Ward v Commissioner for Consumer Protection
[2020] WASC 420
•25 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WARD -v- COMMISSIONER FOR CONSUMER PROTECTION [2020] WASC 420
CORAM: LE MIERE J
HEARD: 25 JUNE 2020
DELIVERED : 25 NOVEMBER 2020
FILE NO/S: GDA 2 of 2020
BETWEEN: JOANNE JILLIAN WARD
Appellant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: MS N OWEN-CONWAY, MEMBER
MS R MOORE, MEMBER
MR B POUND, SESSIONAL MEMBER
Citation: WARD and COMMISSIONER FOR CONSUMER PROTECTION [2019] WASAT 139
File Number : VR 87 of 2019
Catchwords:
Appeal - Real estate - Application for a real estate and business agent's licence - Real Estate and Business Agents Act 1978 (WA) - Section 27 - Fit and proper person to hold a licence - Whether the Tribunal erred in finding that the appellant did not have sufficient practical experience for the issue of a licence - Tribunal's decision is not attended with sufficient doubt to justify the grant of leave to appeal - Appeal dismissed
Legislation:
Land Agents Act 1921 (WA), s 4
Real Estate and Business Agents Act 1978 (WA), s 27
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal refused and appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms D Van Nellestijn |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Arasi v Real Estate and Business Agents Supervisory Board [2010] WASAT 83
Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Bekhit v Department of Transport [2017] WASC 50
'EO' v Mental Health Review Board [2000] WASC 203
Haritos v Commissioner of Taxation (2015) 233 FCR 315
Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232
Morris v Information Commissioner at WA Office [2016] WASC 336
Saunders v The Public Trustee [2015] WASCA 203
Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331
Singh v Medical Board of Australia [2018] WASCA 125
Ward and Commissioner for Consumer Protection [2019] WASAT 139
LE MIERE J:
Summary
The appellant, Ms Joanne Ward, applied to the State Administrative Tribunal (Tribunal) for review of the decision of the respondent, the Commissioner for Consumer Protection (Commissioner), to refuse the appellant's application for the grant of a real estate agent and business agent's licence (licence) pursuant to s 27 of the Real Estate and Business Agents Act 1978 (WA) (REBA Act).
On 7 January 2020 the Tribunal affirmed the decision of the respondent.[1] The Tribunal was not satisfied that the applicant had sufficient practical experience for the issue of a licence pursuant to s 27(1)(b), s 27(2) and sch 1 cl 1(a) of the REBA Act.[2]
[1] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [45].
[2] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [44].
The appellant now seeks leave to appeal against the decision of the Tribunal on the ground that it erred in fact and in law in finding that the appellant did not meet that requirement. The appellant contends that the Tribunal's decision was inconsistent with the REBA Act and against the weight of the evidence.
For the reasons which follow, leave to appeal will be refused and the appeal dismissed.
Decision of Commissioner for Consumer Protection
On 14 February 2019 the appellant applied to the respondent for the grant of a licence under s 27 of the REBA Act. The REBA Act prohibits a person from carrying on business as a real estate agent, a business agent, or both, unless that person holds a licence under the REBA Act and a current triennial certificate in respect of the licence.[3]
[3] Real Estate and Business Agents Act 1978 (WA) s 26.
On 16 May 2019 the respondent refused to grant the appellant a licence. The respondent was not satisfied that the appellant was a 'fit and proper person to hold a licence' for the purposes of s 27(1)(b) of the REBA Act. The criterion that an applicant be 'fit and proper' includes being qualified in accordance with the criteria set out in sch 1 to the REBA Act.[4]
[4] Real Estate and Business Agents Act 1978 (WA) s 27(2).
On 10 June 2019 the appellant lodged an application in the Tribunal for the review of the respondent's decision made on 16 May 2019.
Statutory framework
It is convenient to outline the relevant statutory framework for the grant of a licence before addressing the appellant's ground of appeal, the Tribunal's decision and reasons for decision.
Section 27 of the REBA Act provides, relevantly:
(1)Subject to this Act, a person … who applies to the Commissioner for a licence and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that ‑
a.…
b.[she] is a person of good character and repute and a fit and proper person to hold a licence;
c.…
d.…
(2)In subsection (1)(b) fit and proper includes being qualified in accordance with Schedule 1 but subject to the savings and exceptions provided in this Act.
There are no relevant savings and exceptions provided in the REBA Act for the purposes of this appeal.
The clauses of sch 1 to the REBA Act which are referred to in s 27(2), and which are relevant for the purposes of this appeal, are:
1.Qualifications
A person ‑
(a)who … has had sufficient practical experience in negotiating transactions to enable [her] to carry on the business of an agent satisfactorily…
…
is, subject to this Act, qualified for the grant of a licence.
2.Sufficient practical experience defined
For the purposes of clause 1(a), but without limiting the generality of the provision in that paragraph in respect of practical experience, a person has had sufficient practical experience in negotiating transactions if [she] has, during a period of 2 years immediately preceding [her] application for a licence ‑
(a)lawfully and satisfactorily performed the functions of a sales representative on behalf of a person who lawfully carried out the functions of an agent, during that period or on behalf of a firm which did so[.]
Accordingly, an individual who satisfies cl 2(a) of sch 1 to the REBA Act is deemed to have the sufficient practical experience required under cl 1(a).[5] In turn, that individual is qualified for the purposes of s 27(2) of the REBA Act.
[5] Arasi v Real Estate and Business Agents Supervisory Board [2010] WASAT 83 [26].
State Administrative Tribunal proceeding
The appellant's application in the Tribunal for the review of the respondent's decision contained one ground of appeal. That is, 'that the [respondent] has not made the decision in line with the Real Estate and Business Agents Act 1978'. The Tribunal considered the appellant's ground of appeal, together with her submissions, identifying three issues that required determination.
Issue 1: proper interpretation of cl 2(a) of sch 1 of the REBA Act
The first issue was the proper interpretation of sch 1, cl 2(a). The appellant's contention before the Tribunal was that the proper interpretation of cl 2(a) is that it is not necessary for the 'sufficient practical experience in negotiating transactions' referred to in cl 2(a) to be acquired over or during a period of two years. Instead, cl 2(a) should be read so that the 'sufficient practical experience' had to be obtained 'during' a two year period, and therefore could be obtained in less than a full two year period.[6]
[6] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [7] ‑ [8].
In determining the answer to the first issue, the Tribunal followed the approach adopted in Lampropolous v Real Estate and Business Agents Supervisory Board[7] and Arasi and Real Estate and Business Agents Supervisory Board.[8]The Tribunal found that in order to fall within sch 1, cl 2(a) of the REBA Act, the functions and the activities relied upon by the appellant must have been performed:
(a)lawfully as a registered sales representative;
(b)to a satisfactory standard;
(c)whilst engaged by a licensed real estate agent or firm; and
(d)for a two year period.[9]
[7] Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232.
[8] Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83.
[9] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [21] following Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232 and Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83.
The Tribunal found that sch 1, cl 2(a), read in the context of the schedule and the REBA Act, requires that the 'sufficient practical experience in negotiating transactions' be obtained for a full two year period.[10]
[10] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [8].
The Tribunal reasoned that contextually, cl 2(a) of sch 1 identifies the conduct that meets the cl 1(a) of sch 1 requirement of having 'sufficient practical experience in negotiating transactions to enable [the applicant] to carry on the business of an agent satisfactorily'.[11] The specified time required by cl 2(a) is two years. Citing Lampropolous, the Tribunal found that cl 2(a) is not an alternative to cl 1(a) whereby relevant experience may be acquired in any period under two years.[12] Instead, the Tribunal found that cl 2(a) is a sub-set of cl 1(a). The Tribunal concluded that the appellant had not met this requirement of cl 2(a).
Issue 2: immediate application requirement
[11] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [19].
[12] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [19].
The second issue identified by the Tribunal was whether sch 1, cl 2(a) had any application in circumstances where the appellant did not make her application for a licence 'immediately' after the period in which she alleged she obtained the 'sufficient practical experience'.[13]
[13] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [9].
In respect of the second issue, the Tribunal found that it is a specific requirement of cl 2(a) that an application for a license immediately follow on from the two year period of practical experience.[14] Accordingly, the Tribunal concluded that cl 2(a) had no application in the proceeding because the appellant did not apply for a licence 'immediately' after the conclusion of her role as a sales representative.
Issue 3: interpretation of cl 1(a) of sch 1 of the REBA Act
[14] The Tribunal relied on Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232 and Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83.
The third issue identified by the Tribunal was the proper interpretation of sch 1, cl 1(a) and whether the evidence and information before the Tribunal established that the appellant had practical experience of negotiating transactions, and if so, whether that experience is sufficient to conclude that the appellant is able to carry on the business of an agent to a satisfactory standard.[15]
[15] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [10].
Based on the appellant's evidence, the Tribunal found that under the supervision of a licensee, the appellant had negotiated two real estate transactions in a period of 15.5 months during which she could lawfully negotiate such transactions as a sales representative and had some limited involvement in three other real estate transactions.
The appellant relied on written assertions about additional activities she completed in respect of managing the leases on two co‑owned investment properties. However, the appellant did not provide documentary evidence, nor did she give any oral affirmed evidence before the Tribunal on this matter. The Tribunal found the appellant's written assertions alone were not sufficiently cogent for the Tribunal to be satisfied of the facts asserted.
In respect of the third issue, the Tribunal found that evidence of, at best,[16] five negotiated sales transactions in 15.5 months, supervised by a licensed agent, was patently insufficient to satisfy the Tribunal that the appellant had been enabled by that experience to carry on business as an agent satisfactorily.
[16] The Tribunal referred to the two negotiated transactions that the applicant performed under the supervision of a licensee and three conjunctional transactions that she was involved in to an unidentified degree. See Ward and Commissioner for Consumer Protection [2019] WASAT 139 [34], [42].
The Tribunal concluded that the appellant lacked the necessary depth and breadth of practical experience to find, on the balance of probabilities, that she had sufficient practical experience for the purposes of sch 1, cl 1(a).
The Tribunal's decision
The Tribunal was not satisfied that the appellant met the experience qualifications contained in cl 1(a) of sch 1 of the REBA Act. Consequently, the Tribunal found the appellant was not a 'fit and proper person' to hold an agent's license under s 27(2) of the REBA Act.
The Tribunal found that the correct and preferable decision was to refuse the appellant's application for the grant of a license. The Tribunal therefore affirmed the respondent's decision.
Appeal to this court
An appeal from a decision of the Tribunal is governed by the State Administrative Tribunal Act 2004 (WA). First, a party to a proceeding may appeal from a decision of the Tribunal in a proceeding, but only if the court to which the appeal lies gives leave to appeal.[17] Secondly, the appeal can only be brought on a question of law.[18]
Leave to appeal
[17] State Administrative Tribunal Act 2004 (WA) s 105(1).
[18] State Administrative Tribunal Act 2004 (WA) s 105(2).
In Armstrong v Commissioner for Consumer Protection,[19] Martin CJ (with whom Newnes and Murphy JJA agreed) discussed when leave should be granted on an appeal from a decision of the Tribunal:
It is now well established that leave to appeal from a decision of the Tribunal will be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave, and that there are no rigid or exhaustive guidelines governing the grant of leave [27].
Martin CJ noted that in deciding whether it is in the interests of justice that there be a grant of leave, the observations of Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls[20] are generally applied. Phillips JA observed:
When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible [16].
[19] Armstrong v Commissioner for Consumer Protection [2014] WASCA 71.
[20] Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331.
It follows that a grant of leave is likely when the decision of the Tribunal is attended with sufficient doubt to warrant it being considered by the court and substantial injustice would result if leave was refused, supposing the Tribunal's decision to be wrong.[21] A grant of leave is therefore inextricably connected with the merits of the ground or grounds of appeal.[22]
Appeal only on a question of law
[21] Armstrong v Commissioner for Consumer Protection [2014] WASCA 71; Bekhit v Department of Transport [2017] WASC 50.
[22] Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [28] (Martin CJ).
What constitutes a question of law was considered by Corboy J in Morris v Information Commissioner at WA Office.[23] His Honour at [56] followed what was said by the Full Court of the Federal Court in Haritos v Commissioner of Taxation,[24] which held at [94] that the issue must be approached as one of substance; the court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context and the decision maker's reasons and having considered all of those matters, satisfy itself that there is, in fact, a question of law. In Bekhit v Department of Transport,[25] I followed the approach of the Full Court in Haritos.[26]I propose to follow the same course for the purposes of determining this appeal.
Appeal by way of rehearing
[23] Morris v Information Commissioner at WA Office [2016] WASC 336.
[24] Haritos v Commissioner of Taxation (2015) 233 FCR 315.
[25] Bekhit v Department of Transport [2017] WASC 50.
[26] Bekhit v Department of Transport [2017] WASC 50 [27].
This is an appeal by way of rehearing, rather than a de novo review of the evidence.[27] Accordingly, absent further evidence or a relevant change in the law, this court can only interfere if satisfied that there was error on the part of the Tribunal.[28] While this court has power to admit additional evidence in an appeal, the circumstances in which it will do so are limited.[29] Otherwise, error must be established by reference to the evidence before the Tribunal.
[27] Rules of the Supreme Court 1971 (WA) O 65 r 8.
[28] Singh v Medical Board of Australia [2018] WASCA 125 [44] (Murphy, Mitchell JJA); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J).
[29] Singh v Medical Board of Australia [2018] WASCA 125 [44] (Murphy, Mitchell JJA).
Consideration of appeal
The appellant's sole ground of appeal before this court is that the Tribunal erred in fact and in law in finding that the appellant did not have sufficient practical experience for the issue of a licence. The appellant submits that this decision was inconsistent with the REBA Act and against the weight of the evidence.
Is the decision inconsistent with the REBA Act?
The appellant appears to contend that the Tribunal's decision was inconsistent with the REBA Act on the basis that the Tribunal misinterpreted sch 1, cl 1(a) and sch 1, cl 2(a) of the REBA Act.
The appellant submits, in essence, that the Tribunal's decision was inconsistent with the REBA Act for three reasons. First, the Tribunal impermissibly substituted the word 'for' with 'during' in sch 1, cl 2 of the REBA Act when concluding that the appellant did not satisfy the deeming provision in cl 2(a). Secondly, the Tribunal erred by concluding that cl 2(a) requires that the application for a licence must immediately follow on from the two year period of practical experience. Thirdly, the Tribunal erred by relying upon legislative extracts and case law which related to previous versions of the REBA Act.
Proper interpretation of sch 1, cl 2(a) ‑ 'During a period of 2 years'
The appellant submits that the Tribunal should have found that she satisfied the requirements of sch 1, cl 2(a) as she was engaged as a registered sales representative from 11 February 2016 to 11 June 2017, which was 'during' the two years immediately preceding the date of her application.
The appellant contends that the word 'during' in sch 1, cl 2 requires an applicant to have lawfully and satisfactorily performed the functions outlined in cl 2(a) for a period of time. However, the appellant argues that cl 2 does not stipulate a minimum period for which the applicant must perform those functions. Accordingly, an applicant may satisfy cl 2(a) without performing those functions for a full two year period.
The appellant contends that the Tribunal impermissibly substituted the word 'for' with 'during' in cl 2 when concluding that she did not satisfy the deeming provision. At the hearing of the appeal, the appellant submitted orally that such a substitution has the effect of requiring an applicant to work for the hourly equivalent of a full two year period. That is, an applicant must work for 17,520 hours to satisfy cl 2(a).[30] The appellant contends that such a construction is inconsistent with the text and intent of the REBA Act.
[30] (24 hours x 365 days) x 2 years.
The respondent submits that the Tribunal's conclusion that cl 2(a) requires that the practical experience must be obtained throughout, or for the duration of, a two year period was correct for three reasons.
First, the Tribunal's conclusion that cl 2(a), properly interpreted, requires that the experience be obtained throughout, or for the duration of, a two year period is consistent with the natural and ordinary meaning of the words used in cl 2(a). In support of this submission, the respondent relies upon the definition of the word 'during' in the Macquarie Dictionary and the Oxford English Dictionary to mean 'throughout' or 'in the continuance of'. The respondent notes that the word 'for' is also generally defined to mean 'throughout'. Therefore, the respondent contends that drawing a distinction between 'during' and 'for' does not support the appellant's case.
Secondly, the respondent submits that the Tribunal's conclusion is consistent with the purpose of the REBA Act. The REBA Act repealed the Land Agents Act 1921 (WA) (Land Agents Act), which contains a provision which is expressed in similar terms to sch 1, cl 2(a) of the REBA Act.[31] The respondent contends that Parliament introduced the REBA Act to increase the standard of entry and continuance in the industry and the protection of the public from being put at undue risk by persons regulated under the Land Agents Act.[32] Accordingly, it would be inconsistent with the REBA Act's purportedly protective purpose for the court to accept the appellant's submission that cl 2(a) merely requires an applicant to have performed the duties of a sales representative at any point in time in the two year period immediately preceding the application.
[31] Land Agents Act 1921 (WA) s 4(3)(a)(iii)
[32] Western Australia, Parliamentary Debates, Legislative Assembly, 20 April 1978, 1000, 1002 (Mr O'Neil, Member for East Melville)
Thirdly, the Tribunal's conclusion is consistent with previous case law. The respondent relies upon the decisions of Lampropolous and Arasi in support of this submission. I have set out the approach adopted in Lampropolous and Arasi in my reasons above.
I accept that the Tribunal's reasons contained various references to sch 1, cl 2 of the REBA Act requiring that the experience be obtained 'for' (rather than 'during') a two year period.[33] However, in my opinion, the Tribunal's use of the word 'for' should not be read as the Tribunal suggesting that an applicant would be required to, in effect, perform the functions of a sales representative for every hour of every day for the two years immediately preceding his or her application for a licence. In the context of the Tribunal's reasons, which consistently refer to a two year period and not a longer period of time,[34] I do not accept the appellant's contention that the Tribunal was suggesting that an applicant must perform the relevant functions for a period in excess of eight years. I agree with the respondent's submissions as to the proper interpretation of sch 1, cl 2 of the REBA Act. The Tribunal correctly concluded that cl 2(a) requires that the experience be obtained throughout, or for the duration of, a two year period.
Proper interpretation of sch 1, cl 2(a) ‑ immediacy
[33] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [8], [20] ‑ [21]
[34] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [6], [8], [19], [20], [21], [22].
The appellant submits that, properly interpreted, it is not a specific requirement of sch 1, cl 2(a) for an application for a licence to immediately follow on from the two year period of practical experience. The appellant appears to contend that such a requirement impermissibly limits the generality of the provision in cl 1(a) with respect to practical experience.
I do not accept the appellant's contention. The general requirement of sufficient practical experience in sch 1, cl 1(a) is not confined to the specific requirements of sch 1, cl 2(a).[35] Put differently, an applicant who is unable to satisfy the deeming provision in cl 2(a) may still satisfy the practical experience provision in cl 1(a).
[35] Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83 [26] - [27].
In Lampropolous, Groves DCJ discussed the ambit of cl 1(a) and its interaction with cl 2(a). His Honour observed at [27] and [29]:
While cl 2(a) deems a person engaged as a sales representative for two years immediately preceding [her] application being made as having sufficient 'practical experience' for the purpose of cl 1(a), that is neither a mandatory requirement nor is it the sole criteria for determining the necessary practical experience.
...
Clause 1(a) is in terms of the applicant having '… had sufficient practical experience'. It not pre-conditioned in terms of such experience having to be either 'recent' or 'current'. Practical experience can be experience gained by an applicant over a period of years without it necessarily being current or even recent. An example would be a situation where a person had 10 years full-time experience as a sales representative before going overseas on 12 months holiday and making an application upon his/her return. In those circumstances he/she would not fulfil the cl 2(a) criteria. However, his/her prior experience might be sufficient nevertheless to satisfy cl 1(a) ...
In my opinion, the Tribunal correctly found that sch 1, cl 2(a) had no application in the proceeding as the appellant did not apply for a licence immediately after the conclusion of her role as a sales representative.[36] After finding cl 2(a) had no application, the Tribunal correctly gave consideration as to whether the appellant had sufficient practical experience for the purpose of satisfying cl 1(a).[37]
Proper interpretation of sch 1 ‑ legislative extracts and case law
[36] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [22], [43] - [44].
[37] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [10] ‑ [11], [24] ‑ [32], [42] ‑ [44].
The appellant submits that the Tribunal erred by referring to a superseded version of the REBA Act in its decision. Further, the appellant contends that the Tribunal erred by relying upon the decisions of Lampropolous and Arasi with respect to the proper interpretation of sch 1, cl 1(a) and Sch 1, cl 2(a), as the REBA Act has been amended since those cases were decided.
The respondent submits, and I agree, that the legislative extracts referred to in the Tribunal's reasons for decision relate to the requirements of sch 1, cl 1(a) and sch 1, cl 2(a) as in force at the time of the Tribunal's decision.[38] The respondent agrees that the REBA Act has been amended at various times since Lampropolous and Arasi were decided. However, the respondent submits, and I agree, that cl 1(a) and cl 2(a) have the same wording today as in the REBA Act's nascent form. Accordingly, I find that there was no error in the Tribunal relying upon Lampropolous and Arasi with respect to the proper interpretation of cl 1(a) and cl 2(a).
Against the weight of the evidence
[38] Ward and Commissioner for Consumer Protection [2019] WASAT 139 [17].
The appellant submits that the Tribunal should have been satisfied that she had sufficient practical experience for the purposes of sch 1, cl 1(a), even if the Tribunal found that she did not satisfy the deeming provision in sch 1, cl 2(a). Further, the appellant appears to contend that the Tribunal's decision that she did not satisfy cl 1(a) is against the weight of the evidence.
I have summarised the Tribunal's interpretation of sch 1, cl 1(a) and its application to the appellant in my reasons above. The appellant did not elaborate upon why the Tribunal's finding at [42] of its reasons, that the appellant lacked the necessary depth and breadth of practical experience to satisfy cl 1(a), is against the weight of the evidence.
The appellant is dissatisfied with the finding of the respondent and the Tribunal that she did not have sufficient practical experience for the issue of a licence. However, the relevant finding of the Tribunal does not disclose an error. In considering whether there has been an error, I have afforded weight and respect to the Tribunal's conclusions in relation to matters within its expertise.[39] In my opinion, whether the appellant has sufficient practical experience to justify the grant of a licence is such a matter.[40]
Leave refused and appeal dismissed
[39] 'EO' v Mental Health Review Board [2000] WASC 203 [21] - [22] (Templeman J).
[40] State Administrative Tribunal Act 2004 (WA) s 4 (definition of 'vocational regulatory body'), s 11(4), s 117. See also: State Administrative Tribunal Regulations 2004 (WA) r 4 and sch 1.
For the reasons above, I find that the Tribunal's decision is not attended with sufficient doubt to justify the grant of leave to appeal. Leave to appeal is refused and the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere25 NOVEMBER 2020
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