Real Estate and Business Agents Supervisory Board v LJW

[2011] WASCA 35

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD -v- LJW [2011] WASCA 35

CORAM:   PULLIN JA

BUSS JA
NEWNES JA

HEARD:   11 NOVEMBER 2010

DELIVERED          :   18 FEBRUARY 2011

FILE NO/S:   CACV 17 of 2010

BETWEEN:   REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD

Appellant

AND

LJW
Respondent

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :JUDGE J PRITCHARD (DEPUTY PRESIDENT)

MR G POTTER (SENIOR SESSIONAL MEMBER)

MR M ANDERSON (SENIOR SESSIONAL MEMBER)

Citation  :LJW and REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD [2010] WASAT 11

File No  :VR 139 of 2009

Catchwords:

Administrative law - Decision of State Administrative Tribunal that appellant renew respondent's certificate of registration as real estate sales representative - Whether Tribunal required under s 47(1)(b) of Real Estate and Business Agents Act 1978 (WA) to make discrete findings that respondent 'fit and proper person' and of 'good character and repute' - Whether Tribunal failed to consider requirement of 'good character and repute' - Meaning of 'fit and proper person' and 'good character and repute'

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 47
State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R L Hooker

Respondent:     Ms L B Black

Solicitors:

Appellant:     Real Estate and Business Agents Supervisory Board

Respondent:     Marc Mannes

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 24

Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198

Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740

Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

LJW and Real Estate and Business Agents Supervisory Board [2010] WASAT 11

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Plato Films v Speidel [1961] AC 1090

Re T & Director of Youth & Community Services [1980] 1 NSWLR 392

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426, 26 August 1997)

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

1. PULLIN JA:  I agree with Newnes JA.

2. BUSS JA:  I agree with Newnes JA.

3. NEWNES JA:  This is an appeal from a decision of the State Administrative Tribunal (the Tribunal) setting aside the decision of the appellant, the Real Estate and Business Agents Supervisory Board (the Board), not to renew the respondent's certificate of registration as a real estate sales representative, and ordering the Board to renew that certificate:  LJW and Real Estate and Business Agents Supervisory Board [2010] WASAT 11.

4. The Board requires leave to appeal:  State Administrative Tribunal Act 2004 (WA), s 105(1); and an appeal can only be brought on a question of law: s 105(2). On 9 April 2010, it was ordered that the application for leave to appeal be heard together with the appeal.

Background

1. The respondent first obtained a certificate as a real estate and business sales representative in 1981.  He has worked as a sales representative for periods totalling some 15 years since that time. 

2. In February 2007, the respondent pleaded guilty in the District Court to two offences.  The first offence was that between 1 August 2001 and 4 November 2001 he unlawfully and with intent to injure or annoy his former wife administered a sedative to her.  The second was that on the same occasion he unlawfully and indecently assaulted his former wife by positioning her to expose her vagina and photographing her, which was likely seriously and substantially to degrade or humiliate her

3. In October 2002, the respondent's former wife chanced upon the photographs on the family computer.  She did not, however, make a complaint to police for some time.  On 3 November 2004 the respondent participated in a video record of interview where he made admissions relating to the first offence and he also made admissions that he had administered sedatives to his former wife without her knowledge on five or six occasions during the course of the 10 years prior to 2001.  He said he had administered the sedatives in order to obtain some respite from what he regarded as her unpleasant behaviour.  The respondent was charged with the second offence as a representative charge.

1. The respondent was sentenced to a term of imprisonment of 8 months on the first count and 16 months on the second count, to be served cumulatively.  He was made eligible for parole.  The respondent unsuccessfully appealed against the sentence.  As he was released on bail pending the outcome of the appeal, he did not become eligible for parole until November 2008 (at which time he was released on parole) and his parole period did not conclude until November 2009.

2. The respondent's certificate as a sales representative expired in June 2007.  His application to renew his certificate under the Real Estate and Business Agents Act 1978 (WA) (the Act) was refused. The respondent did not challenge that decision.

3. The respondent applied again in March 2009 to renew his certificate. On 10 August 2009, the Board refused the application. The Board concluded that the respondent was not 'a person of good character and repute and a fit and proper person to hold a certificate', as required by s 47(1)(b) of the Act. The Board reached that view having regard to the respondent's convictions for the offences involving his former wife and what it regarded as a lack of honesty by the respondent in his dealings with the Board.

4. The respondent applied to the Tribunal to review the Board's decision. On that review, the Tribunal was required by s 27 of the State Administrative Tribunal Act 2004 (WA) to conduct a hearing de novo and to produce the correct and preferable decision at the time of the review, based on the material before the Board and any new material put before the Tribunal.

The decision of the Tribunal

1. The Tribunal accepted that the respondent's prior convictions were relevant to the question of whether he was of good character and a fit and proper person to hold a certificate [29]. It did so because the offences occurred while the respondent was the holder of a certificate, they involved dishonesty in the sense of deception, and they were serious offences [30] ‑ [33]. However, the Tribunal considered that notwithstanding the convictions, the respondent was now of good character and a fit and proper person to hold a certificate.

2. The Tribunal found, contrary to the Board's submission, that the respondent had insight into his offending conduct and that his remorse was genuine.  It also noted that more that eight years had passed since the offences were committed and the respondent had not been convicted of any other offence, although it considered the weight of that factor was limited because the respondent had been in prison for 12 months of that period, the offences were serious, and they were not 'one‑off' offences but one offence had been committed over a 10 year period.

3. The Tribunal further accepted that the respondent's circumstances had changed for the better and so had he.  He was no longer in what he had described as a 'very vitriolic and destructive relationship' and he has for some years been in a stable and happy relationship with another woman.  The Tribunal accepted the respondent's evidence that he had changed substantially since the offences.  It accepted that he was more mature, more disciplined and far better at coping with situations.  It found that he was able to engage in mature reflection both as to his personal characteristics and his handling of different situations.

4. The respondent put a number of character references before the Tribunal. Five of the references were from people experienced in the real estate industry or associated industries who had known the respondent in a professional capacity, and another five references were from clients of the respondent. In addition, the Tribunal had before it a reference from a friend of the respondent dealing with his personal qualities, a copy of a reference that one of the respondent's children had provided for his sentencing, and evidence which was given by the woman with whom he was now in a relationship as to his personal qualities. The Tribunal did not place great weight on the latter two because of the close personal relationship but concluded that, apart from the offences, the references all suggested that the respondent had conducted himself in an exemplary manner in the past and there was nothing to raise any doubt about the respondent's honesty or trustworthiness in his professional capacity [66]. The Tribunal noted that the offending had taken place in the context of his former marriage and was directed solely at his former wife, and there was nothing to suggest any likelihood of similar conduct being repeated or of offending conduct in a professional capacity [67].

5. The Tribunal also addressed the contention of the Board that the respondent had not been honest in his dealings with it.  Having reviewed the material relied upon by the Board, the Tribunal was not persuaded that the respondent had been dishonest and declined to place any reliance on that contention.

6. It concluded:

   Having regard to the genuine remorse Mr W has now expressed and his insight into his offending, the changes in his circumstances, and his excellent character references, and to a lesser extent, Mr W's good record during the substantial period of time since the offences were committed, we have reached the view that notwithstanding his prior convictions, Mr W is now of good character and repute and a fit and proper person to hold a certificate [77].

7. The Tribunal set aside the decision of the Board and directed the Board to renew the respondent's certificate of registration as a real estate representative.

Grounds of appeal

1. The grounds of appeal are as follows:

   1.The State Administrative Tribunal (the Tribunal) erred in law in misconstruing and misapplying s 47(1)(b) of the Real Estate and Business Agents Act 1978, in that it:

   a.Failed to distinctly consider whether it was satisfied the respondent is both 'a person of good character and repute' and 'a fit and proper person to hold a certificate of registration' and to make distinct factual findings on its satisfaction of each of those matters; and

   b.merely made a finding which conflated its satisfaction of those matters, namely a conclusion that the Respondent is now of 'good character and repute and a fit and proper person to hold a certificate'.

   2.The Tribunal erred in law in failing to take into account a consideration which it was bound to take into account, thereby affecting its exercise of statutory power, namely whether it was satisfied that the respondent is of 'good character and repute', distinctly to whether he is a 'fit and proper person to hold a certificate'.

2. At the hearing of the appeal, counsel for the Board conceded that the second ground of appeal was simply another way of encapsulating ground 1 (ts 18).

Disposition of the appeal

1. On the threshold issue of whether an appeal lies under s 105(2) of the State Administrative Tribunal Act, I am satisfied that it does.  A ground of appeal which alleges, as the current grounds do, that the Tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40.

2. On the merits of the appeal, it is convenient to turn first to s 47 of the Act, which is as follows:

   (1)Subject to this Act, an individual natural person who applies to the Board for a certificate of registration as a real estate and business sales representative and pays to the Board the prescribed fee for that certificate shall be granted and may hold a certificate of registration if the Board is satisfied that -

   (a)he is of or over the age of 18 years;

   (b)he is a person of good character and repute and a fit and proper person to hold a certificate of registration;

   (c)he understands fully the duties and obligations imposed by this Act on persons involved in negotiating real estate transactions and business transactions.

   (2)In subsection (1)(b) fit and proper includes having such qualification by way of experience or otherwise as is prescribed, or, if no qualification is prescribed, includes having such qualification by way of experience or otherwise as is approved.

3. The Tribunal was therefore required (relevantly) to be satisfied both that the respondent was a person of good character and repute, and that he was a fit and proper person to hold a certificate. Counsel for the Board, however, contended that in this case the Tribunal had conflated the two requirements and failed to give separate consideration to the respondent's character and repute, as distinct from whether he was a fit and proper person to hold a certificate. In doing so, it was submitted, the Tribunal had misconstrued s 47 and, in failing to take into account the respondent's character and repute, had failed to take into account a consideration it was required to take into account.

4. In support of the contention that the Tribunal had conflated the two requirements, counsel placed some emphasis on the use by the Tribunal in its reasons, including various sub‑headings in the reasons, of the composite expression 'good character and repute and a fit and proper person'. Counsel argued that the merging of the two criteria by the Tribunal was also evident from the absence in its reasons for decision of any separate consideration of the respondent's character and repute, and the lack of any discrete finding by the Tribunal as to whether the respondent was a person of good character and repute. Reliance was also placed on the fact that in the Tribunal's consideration of the principles applicable to the requirements of s 47(1)(b), in [25] ‑ [28], the Tribunal referred specifically to the requirement of 'fit and proper' but not to 'good character and repute'. It was further submitted that the discussion in the Tribunal's reasons of the respondent's character references focused only on the issue of honesty and trustworthiness in a professional capacity, which related to the respondent's fitness to hold a certificate rather than his character and repute.

5. It is, I think, plain that the criteria of 'fit and proper' and 'good character and repute' are not entirely discrete.  While they are not identical, they overlap to a significant degree.

6. The expression 'fit and proper' takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities:  Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426, 26 August 1997). When used in connection with an office or vocation it normally comprises the three characteristics of honesty, knowledge and ability in the conduct of that office or vocation: Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127, 156 ‑ 157; Real Estate and Business Agents Supervisory Board v Barnett, (4 ‑ 5). 

7. In Real Estate and Business Agents Supervisory Board v Barnett, Kennedy J (5), in considering the meaning of 'fit and proper' in s 47(1)(b) of the Act, referred to what was said by Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 as follows:

   The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision.  But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442) (76)

8. It is not the case, however, that the requirement of 'good character and repute' is subsumed by that of 'fit and proper'.  The expression 'good character and repute' itself involves two discrete elements.  While 'good character' does not have a precise meaning, it ordinarily refers to a person's moral qualities (whether known to others or not), as opposed to the estimation in which (fairly or unfairly) the person is held by others, that is, their repute:  Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 ‑ 432; Re T & Director of Youth & Community Services [1980] 1 NSWLR 392, 398 ‑ 399. In Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, McHugh J put it as follows:

   In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Reform Commission has called 'disposition ‑ which is something more intrinsic to the individual in question.'  It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person (15).

9. Or as Lord Denning succinctly stated it (albeit, in another context) in Plato Films v Speidel [1961] AC 1090:

   A man's character, it is sometimes said, is what he in fact is whereas his 'reputation' is what other people think he is (1137 ‑ 1138). (original emphasis)

10. I would understand 'good character' and 'repute' respectively to be used in s 47(b)(1) of the Act in their ordinary sense. Thus, a person may be of good repute but, unbeknown to those who hold that opinion, have serious deficiencies in their moral character, and conversely, a person may not be of good repute because of a widespread but mistaken belief that (for instance) he or she is dishonest, but in fact be possessed of good moral qualities. And as Lee J pointed out in Irving v Minister for Immigration (432), a person who has been convicted of a serious crime and thereafter held in contempt in the community nonetheless may show that he or she has reformed and is of good character.  It is, as Miles CJ observed in Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 24, 31, a matter of common experience that a person's character is capable of development over time and that even people who have demonstrated evil character are capable of reform. His Honour pointed out that a whole philosophy of sentencing for serious criminal offences is built on that philosophy.

11. As I have said, in the present case the Tribunal had to be satisfied that the respondent was both 'of good character and repute' and 'a fit and proper person' to hold a certificate.  As I understood its case, the Board did not contest that the Tribunal satisfied itself as to the latter, but says that it 'merged' the two criteria and overlooked the requirement to satisfy itself as to the former.  In my view, there is no merit in the appeal. 

1. I do not think anything can be drawn from the fact that in its reasons for decision the Tribunal used the composite expression 'good character and repute and a fit and proper person'. The Tribunal was simply using that expression as it appears in s 47(1)(b) of the Act. I am unable to see how complaint can be made about that.

2. Nor is any assistance to be derived from the absence of any separate express finding that the respondent was 'of good character and repute'. While it may be desirable as a matter of practice for the Tribunal expressly to make a finding in respect of each of the two elements in s 47(1)(b), a failure to do so does not of itself constitute error. The question is one of substance, not of form. The question is not the manner in which the Tribunal has expressed its findings but whether the Tribunal has satisfied itself as to each of those elements. In my view, on a fair reading of the Tribunal's reasons as a whole it is clear that the Tribunal did satisfy itself as to each element.

3. It is unnecessary to canvass the Tribunal's reasons for decision in any detail.  In its reasons the Tribunal recognised that the offences committed by the respondent, although they did not occur in the course of his work as a real estate representative, were relevant to an assessment of his character ‑ as they clearly were.  They constituted reprehensible conduct which, the Tribunal noted, reflected particularly adversely on the respondent's character.  But the Tribunal expressed itself satisfied that the respondent had reformed, on the basis of the respondent's genuine remorse and contrition, the substantial passage of time since the offences during which he had committed no further offence, the insight he had into his conduct, and his greater maturity in dealing with problems which confronted him.  These were relevant matters in assessing the respondent's character and, in my view, it is plain that the Tribunal had regard to them in that light. 

4. In concluding that the respondent was 'now of good character and repute and a fit and proper person', the Tribunal also expressly took into account the substantial number of character references before it, including the personal reference provided by a friend which, it said, 'spoke highly of [the respondent's] personal qualities'. While a number of the references referred to the respondent's knowledge and ability as a real estate representative, they also attested to his personal qualities and in my view were clearly relevant not only to whether he was a 'fit and proper person' to hold a certificate but also to a determination of the respondent's 'good character and repute'. On the basis of the references the Tribunal was satisfied there was nothing to raise any doubts about the respondent's honesty or to suggest that he was likely to engage in similar conduct or other offending. In so concluding, it is implicit that the Tribunal was satisfied that the respondent was of the 'good character and repute' required by s 47(1)(b) of the Act.

5. Whether or not, on the material before it, the Tribunal should have found that the respondent was of good character and repute is not a matter with which we are concerned.  That is a question of fact and does not give rise to any appealable error.  A Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis:  Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 [146]. An error of law will occur where there was no material before the Tribunal upon which the conclusion could properly be based: Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198, 201; or where the finding is manifestly unreasonable in the sense that no reasonable Tribunal could have made that finding: Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740, 742.

6. The appellant did not seek to contend that the Tribunal had erred in either of those latter respects.  Its case stood or fell on the question of whether the Tribunal turned its mind to the issue of whether the respondent was of good character and repute and satisfied itself as to that.  In my view, the Tribunal did and the appeal must fail.

Conclusion

1. I would refuse leave to appeal.