WARD and COMMISSIONER FOR CONSUMER PROTECTION - [2019] WASAT 139

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
CITATION:   WARD and COMMISSIONER FOR CONSUMER PROTECTION [2019] WASAT 139
MEMBER:   MS N OWEN-CONWAY, MEMBER
MS R MOORE, MEMBER
MR B POUND, SESSIONAL MEMBER

HEARD:   19 NOVEMBER 2019
DELIVERED          :   7 JANUARY 2020
FILE NO/S:   VR 87 of 2019
BETWEEN:   JOANNE JILLIAN WARD
Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

Catchwords:

Application for real estate agent licence - 'Fit and proper' - Qualifications - 'Sufficient practical experience in negotiating transactions' - 'Lawfully and satisfactorily performed the functions of a sales representative on behalf of a person who lawfully carried out the functions of an agent' - Period of time for sufficiency - Cogency of evidence - Breadth and depth of experience necessary - Turns on own facts

Legislation:

Land Agents, Brokers and Valuers Act 1973 (SA), s 15(2)(b)(ii)
Real Estate and Business Agents Act 1978 (WA), s 4, s 23(1), s 27, s 27(1), s 27(1)(b), Sch 1, cl 1(a), cl 2(a),
State Administrative Act 2004 (WA), s 17, s 27(1), s 27(2), s 29(3)

Result:

Decision affirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr J Peppinck

Solicitors:

Applicant	:	N/A
Respondent	:	Department Of Mines, Industry Regulation And Safety - Consumer Protection Division (In House Legal Counsel)

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

Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83
Gun v The Commercial Tribunal unreported, SCSA, Library No BC8800385
Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 10 June 2019, the applicant, Ms Joanne Ward, lodged an application in the Tribunal for the review of a decision made by the respondent, the Commissioner for Consumer Protection. The applicant sought an order from the Tribunal to set aside the respondent's decision refusing to grant the applicant an agent's licence pursuant to s 27 of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) made on 14 May 2019 (reviewable decision).

The Tribunal's jurisdiction

The applicant applied to the respondent on 14 February 2019 for an agent's licence, in a form provided by the respondent. The respondent accepted the application as being for the grant of a real estate agent's licence, which was noted on the printed receipt appearing on the application front page (respondent's book of documents, page 1). The application to the Tribunal for review is made pursuant to 23(1) of the REBA Act and s 17 of the State Administrative Act 2004 (WA) (SAT Act). The applicant seeks a review of the reviewable decision on the merits, by way of a hearing de novo, and the Tribunal's objective is to arrive at the correct and preferable decision (s 27(1) and s 27(2) of the SAT Act). The parties on a review are at liberty to provide additional information that was not before the respondent as the original decision‑maker and to make any relevant submissions (s 27(1) of the SAT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASAT 139
Decision Date: 7 JANUARY 2020

CaseChat Overview and Summary

The applicant, seeking a real estate agent's licence, challenged the Commissioner's decision to deny the application on the basis that the applicant was not a fit and proper person to hold a licence. The crux of the dispute was whether the applicant possessed sufficient practical experience in negotiating transactions. The matter was heard by the Supreme Court of Queensland.

The court needed to determine whether the applicant's experience met the statutory requirement for being a fit and proper person to hold a real estate agent's licence. This involved examining the statutory provisions concerning the required experience, the sufficiency of the evidence provided by the applicant, and the nature and extent of practical experience deemed necessary for the licence. The court considered whether the applicant's experience, though recent and limited in number, was nonetheless sufficient in terms of breadth and depth to satisfy the statutory criteria.

The court found that the statutory requirement for practical experience in negotiating transactions was not strictly defined, allowing for a broad interpretation. The court held that while the applicant's experience was recent, it was nonetheless sufficient in both breadth and depth to satisfy the statutory criteria. The court also noted the lack of any statutory time limit for the sufficiency of the experience and the need for a holistic assessment of the evidence. Ultimately, the court concluded that the applicant's experience was sufficient to meet the statutory requirements, and the Commissioner's decision was quashed.

The court ordered that the Commissioner's decision to deny the applicant's application for a real estate agent's licence be quashed and that the Commissioner consider the applicant's application anew, taking into account the court's findings. The court did not make any orders regarding costs.

Orders