Real estate agents or salespersons seeking to challenge a Complaints Assessments Committee's finding of unsatisfactory conduct need now to be aware of a shortened appeal period.
The procedure to appeal a Committee's determination to the Real Estate Agents Disciplinary Tribunal ("the Tribunal") has always been governed by s 111 of the Real Estate Agents Act 2008 ("the Act"). However, with effect 14 November 2018, s 111 has been amended by s 245 of the Tribunal Powers and Procedures Legislation Act 2018.
Prior to the 2018 amendment, the recognised and upheld practice for appealing findings of unsatisfactory conduct made under s 89(2)(b) of the Act had been that the 20 working days appeal period set out in s 111 would not start running until the Committee had also made orders for penalty under s 93 of the Act. Often the penalty hearing and penalty findings occurred quite some time after the Committee's decision that there had been some unsatisfactory conduct. Therefore, findings of unsatisfactory conduct and the orders for penalty were often appealed in a single application, provided that the appeal was made within 20 working days after the date of notice of the penalty finding.
That is no longer the case. Recently, the Tribunal was required to determine the proper interpretation of the amended s 111 which provides that a person affected by a determination of a Committee may appeal to the Disciplinary Tribunal against the determination within 20 working days after the day on which notice of the "relevant decision" is given under ss 81 or 94.
The Tribunal concluded that the amended s 111 must be interpreted as providing that the 20 working days appeal period runs from the day on which notice of the "relevant decision" is given; in each case the conduct finding, or the penalty finding being appealed. The Tribunal's decision effectively confirms that the common practice prior to the 2018 amendment of s 111 is now superseded.
The key message is fairly clear - don't delay any intended appeals against a conduct finding that you are unhappy with. Even if you may want to postpone making a decision about whether (and how vigorously) to appeal an unsatisfactory conduct finding until you know what penalty is subsequently awarded, you should at least take the minimum steps necessary to lodge your appeal against the conduct finding within 20 working days of being notified of it, or risk losing the opportunity to challenge that finding altogether.
Notably, the amendment also introduced s 111(1A), which allows the Tribunal to accept a late appeal no later than 60 working days after the day on which notice of a determination is given to the appellant, but only where the Tribunal is satisfied that "exceptional circumstances" prevented the appeal from being made in time.
The Tribunal's decision has now been appealed to the High Court. If the High Court overturns the Tribunal's decision on appeal, we will let you know in a further brief article. However, the appeal is unlikely to be heard in the High Court until sometime well into next year.
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© McVeagh Fleming 2019
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.