King-Orsborn v Commissioner for Fair Trading

NCAT Appeal Panel|2022-05-27

Judgment

This is an internal appeal from the decision of the Occupational Division of the NSW Civil and Administrative Tribunal (Tribunal) made on 5 January 2022 in proceedings between Paris King-Orsborn (Appellant) and the Commissioner for Fair Trading (Respondent). The Tribunal affirmed the decision of the Respondent to not issue a Class 1 Licence under the Property and Stock Agents Act 2002 (NSW) to the Appellant.
For the reasons set out below, we dismiss the appeal.

Factual Background

On 19 January 2009, the Appellant was granted Real Estate Agent's Licence number 1611761 (REAL 1611761).
On 22 September 2010, Australian Real Estate Alliance Pty Ltd was granted Corporation Real Estate Licence number 1661133 (Corporate Licence). Australian Real Estate Alliance Pty Ltd held the Corporate Licence from 22 September 2010 to 21 September 2019 (inclusive) when the licence expired.
The Appellant was the director of Australian Real Estate Alliance, however, the Corporation held the Corporate Licence.

The Proceedings between the Parties in the Tribunal

There were various procedural orders made by the Tribunal, which are set out here to indicate the opportunities offered to the Appellant to provide evidence to the Tribunal.
Orders were made on three occasions, on 27 April 2021, 25 June 2021, 25 June 2021 and on 25 August 2021, permitting the Appellant to file further evidence.
The hearing was vacated in June 2021, to allow further time for the Appellant to file additional documents.
On 25 June 2021, the Tribunal ordered that if the Appellant is unable to proceed by way of video hearing, she may apply to have the matter relisted to consider whether it should proceed by face to face hearing.
On 25 August 2021, the matter was heard by Senior Member Isenberg. According to the Transcript provided to us by the Appellant, the Appellant said she did not renew her licence because of personal issues related to her mother's health.
The transcript also reveals that it became apparent that the Appellant had a letter from Timothy John Babbage (Mr Babbage) as to her state of mind at the time she renewed her Corporate Licence. After a number of exchanges, the Tribunal adjourned the hearing part-heard to 22 October 2021 in order to permit the Appellant to provide further evidence about her mother's medical history and evidence from Mr Babbage.
On 5 September 2021, the Appellant provided the Respondent with medical documents from Concord Hospital and a letter from Mr Babbage.
On 24 September 2021, the Respondent informed the Tribunal that the Respondent sought to continue the proceedings on 22 October 2021.
On 28 September 2021, the Tribunal vacated the 22 October 2021 hearing and ordered the matter be determined on the papers filed with the Tribunal within 14 days.
On 20 October 2021, the Tribunal refused the Appellant's request for an in person hearing on the basis that there were no demonstrated exceptional circumstances.
The matter was determined on the papers with the Tribunal handing down its decision on 5 January 2022, being King-Orsborn v Commissioner for Fair Trading [2022] NSWCATOD 1 (Decision).
The Tribunal made the following orders: 1. The decision under review to not issue a class 1 licence to the Applicant is affirmed. 2. The applications for a refund of money paid by the Applicant to the Respondent and for a change in the licence number of a licence issued to the Applicant by the Respondent are refused for lack of jurisdiction.

Relevant legislation

Individuals must be licenced under the PSA Act in order to act as or carry on the business of a real estate agent (s 8). Section 14 sets out the eligibility criteria for a licence. The qualifications required for the issue of a licence are set out in the Property and Stock Agents (Qualifications) Order 2019.
If a licence expires, the holder may apply to have the licence restored under s 25A of the PSA Act: 25A Time period for restoration of licence (1) An application for the restoration of a licence must be made - (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that - (a) in a case where the applicant failed to apply for renewal before the licence expired - the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been surrendered or cancelled must not be restored.
Prior to 23 March 2020 when the PSA Act came into effect, a licence could be restored under s 26 of the Property, Stock and Business Agents Act: 26 Reissue and restoration of a licence or certificate of registration (1) Application may be made for the reissue of a licence or certificate of registration during the current term of the licence or certificate of registration. (2) An application for the reissue of a licence or certificate of registration constitutes an application for a new licence or certificate of registration that is the same as the current licence or certificate of registration, with the new licence to take effect on the expiry of the current licence or certificate of registration. (3) If a licence or certificate of registration expires without an application having been made for its reissue, an application may be made for the restoration of the expired licence or certificate or registration but such an application can only be made within 3 months after the expiry of the licence or certificate of registration.

The Decision

The Tribunal made the following preliminary remarks: I open this consideration by observing that I have made certain allowances in favour of the Applicant as she is not legally trained and so far as I am aware was not assisted by a legally trained person. It also seems to be that the Applicant experiences difficulties both in understanding English and expressing herself in the English language, orally and in writing. [48]
The Tribunal identified the Appellant's argument as she was entitled to a class 1 licence for two main reasons: first, her renewal of the Corporate Licence rather than her individual licence was an inadvertent error and she was protected by s 25A of the PSA Act from such an error. Secondly, the Appellant had held a licence as a real estate agent and auctioneer since 2010 and her prior industry experience should be taken into consideration.
In relation to the first matter, the 'inadvertence' issue, the Appellant relied on the evidence of Mr Babbage and the medical certificates as to her mother's health at the relevant time. We observe that the hearing was adjourned in order for the Appellant to obtain this evidence.
The first medical certificate concerned the Appellant's mother's hospitalisation in May and August 2021 and the second concerned her admission to hospital in August 2017.
The Tribunal rejected the medical certificates on the basis that they were not evidence that the Applicant's mother was in hospital around December 2018 and that neither certificate referred to any negative effect on the Appellant.
As to the evidence from Mr Babbage, the Applicant provided an unsigned unaddressed letter dated 25 August 2021, apparently from Mr Babbage as well as a statutory declaration made 11 September 2021 in the name of Mr Babbage.
The Statutory Declaration was worded as follows I can confirm that Paris King-Orsborn intended to renew her 2018 renewal of Individual real Estate licence in January 2019 as she was offered a position in Real Estate sales for a proposed property redevelopment in the North Sydney area. Can you please condiser(sic) this application in good faith, when assessing her case for reinstatement of the Personal Real Estate licence from January 2019 to the current year.
The Tribunal noted that Mr Babbage provided no evidence as to how or why he formed the opinion as to what the Applicant intended. The Tribunal stated that it had no clear basis for finding that Mr Babbage was informed by the applicant as to her relevant intentions. Further no supporting evidence was provided.
Based on that evidence, the Tribunal was not satisfied that the Appellant intended to renew her Individual Licence when she renewed her Corporate Licence with the Respondent in December 2019.
The Tribunal then turned to consider the 'just and equitable' limb raised in s 25A(b).
The Appellant submitted that she had worked and or held a Full Real Estate Licence and Auctioneers Licence for over ten years, she had had ten years' experience in the industry and that she had completed a course of study required under the PSA Act.
The Tribunal noted that there was no evidence before it as to the nature of the work, if any, carried out by the Appellant from the time she first obtained an Individual Licence in either January 2009 or 2010 until the licence expired in January 2019, merely that the Applicant held a relevant licence.
The Tribunal then considered at length the pathways to a Class 1 licence under the PSA Act. There was no dispute that the PSA Act and the Qualifications Order took effect on 23 March 2020. Two of the pathways required evidence that the Applicant held a Class 1 licence within 12 months before making the application and the other two pathways required that that the Applicant hold a relevant diploma. The Tribunal was satisfied that the Applicant did not hold a Class 1 licence within 12 months before making the application and did not hold a relevant diploma.
The Tribunal was not satisfied that it was just and equitable to restore the class 1 licence sought by the Applicant. [84]
Finally, the Tribunal found that the Tribunal did not have jurisdiction to deal with the refund application made by the Applicant or the Applicant's application to have her licence renumbered.

The Scope and Nature of Internal Appeals

Under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), internal appeals may be made as of right on a question of law, or with the leave of the Appeal Panel, on any other grounds.
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b)) of the Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out a non-exclusive list of questions of law which includes 1. Whether there has been a failure to provide proper reasons 2. Whether the Tribunal identified the wrong issue or asked the wrong question 3. Whether a wrong principle of law had been applied 4. Whether there was a failure to afford procedural fairness 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations 6. Whether the Tribunal took into account an irrelevant consideration 7. Whether there was no evidence to support a finding of fact and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The Appeal Panel stated in Collins v Urban [2014] NSWCATAP 17 that ordinarily it is appropriate to grant leave to appeal only in matters that involve 1. Issues of principle 2. Questions of public importance or matters of administration or policy which might have general application or 3. An injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand or 4. A factual error that was unreasonably arrived at and clearly mistaken or 5. The having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.

The Appeal

On 4 February 2022, the Appellant filed a Notice of Appeal. The Appellant sought that REAL 1611761 be restored and then the Appellant be granted a Class I licence.
The Appellant did not identify any question of law.
Applying Cominos, we have identified possible grounds that may raise a question of law or basis for leave to appeal.
Dealing first with the question of law, the Appellant appears to be asserting that she was denied procedural fairness. The Appellant bases that assertion on first, she is not trained or qualified legal person, secondly, she was not allowed to express herself, thirdly, she was highly stressed during the hearing on 25 August 2021 and finally, she was pushed on irrelevant details in order to suppress more fundamental issues relevant to the matter.
The Appellant said she had 'struggled to delivery this and was hopeful a in person hearing could have been allowed when the applicant had request this prior to the decision January 2021'.
A second possible question of law is the Appellant submitted that the Tribunal applied the wrong law. The Tribunal should have applied the Property Stock and Business Agents Act rather than the Property and Stock Agents Act which came into effect in March 2020.
A basis for leave to appeal may arise from three of the Appellant's submissions. First, that the Tribunal ignored the evidence of the Appellant that first, she had held an individual licence continuously and secondly, she had all the experience and qualifications required to be granted a class 1 licence. Further, the Tribunal ignored or failed to give sufficient weight to the Appellant's evidence that she held a full licence prior to the reform in 23 March 2020 and that the non-renewal was inadvertent.
Secondly, the Appellant submitted that the Tribunal was wrong in holding the view that the Appellant had said she was in a distressed state in December 2018 because her mother was then in hospital.
Thirdly, the Appellant stated in her Notice of Appeal that the Respondent 'at all time concealed … to NCAT that it had already acknowledged the applicants submissions to restored the expired licence and allowing the applicant to restore the expired licence 1611761 in writing to the applicant November 2019'.
The Appellant sought to rely on six documents as new evidence. Documents 1 and 2 relate to the Corporate Licence granted 18 December 2019, about which there is no dispute. The third document is Real Estate Licence number 20266948, which is not relevant to these proceedings.
The fourth document is an email from the Respondent to the Application dated 6 November, which advises the Appellant that if she renews her licence immediately, Fair Trading will not take any further action in respect of the breach of s 9(1) of the Act, that is carrying on the business of a real estate agent without a licence.
The fifth document is a letter dated 1 February 2022 that the Appellant had worked for Hays recruiting experts worldwide with the Facilities Management and Property division in Sydney NSW from October 2017 until January 2020. The sixth document is a letter from Barua Pty Limited dated 8 February 2022 stating that Barua was the developer of a property in Balmain and around the end of 2010 appointed the Appellant to assist in the sale of a unit within the development.
We do not grant leave for the documents 1, 2 and 3 to be relied on, as they are not relevant to these proceedings. We grant leave for the remaining documents to be relied on and give our reasons in relation to them later in this decision.

The Respondent's Reply and Submissions

The Respondent's reply is that the Tribunal did not make an error of law and/or an error of fact, its decision is fair and equitable, as it is the correct and preferable decision based on the evidence presented and the Tribunal provided the Appellant with ample opportunity to present her case.
Furthermore, the Respondent submitted that the Tribunal should not grant leave to appeal as none of the matters set out in Collins apply.
In response to the Appellant's submission that the Tribunal, in effect, denied her procedural fairness as a result of the manner in which the hearing was conducted and in the actions of the Respondent prior to the hearing, the Respondent submits that the Tribunal did not deny the Appellant procedural fairness and natural justice: It is patently clear that the Tribunal gave the Appellant every opportunity to provide any and all material to advance her case. The Appellant did not avail herself of those opportunities and the Tribunal had no choice but to have "regard to the failure by the Applicant to provide documents in accordance with the Tribunal's timetable". … The Appellant further raises in her material that she "did not the hearing 25 August 2021 had enough time nor was aloud or was interrupted and therefor was not able to justly, formality as possible so that the tribunal decision could have been open and transparent when it was not. Ss(3){b){ii) and (iii), and 3(f)" The Respondent submits that it is clear from the entire transcript of the hearing, that the Appellant was allowed to fully explain her position, with the Tribunal making the decision to have the matter part heard to allow the Appellant another opportunity to obtain evidence that would assist in her case. It should also be noted that the Tribunal offered the Appellant an opportunity to adjourn the proceeding (including at any point during the proceedings). Furthermore, the Tribunal "made certain allowances in favour of the Applicant as she is not legally trained and so far as I am aware was not assisted by a legally trained person. It also seems to me that the Applicant experiences difficulties both understanding English and expressing herself in the English language, orally and in writing. For this reason, some of these Reasons are somewhat repetitive". The Respondent submits that the Appellant was afforded procedural fairness. The Tribunal Decision was not prejudiced, the Appellant was given a fair hearing which included requesting further information and allowing the Appellant to clarify issues on several occasions, and the decision to reject the Application was based on logically probative evidence, and lack thereof, from the Appellant.
The Respondent submits that the decision of the Tribunal at first instance correctly dealt with the pathways under the PSA Act, giving correct weight to the evidence.

Consideration

The first possible question of law is whether the Tribunal failed to afford procedural fairness to the Appellant in that 1. the Tribunal did not allow the Appellant to express herself 2. the Appellant was highly stressed in the hearing on 25 August 2021 3. the hearing on 25 August was cut short 4. the Appellant was pushed on irrelevant details 5. an in person hearing could have helped her delivery.
A denial of procedural fairness is an error of law and such a denial raises a question of law (Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347 per Sackar J at [84] citing Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 per Gray ACJ and North J at [8] and Gyles J dissenting in obiter at [67]).
The requirements of procedural fairness depend on the circumstances of the case, the nature of the inquiry, the rules under which the relevant tribunal or decision-maker is acting and the subject matter that is being dealt with: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 94, 98; Kioa v West (1985) 159 CLR 550 at 584-585 per Mason J and 609-610 per Brennan J.
Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 commented, at [37], in respect of procedural fairness that: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.'
We have had close regard to the transcript of the hearing provided by the Appellant in determining whether the Appellant was denied procedural fairness.
On our reading, there were a number of opportunities provided to the appellant to assist her in being heard and in providing all relevant evidence to the hearing.
The transcript at 4.45 records the Senior Member stating '…if we start using legal jargon and you're not technically up on that please stop us and let us know that you're having difficulty following us and we will try and say things in a different manner, is that ok with you'. The Appellant replied 'yes Senior Member'.
At 7.30-45 the Senior Member asked whether the Appellant felt able to conduct the hearing for herself, after the Appellant said that her mother had passed away recently. The Appellant responded that she would proceed. The Senior member replied 'Okay. If at any time you're feeling difficulty, please let me know'.
The Senior Member continued 'you either want to take a short break or an actual adjournment to continue the hearing on another day, please let me know'. The Appellant replied 'yes Senior Member, thank you'.
At 13.12 the Senior Member said that 'if I appear to be going too fast if you feel you've not had an opportunity to say something which is important please feel free to interrupt me'.
At 17.00-18.10 the Appellant was referring to the payment of her Corporate Licence to which the Senior Member responded that that was not relevant as it was not in dispute that the Appellant had made that payment.
At 33.30 the Senior Member asked the Respondent whether he would object to the hearing being adjourned for the Appellant to have the opportunity to put on evidence in relation to her intention at the time she renewed the Corporate Licence and to provide a medical chronology of her mother's illness history during the relevant period. The Respondent did not object and indeed stated that it would like all the relevant information to be before the Tribunal.
The hearing was then adjourned and orders made as set out above for the Appellant to provide further evidence as to these matters.
At [48] of the decision, the Tribunal stated it had "made certain allowances in favour of the Applicant as she is not legally trained and so far as I am aware was not assisted by a legally trained person. It also seems to me that the Applicant experiences difficulties both understanding English and expressing herself in the English language, orally and in writing. For this reason, some of these Reasons are somewhat repetitive".
Based on the transcript and the Decision, we reject the claim the Appellant was not allowed to express herself.
The Appellant has not provided further information as to the details she considered irrelevant. The transcript does not record the Appellant being pressed on any irrelevant details. We reject that claim.
It was clear from the transcript that the Appellant was stressed in the hearing on 25 August 2021, however the Tribunal gave her a number of opportunities to take a break or have the proceedings adjourned.
The hearing was not 'cut short'; it was adjourned. The hearing was adjourned solely to benefit the Appellant and allow her to put on evidence to support her case.
At [39] reasons were given by the Tribunal for rejecting the Appellant's application for an in-person hearing. There is no evidence before us to doubt the decision made by the Tribunal to refuse her request for an in person hearing.
We are satisfied that the Tribunal did not deny procedural fairness to the Appellant or that the Appellant was subject to any practical injustice..
The second potential question of law is whether the Tribunal applied the wrong law. The Appellant submits that the Tribunal should have applied the Property Stock and Business Agents Act rather than the Property and Stock Agents Act which came into effect in March 2020.
The Appellant's application was made on 30 November 2020. It follows that the Tribunal applied the correct law.
Turning then to whether leave should be granted to the Appellant to appeal on any other grounds.
First, the Appellant submits that the Tribunal ignored the evidence of the Appellant that first, she had held an individual licence continuously, secondly, she had all the experience and qualification required to be granted a class 1 licence because the Appellant held a full licence before to the reform on 23 March 2020 and finally, that the non-renewal was inadvertent.
The Tribunal found that there was no evidence to support her assertions that she had held an individual licence continuously and had the relevant experience and qualifications.
The Tribunal dealt extensively with the Appellant's evidence in this regard [55-69, 87-100]. Indeed, the Tribunal adjourned the hearing part heard in order for that evidence to be obtained by the Tribunal. We reject that submission.
Secondly, the Appellant submitted that the Tribunal was wrong in holding the view that the Appellant had said she was in a distressed state in December 2018 because her mother was then in hospital.
The Appellant told us that she was distressed in August 2021 because her mother had recently died and was not distressed in December 2018 because of her mother's health.
The transcript of the hearing at 25.00 reveals the Appellant said I didn't respond at the time because my mother was admitted into Hospital in May ahm, in Concord Hospital and she was in ICU and she come out and she went back in I had to deal with a lot of personal issue with my mum and although not that's probably an excuse for the court but I accept its my fault but if its allow to provide that evidence to the court if it required I don't know if the Respondent may not needs it I don't know.
The transcript clearly records that the Tribunal was correct and we reject the Appellant's submissions.
The third matter on which leave is required is that the Respondent 'at all time concealed … to NCAT that it had already acknowledged the applicants submissions to restored the expired licence and allowing the applicant to restore the expired licence 1611761 in writing to the applicant November 2019'.
We asked the Appellant to provide the documents which supported her claim that the respondent concealed to the Tribunal that it had restored the expired licence before 23 March 2020.
The Appellant referred to four documents in support. First, an email dated 6 November 2019 from the Respondent to the Appellant which identified that her licence had not been renewed and advised that if she renewed it in two business days, she would not be the subject of penalty under the Act. That email does not support the Appellant's assertion.
The second email from the respondent to the Appellant, dated 18 November 2019 concerned the Corporate Licence and accordingly does not support the Appellant's assertion in relation to her individual licence.
The two emails dated 15 November 2019 are not within the materials before the Tribunal.
The Respondent referred us to correspondence which supported that the Appellant had not been granted a Class 1 Licence. Indeed, had it been the case that a licence had been granted, there would be no appeal.
We reject the submission by the Appellant and reject any suggestion that the respondent has acted improperly in regard to these proceedings.
We refuse leave to appeal on the three matters we have identified. They are not supported by the evidence or the decision of the Tribunal.

Orders 1. Leave to appeal refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2022

Property, Stock and Business Agents Act 2002(NSW)

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