BETWEEN : CASTLEDALE HOLDINGS PTY LTD (ACN 096 195 069)

THE REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA (INC)

JOHN HENDER, BARBARA TIMMS and BRETT HALVORSON (in their capacities as members of the Professional Standards Tribunal of the Real Estate Institute of Western Australia Inc)

Practice and procedure - Application to strike out or stay action - Action for declarations that plaintiff denied procedural fairness by disciplinary tribunal of association - Extant appeal by plaintiff to appeals board of association - Whether plaintiff has cause of action pending outcome of appeal - Whether action should be stayed pending outcome of appeal - Turns on own facts

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334

Howden v Truth and Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416

Law v Chartered Institute of Patent Agents [1919] 2 Ch 276

Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253

McLeod v Australian Securities and Investments Commission [2002] HCS 37

Queensland Newsagents Federation Ltd v Trade Practices Commission; Ex parte Newsagency Council of Victoria Ltd (1993) 118 ALR 527

R v Marks; Ex parte Australian Building Construction Employees & Builders' Labourers Federation [1981] HCA 33; (1981) 147 CLR 471

1 MASTER NEWNES: This action arises out of disciplinary proceedings instituted by the Executive Committee of the first defendant ("REIWA") against the plaintiff. The plaintiff is a licensed real estate agent and is a member of REIWA. The disciplinary proceedings instituted by the Executive Committee were the subject of a hearing before a tribunal convened under REIWA's articles of association. The second defendants were the members of the tribunal. The tribunal found the complaints made out and imposed fines totalling $10,000 on the plaintiff. In this action, the plaintiff seeks various declarations to the effect that the tribunal denied the plaintiff procedural fairness and that its decision is void.

2 By the application which is before me, the defendants seek an order striking out the plaintiff's claim as an abuse of the process of the Court, or alternatively, seek a stay of the action until an appeal, which has been brought by the plaintiff under REIWA's articles of association, has been dealt with, or until further order.

3 It is necessary, before turning to the specific issues that arise on this application, to say something about the relevant articles of association of REIWA.

4 According to its Objects, REIWA is concerned with protecting and advancing the business interests of real estate and business agents by, among other things, securing co-operation between members, fostering good relations between its members and members of the general public, and improving the standing of its members within the community. It has power under its articles of association to suspend, remove from membership or discipline members.

5 Members are required, by article 36, to adhere to the articles, rules, codes, regulations and by-laws of REIWA. The articles provide, by article 41.2, that, if REIWA receives a complaint from a member, or any other person, that a member has breached any of the rules, articles, codes, regulations or by-laws, the Council or the Executive Committee of REIWA must refer the matter to a Professional Standards Tribunal for hearing.

6 Article 41.3 provides that Professional Standards Tribunals shall be established from time to time by the Council or the Executive Committee and shall be made up of persons nominated by the Council. Upon the hearing of a matter referred to a Professional Standards Tribunal, the tribunal shall have power, among other things, to impose monetary penalties of not more than $10,000 for any breach of an article or rule.

7 The procedure to be followed by a Professional Standards Tribunal is set out in article 41.3.3, as follows:

"The following procedures shall apply with respect to any hearing conducted by a Professional Standards Tribunal pursuant to Article 41:

(a) not less than 14 days before the Professional Standards Tribunal meets to hear the relevant matter the Tribunal shall give to the member to whom the matter relates:

(i) written notice of the nature of the matter to be heard and particulars of the events referred to in Article 41.1 alleged to have occurred;

(ii) copies of any documentary evidence to be considered by the Professional Standards Tribunal at the hearing including, but not limited to, any written complaints by a member of the Institute, the Chief Executive Officer of the Institute, an agent who is not a member of the Institute, a member of the public, the Council or the Executive;

(iii) written notice stating the date, time and place of the hearing and informing the member that the member may attend and speak at the hearing and/or submit to the Professional Standards Tribunal written representations at or prior to the date of the hearing;

(b) at the hearing by the Professional Standards Tribunal, prior to the Tribunal making its determination, the member shall be given an opportunity to make oral representations and the Tribunal shall give due consideration to those oral representations and any written representations submitted by the applicant;

(c) following the hearing by the Professional Standards Tribunal the Tribunal shall deliver its decision and the reasons for that decision in writing. A copy of the decision and the reasons for that decision shall be provided to the member concerned within 14 days of the decision being made."

8 REIWA has issued a Code of Practice for its members. That Code of Practice relevantly provides as follows:

"10.1 In any agency relationship, a member must act in the best interests of his or her principal except where it would be unreasonable or improper to do so

...

10.3 a member must act fairly and honestly.

10.4 a member must not knowingly engage in any misleading or deceptive conduct."

9 The Professional Standards Director of REIWA wrote to the plaintiff by letter dated 13 September 2002 ("the Complaint Letter") advising it that the Executive Committee of REIWA considered the plaintiff may have breached r 10.1, r 10.3 and r 10.4 of the Code of Practice during the course of a proposed real estate transaction relating to a property in Claremont. REIWA advised that the matter would be heard by a Professional Standards Tribunal. According to the Complaint Letter, the nature of the matter to be heard by the tribunal was whether, during the course of the transaction, the plaintiff may have breached r 10.3 and r 10.4 by "informing and/or inferring to the conjunctional agent (Olifents) that the vendors ... had entered into a contract that would preclude purchasers introduced by Olifents from continuing negotiations for the purchase of [the property]". It said a breach of r 10.1 might have occurred if a breach of r 10.3 or r 10.4 was found to have occurred, by denying the vendor the opportunity to obtain a higher sale price for the property.

10 A Professional Standards Tribunal, constituted by the second defendants, convened on 27 September and 11 November 2002 to hear the matter. Written submissions were provided to the tribunal by the plaintiff, the vendors of the property, Mrs O'Sullivan who was the purchaser introduced by the conjunctional agent, Mr Henderson who was the purchaser introduced by the plaintiff, and Olifents, the conjunctional agent. In addition, a Mr Gerald Morgan gave oral evidence under oath on behalf of the plaintiff, and a Mr McKenzie of Olifents was questioned on affirmation by the tribunal and by Mr Morgan on behalf of the plaintiff.

11 The tribunal delivered its decision on 24 February 2003. The tribunal set out its findings in some detail and held that the plaintiff had breached r 10.1, r 10.3 and r 10.4. It fined the plaintiff $4000 for the breach of r 10.1, $3000 for the breach of r 10.3 and $3000 for the breach of r 10.4, a total of $10,000.

12 The plaintiff, by letter dated 7 March 2003, appealed against that decision under article 45 of REIWA's articles of association. It sought:

(a) a declaration that the tribunal should not have embarked upon a hearing when the complaint of Olifents had been withdrawn;

(b) in any event, a determination that [the plaintiff] was not guilty of the allegations the subject of the tribunal decision.

13 The grounds of appeal set out in the letter are extensive. Most of those grounds go to specific findings of the tribunal. Relevantly for the current application, grounds 15 and 16 are as follows:

"15. The allegations made against [the plaintiff] are contained in the letter from [REIWA] to [the plaintiff] dated 13/9/02. The allegations considered and determined by the Tribunal are entirely different, being those which are stated in paragraphs 2.2 and 5 of the Tribunal's decision. As a consequence [the plaintiff] has been denied natural justice.

16. Further the Tribunal has reconfigured the allegations against [the plaintiff] to say that [the plaintiff] conducted itself so as to obtain the full commission on the sale of a property. That is not the allegation originally made against [the plaintiff] and it is not an allegation that was put to [the plaintiff] in the hearing. If that allegation had been properly put to [the plaintiff] then evidence would have been introduced by [the plaintiff] to respond to that fresh allegation. As a consequence [the plaintiff] has been denied natural justice."

14 An Appeals Board has been constituted under REIWA's articles of association and directions hearings have been held, but the appeal has not proceeded to a hearing pending the determination of whether this action is to proceed.

15 On 15 May 2003, some two months after the appeal was lodged, the plaintiff commenced the current action against the defendants. In the statement of claim, the plaintiff alleges, in effect, that in making its findings and determinations, the tribunal went outside the terms of the Complaint Letter in that it recast the complaints against the plaintiff and proceeded to make findings and to impose penalties on the basis of the recast complaints. The plaintiff says that, in the circumstances, the tribunal had no power to hear and determine the recast complaints or to make any of the findings that it made on those complaints. The plaintiff says that, by proceeding in the way that it did, and, in particular, in failing to inform the plaintiff before or during the hearing that it might make adverse findings outside the scope of the Complaint Letter, or the nature of the matters set out in the Complaint Letter, the tribunal denied the plaintiff procedural fairness. The plaintiff claims, among other things, declarations that on a proper construction of REIWA's articles the second defendant had no power to make any of the findings that it did, that the second defendant has denied the plaintiff procedural fairness, and that the findings and the fines imposed on the plaintiff are void and of no effect.

16 The defendants deny that the plaintiff was not accorded procedural fairness and contend that, in any event, an appeal under REIWA's articles of association is the exclusive jurisdiction for any relief the plaintiff may seek. Alternatively, the appeal procedure is part of an overall decision-making process, so that until the appeal has been completed it cannot be said that the plaintiff has been denied procedural fairness. The defendants say that the current action is therefore an abuse of the process of the Court and should be struck out. Alternatively, the defendants say that the action should be stayed until the appeal under the articles has been determined. If it is determined in the plaintiff's favour, this action will be unnecessary.

17 It is necessary first to turn to the articles of association under which the plaintiff's appeal has been brought.

18 The articles provide, by article 41.6, that a member who is penalised by a Professional Standards Tribunal " ... shall have a right of appeal against that ... penalty in accordance with the provisions of article 45 ... ".

45.1 Any person who is given a right to appeal against a decision pursuant to the provisions of these Articles may so appeal by notice in writing addressed to the Chief Executive Officer; such notice of appeal to be lodged with the Chief Executive Officer, together with a written statement of the grounds of that appeal, within fourteen (14) days from the date of the decision appealed against.

45.2 All appeals pursuant to Article 45 shall be heard by an Appeals Board made up of the following persons who shall not have been members of the original decision-making body:

(a) a chairperson, being a legal practitioner under the Legal Practitioners Act 1893 appointed by the President of the Australian Institute of Arbitrators and Mediators, who is a member of that Institute but is not a member of REIWA and is not a licensed real estate agent or sales representative under the Real Estate and Business Agents Act, 1978;

(b) a consumer representative who shall be appointed by the REIWA Council but who is not a licensed real estate agent or sales representative under the Real Estate and Business Agents Act, 1978 and who is not a member of RE1WA;

(c) a person appointed by the RE1WA Council who is a real estate agent licensed under the Real Estate and Business Agents Act, 1978.

The chairperson of the Appeals Board shall be responsible for making all determinations on issues of law. Issues of fact shall be determined by a majority decision of the three members of the Appeals Board.

45.3 Any person appealing pursuant to Article 45 shall pay to the Institute at the time that the appeal is lodged such sum as the Council shall determine from time to time. A notice of appeal shall not have been duly lodged pursuant to Article 45.1 unless and until the required sum is paid to the Institute.

45.4 Any sum of money lodged with the Institute pursuant to Article 45.3 with respect to the hearing of an appeal shall be retained or refunded in whole or in part as determined by the Appeals Board.

45.5 Upon the hearing of an appeal the Appeals Board will have the power to:

(a) uphold the earlier decision and dismiss the appeal;

(b) grant the appeal and make such alternative decision as the Appeals Board deems fit PROVIDED THAT the Appeals Board shall only have the power to make a decision that the body which made the decision appealed from was empowered to make.

(c) make such orders as to the costs of the hearing of the appeal as the Appeals Board considers to be just including, but not limited to, payment of the administrative costs of the Institute relating to the appeal and the costs of the parties to the appeal.

45.6 The following procedures shall apply with respect to the hearing of any appeal by the Appeals Board pursuant to Article 45:

45.6.1 not less than 14 days before the Appeals Board sits to hear the relevant appeal the Chief Executive Officer shall give to each of the parties to the appeal:

(a) written advice of the appeal and a copy of the notice of appeal and grounds of appeal lodged in accordance with Article 45. 1;

(b) copies of any documentary evidence considered by the body which made the decision the subject of the appeal;

(c) written notice stating the date, time and place of the hearing and informing the parties to the appeal that they may attend and speak at the hearing and/or submit to the Appeals Board written representations at or prior the date of the hearing;

45.6.2 at the hearing of the appeal by the Appeals Board, prior to the Appeals Board making its determination, the parties to the appeal shall be given an opportunity to make oral representations and the Appeals Board shall give due consideration to those oral representations and any written representations submitted by the parties to the appeal;

45.6.3 following the hearing of the appeal the Appeals Board shall deliver its decision in writing. A copy of the decision and the reasons for that decision shall be provided to the parties to the appeal concerned within 14 days of the decision being made."

20 The defendants submitted that the appeal procedure provided for an appeal on the merits by way of a full hearing de novo to a body independent of the original decision-maker. The plaintiff has chosen to follow that process and accordingly has accepted both that the decision of the tribunal is valid, albeit the plaintiff contends the decision is erroneous, and that the Appeals Board has jurisdiction to hear and determine the appeal. The defendants submitted that the present action is misconceived because the appeal rights under REIWA's articles provide the exclusive remedy for any breach of procedural fairness, alternatively, because until the plaintiff has exhausted the appeal procedure, so that the decision-making process provided for under the articles is at an end, it cannot be said that the plaintiff has been denied procedural fairness.

21 I should say that I did not understand the defendants also to contend that simply by instituting an appeal under REIWA's articles the plaintiff had thereby given up any right to take proceedings in this Court. In any event, that, in my view, is not the position. A person does not lose a right to challenge a decision made in breach of a requirement of procedural fairness simply because they have lodged an appeal against that decision: Annamunthodo v Oilfields Workers Trade Union [1961] AC 945 at 956, Calvin v Carr (supra) at 593, Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 per Mason J at 115, Ackroyd v Whitehouse (1985) 2 NSWLR 239 per Kirby P at 247 - 248.

22 The plaintiff denied that the Appeals Board has exclusive jurisdiction to provide any redress and contended that only this Court could deal with what it called "the plaintiff's underlying complaints about the conduct of the Tribunal". The plaintiff relied upon three grounds in support of that submission. It argued, first, the Appeals Board had no power to hear the matter de novo; secondly, that the powers of the Appeals Board on an appeal did not enable it to give adequate redress and, thirdly, the disciplinary procedures under article 41 created an apprehension of bias which it was beyond the capacity of the Appeals Board to remedy.

23 It is convenient to deal first with the plaintiff's contention that the proceedings of the tribunal created an apprehension of bias.

24 Counsel for the plaintiff relied upon Carver v Law Society of New South Wales (1998) 43 NSWLR 71. In that case, the Council of the Law Society of New South Wales resolved that a complaint be made to the Legal Services Tribunal alleging unsatisfactory professional conduct on the part of the appellant. The nominated members of the tribunal to hear the matter included a person who had been a member both of the Council of the Law Society and of its professional conduct committee. The appellant sought to set aside the findings of the tribunal, contending that that person's participation as a member of the tribunal gave rise to a reasonable apprehension of bias. The Court of Appeal of New South Wales allowed the appeal. It held that a person who was a member of a professional governing body or its relevant committee when it instituted disciplinary proceedings to be dealt with by a tribunal should not sit on that tribunal on the ground of apprehended bias.

25 Counsel for the plaintiff argued that, in this case, the tribunal acting pursuant to article 41 had acted as both accuser and judge. Initially, I understood that submission to go only to what has been described as the "recast" complaints. That is, that in the course of the hearing the tribunal had reformulated the complaints and then determined them, thereby acting as both accuser and judge. In the course of argument, however, counsel for the plaintiff said that the submission went much further than that. It was the plaintiff's contention that the whole disciplinary procedure under article 41 was inherently flawed, on the basis that it necessarily gave rise to a reasonable apprehension of bias. The plaintiff's complaint, it was said, would have been no different even if the tribunal had (which on the plaintiff's case it had not) dealt solely with the matters set out in the Complaint Letter.

26 I do not accept that in this case, on the material before me, there arises any question of a reasonable apprehension of bias. There is no evidence that any member of the tribunal was a member of the Executive Committee of the second defendant or was involved in any way in the investigation or formulation of the complaint against the plaintiff before it was referred to the tribunal, nor that any member was involved in the decision to refer the matter to the tribunal. The mere fact that the Executive Committee of REIWA nominates the people who are to be the members of the tribunal does not, in my view, give rise to a reasonable apprehension of bias.

27 The other grounds relied upon by the plaintiff relate to the capacity of the Appeals Board to provide the plaintiff with full redress for any denial of procedural fairness which may have occurred in connection with the proceedings of the tribunal.

28 It is clearly established that a decision of an administrative or domestic tribunal reached in breach of the requirements of procedural fairness, although it may, for certain purposes, be "void", it is nevertheless susceptible of an appeal: Calvin v Carr [1979] UKPC 1; [1980] AC 574; Twist (supra) at 116; Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 at 277 per Aickin J (with whom Stephen J agreed).

"Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have 'cured' a defect in natural justice or fairness at first instance. Certainly this view has been taken in a number of cases - notably by the Privy Council ... and by the Supreme Court of Canada ...cf Denton v Auckland City [1969] NZLR 256 and Leary v National Union of Vehicle Builders [1971] Ch 34 where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, although erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal."

30 As I have mentioned, the plaintiff has lodged an appeal under REIWA's articles of association against the decision of the tribunal. As the defendants' case has been put, the first question, it seems to me, is whether the appeal procedure, properly followed, will have the effect of "curing" any failure to afford procedural fairness in the proceedings before the tribunal. If not, it follows, in my view, that the existence of the appeal procedure could not, for that reason alone, found an exclusive jurisdiction to remedy such defects in the proceedings before the tribunal nor could it be said that the appeal procedure constitutes part of an overall decision making process that must be exhausted before it can be said that a person has been denied procedural fairness.

31 The doctrine of "curing" depends upon, among other things, a full hearing of the case on review with an entitlement to present additional evidence: Prescott v Carmody [1993] FCA 377; (1993) 44 FCR 1. An appeal procedure, in order to effect a "cure" of an earlier defect, must involve a hearing de novo at which the person charged has the opportunity to address all matters relevant to guilt and penalty and where the appeal body has full power to substitute its own view for that of the decision-maker appealed against: Gudgeon v Black (1994) 14 WASR 158; Calvin v Carr (supra). A hearing de novo involves the exercise of the original jurisdiction where the complainant starts again and has to make out its case and call its evidence: Harris v Caladine [1991] HCA 9; (1990-1991) 172 CLR 84 at 124; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 620.

32 The conferment of wide powers on an appeal tribunal, including the power to rehear the evidence orally, will not necessarily be enough to ensure that the failure of procedural fairness at first instance will be remedied. In the end, what is required is an examination of the whole hearing process, original and appeal, to determine whether, after it has been gone through, the party has had a fair hearing: Calvin v Carr (supra) at 594.

33 I do not consider it is clear from REIWA's articles that an appeal under article 45 is a hearing de novo that, once it has been completed, will ensure that the plaintiff has had a fair hearing, or that the original hearing and the appeal are simply components of a single hearing process.

34 In the first place, the requirement that, to institute an appeal, the notice of appeal must be accompanied by written grounds of appeal, appears inconsistent with the notion of a hearing de novo. If the appeal is intended to proceed as a hearing de novo it is difficult to see what purpose is served by providing grounds of appeal. There is, moreover, no express entitlement of the appellant to present fresh evidence or to adduce new documents. Under article 45.6, on an appeal the parties are entitled to make "oral representations" and "written representations" to the Appeals Board. It appears from article 45 that it is upon those representations, the notice and grounds of appeal, and copies of the documentary evidence considered by the tribunal, that the decision of the Appeals Board is made.

35 It is true that article 41, dealing with the procedure before the tribunal, also simply refers to the entitlement of a party to make written and oral "representations" but that at the hearing before it the tribunal allowed oral evidence to be given. It may well be that that is consistent with the usual practice of tribunals convened under article 41. But regardless of whether it is the practice of Appeals Boards constituted under article 45 to take the same course, it cannot be said to be clear that there is any entitlement in an appellant to adduce evidence, much less fresh evidence, on the appeal.

36 I should also observe that the right of appeal is, by article 45.3, subject to lodgement of a sum of money by the plaintiff. Whether that sum is retained or refunded, in whole or in part, is a matter in the discretion of the Appeals Board. Presumably that determination is made on the basis of the Appeals Board's view of the merits of the appeal. It is also the case that, under article 45.5(c), on the appeal the plaintiff is exposed, for the first time, to the risk of an adverse costs order.

37 In circumstances where the subject matter of the appeal is disciplinary action against the plaintiff, carrying substantial pecuniary penalties, I have difficulty in seeing how articles 45.3 and 45.5(c) are consistent with the proposition that the appeal process simply constitutes one part of an overall decision-making process which must be exhausted before it can be determined whether the plaintiff has been denied procedural fairness. The fact that the plaintiff must lodge a sum of money (the ultimate fate of which is in the discretion of the Appeals Board), and expose itself to the risk of an adverse order for the costs of the appeal, in order to undertake the appeal clearly suggests that the appeal process is a quite distinct and separate step.

38 I do not, therefore, consider it can be said to be clear that the appeal procedure under article 45 offers a means by which any failure to afford procedural fairness before the tribunal will necessarily be cured, and therefore constitutes the exclusive jurisdiction for relief, or that it constitutes a single process that must be completed before any question of denial of procedural fairness can arise.

39 I might also add that there appears to be a real question as to whether, where there is a right of internal appeal against the decision of an administrative body, the right of appeal is properly to be treated as an exclusive remedy for a failure to provide procedural fairness by the original decision-maker, or whether it merely gives rise to the general discretion of the court to refuse a remedy where an adequate alternative remedy exists: see Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 per Spigelman CJ at 172, Fitzgerald JA (Beazley JA agreeing) at 194 - 197.

40 In my view, the application to strike out the plaintiff's claim must fail.

41 I also do not consider that there should be an interim stay of this action pending the decision of the Appeals Board. In circumstances where it is not clear that the appeal process is necessarily capable of remedying the matters of which the plaintiff complains, it would not be appropriate for this Court to decline to allow this action to proceed and to require the plaintiff first to exhaust the appeal process.

42 In that connection I should say that I was informed by counsel for the defendants that, whatever might be the position strictly under the articles, it was the intention of the Appeals Board to afford the plaintiff a full hearing de novo on the appeal. Whether, however, the Appeals Board is entitled to do so under REIWA's articles might be open to question, but in any event, in the absence of any legal clear entitlement to such a hearing I do not consider that the plaintiff should be compelled to pursue the appeal, on the basis that the nature of the hearing will be in the hands of the Appeals Board, rather than continue the proceeding in this Court.

43 Currently the proceedings before the Appeals Board have been adjourned pending the resolution of this application. It is clearly inappropriate that both proceedings should continue at the same time. I was informed by its counsel that it is not the plaintiff's intention to pursue both proceedings simultaneously, but rather the plaintiff wishes to pursue these proceedings before any further steps are taken before the Appeals Board. I also understand from affidavit material put before me that the Appeals Board proposes to hold those proceedings in abeyance if this action proceeds.

44 In my view the defendants' application should therefore be dismissed. I will hear the parties on costs.