Ward v Commissioner for Consumer Protection - [2020] WASC 420

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…

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.

Continue reading Ward v Commissioner for Consumer Protection

Details

AGLC: Ward v Commissioner for Consumer Protection [2020] WASC 420
Case: [2020] WASC 420
Decision Date: 25 NOVEMBER 2020

CaseChat Overview and Summary

In this case, the appellant, Ward, appealed against a decision of the Tribunal which found that they did not possess sufficient practical experience to be granted a real estate and business agent's licence. The dispute was adjudicated in the Court of Appeal in Western Australia. The appellant's application for a licence under the Real Estate and Business Agents Act 1978 (WA) had been refused by the Tribunal, and the appellant sought to challenge this decision in the Court of Appeal.

The primary legal issue before the court was whether the Tribunal's finding that the appellant did not have sufficient practical experience to hold a licence was correct. The court was required to examine the evidence presented to the Tribunal and determine whether there was any error in the Tribunal's decision. The court also had to consider whether the Tribunal's decision was so flawed as to justify granting leave to appeal.

The court found that the Tribunal had carefully considered the evidence and made a finding that was not attended with sufficient doubt to warrant the grant of leave to appeal. The court held that the Tribunal had correctly assessed the appellant's practical experience and found it to be insufficient for the issue of a licence. The court determined that the Tribunal's decision was based on a proper application of the law and was not erroneous. Consequently, the appeal was dismissed, and the Tribunal's decision stood.

Orders