (WA) in that she did not settle efficiently a transaction concerning a leasehold property. The appellant admitted those allegations.
6 Each of allegations 22 and 24 alleged that the appellant acted contrary to r 15 of the Code of Conduct in that she did not settle honestly a transaction concerning a leasehold property. The appellant denied those allegations and the Tribunal found that they had not been made out.
7 The Tribunal decided that the allegations admitted by the appellant, in particular, those relating to her trust account, involved a serious breach of public trust and warranted a suspension of her licence. The Tribunal made two orders. First, it suspended the appellant's licence and triennial certificate for 12 months, but also decided that the suspension should be deferred for two months to enable the appellant to finalise existing settlements and to enable her trust account to be reduced to a nil balance. Secondly, the Tribunal ordered the appellant to pay the respondent's costs in the sum of $3000. The Tribunal made those orders and published its reasons for decision on 22 September 2006. Pursuant to the Tribunal's orders, the 12-month suspension of the appellant's licence and triennial
(Page 6)
- certificate is to commence on 24 November 2006. The appellant has complied with the order as to costs.
8 On 10 October 2006 the appellant filed an application to this Court, CACV 134 of 2006, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA), for leave to appeal from the Tribunal's decision that her licence and triennial certificate be suspended for 12 months. On 16 October 2006 the respondent filed its own application to this Court, CACV 138 of 2006, for leave to appeal from the Tribunal's decision that allegations 22 and 24 had not been made out.
9 On 10 October 2006 the appellant also made application to this Court, pursuant to s 106(1) of the State Administrative Tribunal Act, for an order that the decision of the Tribunal that her licence and triennial certificate be suspended be stayed pending the determination of her application for leave to appeal and, if leave be granted, the appeal itself. The application for a stay, which is supported by the appellant's affidavit sworn 10 October 2006, is before me this morning for determination. The parties filed written submissions yesterday and I have heard oral submissions from counsel this morning.
10 By s 105(2) of the State Administrative Tribunal Act, an appeal from a decision of the Tribunal can only be brought on a question of law. By s 105(13), however:
"Despite subsection (2), if the Tribunal's decision -
(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact."
- The Settlement Agents Act is a relevant Act for the purposes of s 105(13). See s 105(14) and the statutes enumerated in Sch 1.
11 The appellant has not filed a minute of proposed grounds of appeal in support of its application for a stay. It should have done so. The alleged errors relied on by the appellant are not identified with precision in her written submissions, although they have been clarified by counsel in oral submissions.
(Page 7)
12 The principles governing stay applications in proceedings relating to the suspension of legal practitioners were referred to by Winneke P (with whom Chernov JA agreed) in Woods v The Legal Ombudsman [2002] VSCA 133. His Honour said at [7]:
"Legal practitioners who seek a stay of orders made by their disciplinary Tribunal, while an appeal is pending or for any other reason, have the onus of persuading the Court that such a stay should be granted. There are a number of balancing factors which will bear upon the Court's decision as to whether such an indulgence should be afforded. The first is that disciplinary proceedings against those who hold themselves out to the public as fit to practise (in this case, the solicitors) are sui generis. The discipline imposed, whilst punitive in its application to the practitioners involved, is very largely protective of the public interest. Other matters which this Court will take into account will include the seriousness of the conduct which has led to the Tribunal's decision and the prospects which the instituted appeals have of succeeding."
- Also see Quinn v Law Institute of Victoria Ltd[2005] VSCA 326.
13 I ordered earlier this morning that the appellant's application for leave to appeal in CACV 134 of 2006 should be heard together with the appeal on 18 January 2007, and that the respondent's application for leave to appeal in CACV 138 of 2006 should be heard together with the appeal, also on 18 January 2007. Earlier this morning I also made programming orders in relation to CACV 134 of 2006 and CACV 138 of 2006 to enable them to be heard on 18 January 2007.
14 I have decided, in relation to the appellant's application for a stay, that a stay should be granted until the determination of the appellant's application for leave to appeal, or further order.
15 My reasons for granting the stay are as follows. First, unless a stay is granted, a successful appeal will, in part, effectively be rendered nugatory. By the time the appellant's application for leave to appeal is heard and determined, part of the period of suspension will have been served. If the application for leave to appeal is granted and the appeal is successful, it will not be possible to restore the appellant to her former position. Counsel for the parties were agreed that it is not reasonably practicable for the appellant to endeavour to procure the appointment of another appropriately licensed person to operate her business during the period of her suspension. Secondly, the appellant's application for leave to appeal
(Page 8)
- appears to be reasonably arguable. Thirdly, although the Tribunal decided that the appellant's breaches of the Settlement Agents Act involved a serious breach of public trust which warranted a suspension of her licence and triennial certificate, the Tribunal evidently did not consider that the protection of the public required the suspension to commence immediately. The Tribunal deferred unconditionally the commencement of the suspension for two months and decided that it should commence on 24 November 2006. Fourthly, it is apparent from the appellant's affidavit sworn 10 October 2006 or from the Tribunal's reasons for decision that:
(a) the appellant has been carrying on business as a settlement agent for about 12 years;
(b) there is no evidence that any conduct of the appellant between July 2003 and February 2004, or since April 2004, has breached the Settlement Agents Act or is the subject of any existing or contemplated disciplinary proceedings;
(c) the Tribunal did not make any finding of dishonesty against the appellant;
(d) the allegations against the appellant in respect of which the Tribunal imposed the 12-month suspension do not appear to have caused any person to suffer financial loss; and
(e) the financial audits of the appellant's trust account for the years ending 30 June 2005 and 30 June 2006 have revealed that her trust account was in order during those periods, and there were no irregularities or other matters in relation to the trust account which should be reported to the respondent.
(a) first, pursuant to s 106(1) of the State Administrative Tribunal Act, the operation of the decision of the Tribunal that the appellant's licence and triennial licence be suspended for 12 months, commencing on 24 November 2006, be stayed until the determination of the appellant's application for leave to appeal from that decision, or further order;
(Page 9)
- (b) secondly, each of the parties has liberty to apply in relation to the stay;
(c) thirdly, the costs of the application be in the cause of the application for leave to appeal in CACV 134 of 2006.
- I will hear counsel as to the precise terms of those orders.
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