1Short title
This Act may be cited as the Auction Sales Act 1973.
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Bill homepageThis Act may be cited as the Auction Sales Act 1973.
This Act or any provisions of the Act shall come into operation on a date or dates to be fixed by proclamation.
[3. Omitted under the Reprints Act 1984 s. 7(4)(f).]
In this Act, unless the context otherwise requires, —
auction, sale by auction, sell by way of auction and expressions of a similar character mean the selling of any property of any kind or description whatsoever by outcry, by what is known as dutch auction by knocking down of hammer, lot, parcel, or by any other mode whereby the highest, the lowest, or any bidder is the purchaser, or whereby the first person who claims the property submitted for sale at a certain price named by the person acting as auctioneer is the purchaser, or whereby there is a competition for the purchase of any property in any way commonly known and understood to be by way of auction;
auctioneer means any person who sells or attempts to sell or offer for sale or resale any property whether the property of the auctioneer or of any other person by way of auction;
cattle means bulls, bullocks, cows, heifers, steers, or calves;
corporation means any body corporate, whether formed or incorporated in or outside the State, and includes a company, a foreign company or a registrable Australian body within the meaning of the Corporations Act 2001 of the Commonwealth;
farm produce means skins, hides, tallow, cereals, grain, potatoes, onions and other vegetables, edible roots and tubers, tobacco, fruit, hay, chaff, dairy produce, live or dead poultry and game, and eggs, but does not include wool;
firm means an unincorporated body of persons (whether consisting of individuals or of corporations or partly of individuals and partly of corporations) registered under the Business Names Registration Act 2011 (Commonwealth);
horses means mares, fillies, foals, geldings or colts;
livestock includes cattle, sheep, pigs, goats, and horses;
mock auction has the meaning given to that term by section 25;
money includes an instrument for the payment of money in any case where the instrument may be paid into a bank;
money received for or on behalf of any person includes money held for or on behalf of any person, whether originally received for or on his behalf or not;
person includes any firm or corporation;
police district means an area established as a police district pursuant to the Police Act 1892;
property includes any right or interest in any property;
sale includes an agreement to sell;
section means section of this Act;
sheep means ewes, wethers, rams or lambs.
[Section 4 amended: No. 10 of 1982 s. 28; No. 10 of 2001 s. 15; No. 6 of 2012 s. 37.]
Nothing in this Act applies to —
any sale authorised by the Minister for Lands under the provisions of the Land Administration Act 1997;
[(b) deleted]
any sale made under the authority of a rule, order, or judgment of the High Court of Australia, the Supreme Court, the District Court, or of any other court having jurisdiction in the State;
any sale under a process of execution issued out of any court;
any sale conducted by or under the authority of the Public Trustee;
any sale of any animal impounded according to law and sold under the laws relating to impounding;
any bazaar or sale of gifts where the whole of the proceeds are devoted for charitable, educational, or church purposes; or
any person who, under or pursuant to any Act, is for the time being authorised to sell by auction without holding an auctioneer’s licence.
The Governor may by Order in Council declare that this Act, or any provision of this Act specified in the Order, shall not apply to any class of business either generally or when conducted in any specified circumstances or part of the State, or to any sale conducted solely for a benevolent or other particular purpose specified in the Order, and may by subsequent Order in Council from time to time revoke or vary such Order in Council.
[Section 5 amended: No. 73 of 1990 s. 45; No. 57 of 1997 s. 20; No. 31 of 1997 s. 141; No. 59 of 2004 s. 141.]
A licence under this Act shall be granted only to a natural person and not to any body of persons or body corporate.
In accordance with the provisions of section 8, a licence may be granted to be used for the benefit of a firm or corporation.
The holder of a licence, and any firm or corporation specified in a licence as that for the benefit of which it is to be used, shall carry on the business of an auctioneer —
in the name or trade name specified in that licence and under no other description;
at or from a place of business specified in that licence;
subject to section 22(5), during the period for which that licence remains in force;
in relation to the class or classes of business specified in or authorised by that licence; and
in accordance with any conditions, limitations or restrictions specified in that licence,
and not otherwise.
Subject to this Act no person shall act as an auctioneer and no person, firm or corporation shall carry on or advertise, notify or state that he or it acts as or carries on the business of, an auctioneer, or that he or it is willing so to act or carry on business, unless —
being a natural person, he is the holder of an auctioneer’s licence; or
in the case of a firm or corporation, a natural person who is —
a member of that firm;
an officer of the corporation; or
an employee of that firm or corporation,
is the holder of an auctioneer’s licence granted to him to be used for the benefit of that firm or corporation.
No person, firm or corporation shall wilfully and falsely represent that he or it as an auctioneer has property for sale by auction.
Any person who or firm or corporation which contravenes any provision of this section commits an offence.
Penalty for this subsection: a fine of $50 000.
[Section 6 amended: No. 60 of 1975 s. 2; No. 25 of 2019 s. 7.]
The licences that may be granted under this Act are —
a general licence;
a restricted licence;
an occasional licence;
an interim licence; and
a provisional licence.
A general licence authorises the holder to act as, and carry on the business of, an auctioneer throughout the State in relation to all classes of business to which this Act applies.
A restricted licence authorises the holder to act as, and carry on the business of, an auctioneer only —
in the part or parts of the State;
in relation to the class or classes of business; and
at the times,
which may be therein specified.
An occasional licence authorises the holder to act as, and carry on the business of, an auctioneer in relation to the occasion and circumstances therein specified but not otherwise.
An interim licence authorises the holder to sell by auction on behalf of the licensed auctioneer named therein during the period of incapacity to which it relates.
A provisional licence authorises the holder to act as an auctioneer under the direct supervision and instruction of the licensed auctioneer named therein but only within the limits of the licence held by the auctioneer so named.
Where it is desired that an auctioneer’s licence shall be used for the benefit of a firm or corporation, and not otherwise, the application —
shall state the name and the principal place of business of that firm or corporation;
shall state the name and the principal place of business of the proposed licensee;
may be made either by the firm or corporation on behalf of the proposed licensee or by the proposed licensee personally;
shall be treated as though made by or on behalf of the firm or corporation which —
may be represented at any hearing;
is liable to pay and may be awarded costs; and
may be required to satisfy the court that it consents to the application.
On an application made under this section the court shall have regard not only to the question as to whether or not the proposed licensee is a fit and proper person to hold a licence but also to the fitness and repute of the firm or corporation for the benefit of which the licence is to be used, and may hear and take into consideration any objection or submission made in relation to that firm or corporation or the persons responsible for its management.
Two or more licences may be granted in favour of the same firm or corporation.
A licence granted pursuant to an application made under this section shall specify the firm or corporation for the benefit of which it is to be used and shall not be used otherwise.
A firm or corporation for the benefit of which a licence has been granted under this section shall not by virtue thereof be entitled to act as an auctioneer, but with that exception and within the limits to which the licence extends any business done under the licence may be transacted in the name of the firm or corporation.
Except with the consent of the firm or corporation named in the licence, no licence granted pursuant to this section may be transferred but the licence may be transferred, subject to this Act, to any person to whom the firm or corporation has agreed to transfer it and the consent of the licensee or his legal personal representative shall not be necessary where the licensee was an employee of that firm or corporation at the time the licence was granted.
Where an interim licence or a provisional licence is granted pursuant to an application made under this section the firm or corporation for the benefit of which the licence is to be used shall be liable and responsible for any act or default of the holder of the licence in the same manner and to the same extent as the licensed auctioneer named in the licence is liable under this Act and shall, indemnify that licensed auctioneer.
Where a licensee is an employee of a firm or corporation named in his licence, that firm or corporation and not the licensee shall be primarily responsible for observing the requirements of this Act but both the licensee and the firm or corporation so named may be charged with and convicted of the like offence.
[9. Deleted: No. 44 of 2016 s. 4.]
For the purposes of a licence other than a general licence the class or classes of business that may be carried on shall be determined by the magistrate and specified in the licence.
A magistrate may define a class of business in whatever terms he thinks fit, or he may specify a prescribed classification.
Regulations may prescribe that dealing in —
any interest in land;
motor vehicles;
wool;
livestock, or any kind of livestock;
second hand articles; or
any other specified kind of commodity or thing,
shall constitute a separate class of business for the purposes of this Act, and any such regulation may be of general or limited application according to time, place or other circumstance.
An application for the grant or renewal of a licence shall be made in the prescribed manner and form to the registrar of the Magistrates Court at the place nearest to the place specified in the application as that in which the applicant proposes to carry on his business, or nearest to the principal place of business specified by the applicant where the applicant proposes to have more than one place of business.
On the application for the grant of a licence, but not in respect of a renewal, 3 character testimonials shall be lodged with the registrar of the court together with the application.
The registrar shall —
endorse on the application particulars of the day appointed for the hearing of the application, which shall be not less than 35 days after the date of the lodging of the application, and of the hour and place of the hearing;
return a copy of the application so endorsed to the proposed licensee or his authorised representative, and to any firm or corporation for the benefit of which the licence sought is to be used or to its authorised representative; and
forward a copy of the application and any accompanying character testimonials forthwith to the senior police officer stationed within the police district in which the principal place of business of the applicant is situate.
An application made under the provisions of section 8, shall be accompanied by the written consent of the firm or corporation for the benefit of which the licence is to be used.
[(5),(5a) deleted]
Where the Commissioner of Police or a person authorised by him, or any other person, desires to object to the grant of a licence he shall lodge with the registrar and serve on the applicant or his authorised representative, at least 7 days before the date appointed for the hearing, a notice stating the objection and the grounds thereof in sufficient detail to enable the applicant to know what he has to answer.
An application for the transfer of a licence shall be endorsed to show clearly the particulars of the licence to which it relates, but in all other respects shall be dealt with as though it were an application for the grant of a licence save that if the proposed licensee is the holder of a current licence no testimonials as to character shall be required.
An application shall be accompanied by the application fee prescribed in relation thereto.
Where the application relates to the grant of an occasional licence or an interim licence the procedure set out in this section shall be followed save that where the Commissioner of Police or a person authorised by him gives his consent the magistrate may grant the application notwithstanding that the requirements of this section as to time have not been observed, but where those requirements have not been observed no person shall be refused the right to be heard to oppose the application by reason only that no notice of objection was served.
[Section 11 amended: No. 60 of 1975 s. 3; No. 46 of 1978 s. 2; No. 59 of 2004 s. 141; No. 44 of 2016 s. 5.]
[12. Deleted: No. 44 of 2016 s. 6.]
An application for an occasional licence shall specify the date upon which, and the place or places where, a proposed sale is to be held and the business conducted.
A person shall not be entitled to the grant of more than 5 occasional licences in respect of a place or places within the same police district in any period of 12 consecutive months.
A person shall not be entitled to hold more than one occasional licence, whether in respect of the same police district or not, at any one time.
An occasional licence is not transferable.
On payment of the prescribed fee, and on being satisfied that the proposed licensee is a fit and proper person to hold an occasional licence and that no other circumstances make it undesirable, the magistrate may grant an occasional licence in relation to the occasion and circumstances specified in the application and which shall be stated in the licence, subject to such conditions, limitations or restrictions as he thinks fit.
An occasional licence shall take effect from the day therein specified, but shall not be granted for a period or periods of more than 7 days in the aggregate or for a place outside the police district.
Where an applicant is the holder of a licence granted to be used for the benefit of a firm or corporation, he shall not be entitled to the grant of an occasional licence which appears to the magistrate likely to relate to the same or a similar class of business unless he satisfies the magistrate that the firm or corporation has consented to the making of the application.
Where a licensed auctioneer is, or will be, incapacitated by reason of illness or other sufficient cause an application may be made to the court in which his licence was granted for the suspension of that licence and the grant of an interim licence to the person named in the application authorising the person so named to sell by auction on behalf of that licensed auctioneer and to act as, and carry on the business of, an auctioneer on his behalf within the limits of the licence held by that licensed auctioneer or to such lesser extent as the magistrate may order.
An application for an interim licence may be made —
by the licensed auctioneer;
by the firm or corporation specified in the licence as that for the benefit of which it is to be used; or
if he is able to satisfy the court that he is acting on behalf of and with the consent of all parties named in the licence sought to be suspended, by the person seeking to be granted the interim licence.
On payment of the prescribed fee, and on being satisfied that the proposed interim licensee is a fit and proper person to hold a licence, that the licensed auctioneer is or will during the relevant time be incapacitated, and that no other circumstances make it undesirable the magistrate may grant an interim licence, subject to such conditions, limitations or restrictions as he thinks fit.
Subject to subsection (5) an interim licence remains in force for such period or periods, not exceeding 3 months in the aggregate, as is or are specified in that licence, and may be renewed from time to time.
Where the auctioneer’s licence to which it relates is surrendered or cancelled, or is suspended otherwise than pursuant to an application made for the purposes of this section, an interim licence shall be deemed to have expired at the same time.
During the period an interim licence is in force the auctioneer’s licence to which it relates shall be suspended, but the licensed auctioneer shall nevertheless be personally liable and responsible for any act or default of the holder of the interim licence in the same manner and to the same extent that he would have been liable had such act been done or such default made by him.
Subject to this Act, —
the holder of a general licence or a restricted licence; or
with the written consent of the holder of that licence, a firm or corporation specified in any such licence as that for the benefit of which it is to be used,
may apply for and obtain a provisional licence with respect to any person employed by him, or by that firm or corporation, who desires to obtain practical instruction in the carrying on of the business of an auctioneer.
On payment of the prescribed fee, and on being satisfied that the proposed trainee is a fit and proper person to hold a licence, the magistrate may grant to the proposed trainee, subject to such conditions, limitations or restrictions as he thinks fit, a licence to act as an auctioneer under the direct supervision and instruction of the licensed auctioneer specified in the application.
A provisional licence —
shall not be granted for a period of more than 2 months and shall take effect from the day therein specified;
shall not be granted with respect to the same person more than 3 times in any calendar year;
shall nominate the licensed auctioneer under whom the trainee is to receive instruction; and
shall not be granted otherwise than within the limits and during the currency of the licence held by the licensed auctioneer therein so nominated.
During the period any provisional licence is in force the licensed auctioneer therein nominated shall be personally liable and responsible for any act or default of the holder of the provisional licence in the same manner and to the same extent that he would have been liable had such act been done or such default made by him.
On an application made by the licensed auctioneer nominated in the provisional licence, the court by which the licence was granted may cancel or suspend a provisional licence for such period and on such conditions as in the circumstances of the case the magistrate thinks fit.
Where the licence of the licensed auctioneer therein nominated is surrendered, cancelled or suspended a provisional licence shall be deemed to have expired at the same time.
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