Commissioner for Consumer Protection v Carey

[2014] WASCA 7

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Vocational Regulation
2. › Real estate agents
3. › Licensing
4. › Renewal of triennial certificate
5. › Whether agent remained of good character and repute and fit and proper person to hold licence
6. › Characterisation of offending conduct underlying convictions
7. › Real Estate and Business Agents Act 1978 (WA), ss 27(1)(b), 31(3)
1. Administrative Law
2. › Judicial review
3. › Irrelevant considerations
4. › Whether failure to bring disciplinary proceedings was irrelevant to assessment of fitness in de novo review
5. › Hearing de novo
6. › Real Estate and Business Agents Act 1978 (WA), s 102(1)
1. Administrative Law
2. › Judicial review
3. › No evidence
4. › Whether primary facts capable of supporting inference drawn by Tribunal
5. › Whether inference that Department of Commerce had confidence in agent's integrity was open on the evidence
1. Administrative Law
2. › Appeals from tribunals
3. › Appeal on question of law
4. › Nature and scope of jurisdiction
5. › Whether appeal by way of rehearing or in nature of judicial review
6. › Power to make substitutive orders
7. › State Administrative Tribunal Act 2004 (WA), s 105

Quick Take

In assessing whether a person remains of good character and repute and a fit and proper person to hold a vocational licence, a tribunal must have regard to the facts and circumstances of the offending conduct as found by the convicting court, not merely the legal elements of the offence. A tribunal's characterisation of offending conduct must be open on the findings of the convicting court, objectively determined from its reasons. The failure of a regulatory body to bring disciplinary proceedings is irrelevant to a de novo assessment of fitness. An inference that a third party had confidence in a person's integrity must be supported by evidence capable of sustaining that inference, and pragmatic commercial reasons for engaging a person do not support such an inference.