Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jamal v Commissioner for Fair Trading [2020] NSWCATOD 99 Hearing dates: 24 July 2020 Date of orders: 1 September 2020 Decision date: 01 September 2020 Jurisdiction: Occupational Division Before: J McAteer Senior Member Decision: (1) The respondent's decision to refuse the applicant's application for an Individual Real Estate Licence on 31 October 2019 and confirmed on 16 December 2019 is set aside. (2) In substitution of that decision the respondent is to issue the applicant an Individual Real Estate Licence. Catchwords: ADMINISTRATIVE Law – Real Estate Licence - Property Stock and Business Agents Act – Fit and proper person – Applicant subject to good behaviour bond- Period of supervision suspended - Criminal convictions – Serious Criminal past- Nature of offences – whether full disclosure made Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Licencing and Registration (Uniform Procedures) Act 2000 Property and Stock Agents Act 2002 Property Stock and Business Agents Act 2002 (repealed) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Giri v Roads and Maritime Services [2012] NSWADT 241 Harrias v Commissioner for Fair Trading NSW Office of Fair Trading [2006] NSWADT 203 Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 Lloyd v Director General Department of Transport [2001] NSWADT 201 McEvoy v Director-General of the Department of Fair Trading [2000]NSWLEC McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258 McKenzie v Director General, Department of Transport [2000] NSWADT 126 Offner v Commissioner for Fair Trading, Department of Finance, Service and Innovation [2018] NSWCATOD 22 Parvin v Commissioner for Fair Trading [2005] NSWADT 34 Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Saadieh v Director General Department of Transport [1999] NSWADT 68 Trlin v Department of Fair Trading [1999] NSWADT 72 Texts Cited: Nil Category: Principal judgment Parties: Noureddean Jamal (Applicant) Commissioner for Fair Trading, Department for Customer Service (Respondent) Representation: Counsel: P Lange (Applicant) Solicitors: Bannisters Lawyers (Applicant) Legal Services for Fair Trading (Respondent) File Number(s): 2020/00019269 Publication restriction: Nil REASONS FOR DECISION 1. This is an application for a review of an administrative decision of the Commissioner NSW Fair Trading ('the Commissioner') in respect of the applicant's application for an individual Real Estate Agent's Licence. 2. The legislation which governs the application to which the administrative decision relates is the Property and Stock Agents Act 2002 (the PSA Act). At the time of the decision on 31 October 2019 and Internal Review on 16 December 2019 the legislation was called the Property Stock and Business Agents Act 2002, (the PSBA Act), the title having since been amended with the most recent changes to some provisions of the Act. 3. After considering all of the evidence and material filed during the course of these proceedings, for the reasons set out below the Tribunal finds that the applicant has (as at the hearing date) established that he is a fit and proper person to be issued with a Real Estate Licence under the PSA Act. In that regard based on the decision dated 31 October 2019 and confirmed on internal review on 16 December 2019, the correct and preferable decision is for the Tribunal to set aside the decision of the respondent. Background 1. The applicant lodged an application for an Individual Licence in the category of 'Real Estate Agent', with the respondent agency on 10 September 2019. By way of background, the applicant had previously held a Real Estate Agent's licence from 3 May 2017 until 2 May 2019, after which time the licence lapsed. 2. As part of the initial licence application in 2017, the applicant disclosed to the respondent his criminal history at that time, being an offence in relation to the supply of a prohibited drug committed in late 2012. The respondent's delegate considered that matter and determined that the applicant was (in 2017) a fit and proper person to be issued with a licence. The applicant was sentenced to a three year custodial sentence for that offence and was paroled after 18 months. It appears that the delegate made the finding and issued the licence predominantly on the basis that the sentence arising from that offence was completed on 25 September 2015, and that it was not an offence of dishonesty. No specific submissions were provided on this point. 3. In the current application, the respondent's refusal appears to have been based on two issues. One being that the more recent offences (for which the applicant was convicted on 8 May 2019) were not disclosed by the applicant to Fair Trading at that time, and, two, that the applicant is still under the terms of his Bond / sentence for the May 2019 convictions. The May 2019 convictions relate to offences in the nature of Common Assault (in a domestic violence context) and a threat to Distribute intimate image without consent. I will return to these matters in more detail below. 4. It is essentially for the two reasons set out in the paragraph above that the respondent submits (and found) that the applicant was not a fit and proper person to hold the licence. 5. The applicant's case is that he was under no legal or ethical obligation to disclose the 8 May 2019 convictions until he lodged his application on 10 September 2019. As at 8 May 2019 the applicant had no business with the respondent and was under no duty or obligation therein. The applicant's case also relies on a submission that, based on an analysis of the relevant cases and the nature of his recent offending, the fact that he remains under a Bond should not create a finding that he is not a fit and proper person to hold the relevant licence when all relevant matters are considered. The application 1. The respondent dealt with the current application by considering the information provided by the applicant. At Item 10 of his application, completed 10 September 2019, the applicant disclosed (correctly) that he had been convicted in NSW or elsewhere of an offence that was recorded in the last 10 years. The Form stated above the 10 'Disclosure Questions' at item 10 the following: If you answer Yes to any of the following questions, please provide full details on a separate sheet. 1. The applicant attached a handwritten letter which stated: 'To answer Question 10.1, I have been convicted of offences relating to domestic violence. I was convicted on the 8/5/2019 for common assault charges relating to domestic violence and the result of this, I was issued with a 2 year community corrections order and 150 hours of community service … In my previous application I have also informed you of driving offences and deemed supply offence…' 1. On 2 October 2019 the respondent wrote to the applicant requesting an explanation as to why he had not apparently disclosed his most recent offences. While the letter (which takes the form of a Notice under s 14 of the Licencing and Registration (Uniform Procedures) Act 2000) acknowledges disclosure of offences in the last 10 years, and also makes reference that a brief explanation was provided, the Notice goes on to state: * An explanation as to why you did not provide details of the above listed offences in your application for a real estate licence; * An explanation of the circumstances leading to and surrounding the offences; * References from referees who are aware of your criminal history and who can attest to your character, including at least one recent work related reference. 1. The applicant responded with a one page typed letter on 14 October 2019 further addressing the matters raised by the respondent. The respondent's delegate refused the application on 31 October 2019 on the basis that the applicant was not considered to be a fit and proper person to hold the licence. The decision the Notice refers to the delegate's finding that: In view of the nature of the offences committed by Mr Jamal, and the fact that Mr Jamal is subject to a Community Correction Order, I as delegate of the Secretary cannot be satisfied that Mr Jamal is a fit and proper person to hold a licence. 1. The applicant applied for an Internal Review of this decision on 27 November 2019 and provided a letter of the same date from the officer supervising the applicant's sentence, in support of the review. 2. On 16 December 2019 the reviewer affirmed the original decision that the applicant was not a fit and proper person to hold the licence because: (a) Mr Jamal was convicted on 8 May 2019 of the 2018 offences and 24 September 2012 offences of supply prohibited drug where he was sentenced to 3 years imprisonment (b) Mr Jamal is still subject to a Community Corrections Order with conditions until 7 May 2021 for the 2018 offences. 1. The reviewer stated the following in the Statement of Reasons at page 3 paragraph [4] that: It is my reasonable belief that the legislature has considered that persons convicted of serious offences resulting in sentences including a custodial order, including one of bond or conditional release, (such as an intensive correctional order) will not be considered fit and proper to hold a licence or authority until they have been released from the order and sufficient time has passed to show an appropriate reformation of good character. 1. From an analysis of the documents filed under Section 58 of the Administrative Decisions Review Act 1997, it appears that the two decisions predominately focused on the fact that the applicant was still serving his sentence on one of the criminal convictions. Even if that analysis is incorrect, that ground was enough for the licence to be refused, and this is clear from both the respondent's initial decision and Internal Review. Legislative Background 1. In dealing with the substantive part of the application the respondent referred to the requirement under Section 14 (1) (b) of the PSA Act. 14 Eligibility for licence or certificate of registration (1) A natural person is eligible to hold a licence only if the Secretary is satisfied that the person: (a) is at least 18 years of age, and (b) is a fit and proper person to hold a licence and each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (c) has the qualifications required for the issue of the licence, and (d) is not a disqualified person, and (e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence. (Emphasis added) Application before the Tribunal 1. The application for review before the Tribunal was filed on 20 January 2020. As the applicant was notified of the decision on 17 December 2019, the application was received a few days beyond the statutory 28 day period for lodging the administrative review application. As the respondent did not press the lateness, the matter had been prepared and had proceeded to hearing without the issue being previously identified, and the applicant gave a reasonable explanation concerning the delay, being the holiday period delaying the matter by a few days on giving instructions, the Tribunal determined of its own motion to consider the matter. Noting all of the matters outlined above, the Tribunal determined that it was in the interests of justice to consider the issue and extended time to lodge the application under s 41 of the Civil and Administrative Tribunal Act 2013, to 20 January 2020. Jurisdiction 1. The decision under review is a reviewable decision in accordance with s 27 of the PSA Act. 27 Administrative review by NCAT A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Secretary— (a) a decision refusing to grant a licence or certificate of registration to the person (including such a decision pursuant to an application for the reissue or restoration of a licence or certificate of registration), (b) a decision to impose a condition on a licence or certificate of of the person. 1. The Tribunal's jurisdiction is enlivened by s 27 (a). The Tribunal also notes that as per the s 41 order above, the application has now been received within time. Administrative Review 1. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law. It is well established that, in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409. The Hearing 1. The hearing was conducted by telephone due to the COVID-19 pandemic hearing arrangements. No person gave evidence in the hearing as the applicant and his witnesses were not required for cross examination. A number of items of material were tendered and received without objection. 2. The applicant filed the following material without objection: * Application for Administrative Review dated 20 January 2020 (Exhibit A 1). * Affidavit of James Jepihcott affirmed 29 May 2020 with annexures 1 – 4 inclusive (Exhibit A 2). * Affidavit of Christopher Dionysatos sworn 29 May 2020 (Exhibit A-3). * Affidavit of Sonny Kianou sworn 29 May 2020 (Exhibit A-4). * Affidavit of Dimitrios Dionysatos sworn 28 May 2020 (Exhibit A-5). * Affidavit of Krenalin Moodley sworn 29 May 2020. * Written submissions dated 24 June 2020. 1. The respondent filed the following material: * Documents under section 58 of the ADR Act 1997 comprising schedule of documents and 53 folios (Exhibit R 1). * Additional Documents filed 16 July 2020 comprising 39 folios (Exhibit R-2). * Written Submissions dated 16 July 2020. 1. The central issue in the current proceedings is whether the applicant satisfies the requirement that he is a fit and proper person to hold the licence. Hearing Applicant's evidence / submissions 1. The applicant's affidavits were received without objection. The applicant's representative submitted that the respondent's contention that, as the applicant remains under the period of supervision following conviction, that circumstance equates to him not being fit and proper to carry out the function granted by the licence, is misplaced. The applicant submitted that there is no statutory basis for such a view and, unlike disqualified persons, the factors taken into account by a sentencing criminal court are not matters relevant to the exercise undertaken by the administrator (the respondent). 2. The applicant submitted that a criminal court takes into account factors including punishment, deterrence, rehabilitation and denunciation in determining the appropriate sentence under the Crimes (Sentencing Procedure) Act 1999. The applicant submitted that none of those factors were relevant to the ability of the licence holder to carry out the functions grated under the licence. 3. The applicant relied on the case of Harries v Commissioner for Fair Trading NSW Office of Fair Trading [2006] NSWADT 203 as authority for the proposition that the jurisdiction of the Tribunal in such matters is not to punish an applicant but to protect the public. At [ 21 ] of Harries the Administrative Decisions Tribunal (ADT) observed: 21 The Commissioner also asserts that Mr Harries is not a fit and proper person to hold the licence sought. The term "fit and proper" has been defined in a number of cases. The leading case of Hughes and Vale v State of New South Wales [1955] HCA 28; (1995) 93 CLR 127 establishes the three characteristics of "fit and proper" as honesty, knowledge and ability. The decision as to whether or not to grant a person a licence must be exercised keeping in mind the activities in which the person will be engaged if the licence is granted Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. The Tribunal's jurisdiction is not to punish the offender but to protect the public. See Law Society of New South Wales and Bannister (Supreme Court of New South Wales Court of Appeal 27 August 1993). 1. Reference was also made to the case of Hunt v Director General Department if Services Technology and Administration [2010] NSWADT 186 at [22]: 22 On the basis of my findings, Mr Hunt remains a disqualified person and, by reason of paragraph 14(3)(d) of the Act, he is not eligible for the grant of a certificate of registration as a real estate salesperson. I note that in the Tribunal's earlier decision no reference was made to the decision of the Appeal Panel in O'Connor (supra). That decision, in my opinion, also provides guidance on the approach that is to be taken where an applicant for an authority under the Act has been convicted of a dishonesty offence. That approach is to first and foremost determine the question as to whether the discretion in sub-section 16(2) of the Act should be exercised. If the discretion is exercised in favour of the applicant, then, subject to the facts in each case, consideration of the applicant's fitness and propriety may nevertheless remain an issue for determination. As I have mentioned, it is in this context that conduct of the applicant subsequent to the conduct that constituted the dishonesty offence may be a relevant matter to take into account. 1. In Hunt the Tribunal observed that the applicant was a disqualified person under the PSBA Act, in that he had been convicted of an offence involving dishonesty. In the current matter, neither occasion of offending involved dishonesty, even though criminality of any manner could call into question a person's character, integrity, and, depending upon the circumstances, honesty. The applicant submitted that the relevant test for the Tribunal for these cases was to take into account all of the relevant matters that had transpired since the offending. The applicant submitted that there is authority from the Tribunal that, even with a recent bad record, an applicant could be regarded as a fit and proper person for the purposes of holding the relevant licence. Reference was made to the observations of O'Conner DCJ in the case of Parvin v Commissioner for Fair Trading [2005] NSWADT 34 at [18]. 18 On the basis of the strong testimonial evidence presented, I am satisfied that, despite his recent bad record, Mr Parvin can now be regarded as a fit and proper person to hold a licence or certificate. On the other hand I agree with the Commissioner that the other ground for refusal remains relevant; and his offences should not, at this point, be ignored. Mr Parvin has committed serious offences involving dishonesty, albeit unconnected with real estate work. The question of his trustworthiness and his integrity is involved. 1. The applicant submitted that there was authority for the approach that the Tribunal should take in determining whether he was fit and proper to hold the licence. When dealing with the adverse matters (the court findings) the applicant said that the Tribunal should look to the nature, seriousness and frequency of the offending for which the finding was made. In addition, the Tribunal should look to the nature, seriousness and frequency of any complaints made about the person in carrying out their occupation. These matters were submitted as being positive for the applicant. The recent offending 1. The applicant submitted that these offences were not disqualifying offences, and, serious though they were, the circumstances of the offending placed them toward the lower end of objective gravity for those offences. There were three assaults which occurred in circumstances where the applicant and the victim had been arguing. In each instance both parties appear to have been protagonists in physical actions. The applicant characterised the recent offending in the manner described below. 2. In respect of the December 2017 offence the applicant and the victim had been arguing and the applicant sought to distance himself from the victim by going into a bathroom. The victim then forced her way into that bathroom and the applicant tried to close the door. The assault involved the use by the applicant of a hand towel to strike the victim with a view to having her leave the bathroom. The applicant submitted that the lack of any attempt by him to strike any physical blow (other than using the soft towel) is significant. 3. The March 2018 offence concerned the applicant and the victim arguing about another woman and the victim grabbing hold of the applicant's necklace and pulling him forward causing it to break. The applicant then pushed the victim away and she fell on the ground. 4. In respect of the third assault, it occurred following a meal and drinks on licensed premises. The parties had been arguing about fidelity and the applicant stood up and said he was leaving and went to pay the bill. During this time the victim tried to continue the argument. The victim followed the applicant to a lift to leave the premises. As the applicant entered the lift the victim tried to come in after him and continue the argument further. The applicant held his hand out to stop the victim entering. The victim kept trying to enter the lift and the applicant slapped her with his hand once to the left cheek. The victim got in to the lift and travelled with the applicant and eventually got in his car. The victim kept arguing with the applicant and while they were driving she said that he deserved to be spat on. The applicant then hit the victim to the top of the head. 5. The applicant again submitted that this matter was of limited objective seriousness and that, contrary to the prosecution submission, the Magistrate did not accept the submission that these matters are serious examples of common assault. He found that they were appreciably less serious examples of this sort of offence. 6. In respect of the final offence which related to threatening to send an intimate image of the victim to a third party, the applicant submitted that this too was towards the lower end of objective gravity. In the agreed facts the offence was described as: The victim stood in the doorway to the premises preventing the [applicant] from leaving, while arguing with him. The [applicant] said: 'I am going to put all these naked pictures and videos of you online. You f------ played me." 1. The applicant reproduced in evidence the observations of the sentencing Magistrate who stated at sentencing: It is however, a less serious example. It was simply – and I do accept to some extent a throwaway line during the course of a heated argument. 1. The applicant submitted that the agreed facts noted that 'No intimate images were ultimately distributed or published'. 2. The applicant made submissions about the sentencing for these four offences (the recent offences) and his conduct and character overall in respect of his ability to carry out the functions conferred by the licence. 3. The applicant referred to the pre-sentence report where the author observed that the applicant should have been smarter and mature enough to walk away from the relationship knowing that it was not a healthy relationship, and that he had claimed responsibility for his actions and was concerned about the victim. The pre-sentence report referred to the applicant's insight into his offending behaviour but, as the behaviour only related to the prior relationship, no professional intervention was necessary. 4. The applicant submitted that these offences occurred over two years prior to his character being assessed by the Tribunal. In that time it was submitted that he had led a blameless life and had not come to attention for any other domestic violence related matters prior to or since the 2018 offences. 5. The applicant's character evidence supported his application. Mr C Dionysatos, a colleague, had known the applicant for 15 years and talked about his hard working nature. The witness also referred to both the earlier 2011 offences (drug related) and the recent offending. He said that upon release from prison in 2014 the applicant had got on with his life by trying to advance himself. The witness referred to the applicant's subsequent work in the real estate industry and being a client of the company which provided services to the applicant's business enterprise in the real estate / property area. 6. The witness provided evidence about the applicant's professional life and provided evidence that (in his opinion) the applicant was truthful, forthright and not interested in deception or cheating others. The witness also gave character evidence in the Local Court concerning the recent offences. The witness had exhibited a high level of trust towards the applicant and this had not been jeopardised in any manner by the applicant's subsequent actions. 7. Another witness Mr S Kianou had known the applicant for 25 years (since childhood) and remained friends into adulthood. The witness and the applicant also maintained professional relationships in their careers and had worked together. The applicant had worked in Mr Kianou's Company for two years. 8. The witness provided evidence of the applicant's integrity and how he had been entrusted with large sums of money on a daily basis with no issues arising. In respect of the profession for which the applicant seeks the licence (Real Estate), and gave evidence about his knowledge of the applicant's real estate practice and that in selling residential developments the applicant had a reputation as an excellent salesperson and somebody who could be trusted in business. 9. The witness also provided evidence about his knowledge of all of the applicant's antecedents and had been provided with and read the prosecution material. The witness gave evidence concerning observing the applicant with his various partners over his adult life including his current partner. His evidence was that in the entire period he had never seen the applicant act towards his partner (at the relevant time) in the manner referred to in the police material covering the 2017-2018 incidents. 10. The witness was aware of all matters concerning the applicant's interactions with police, including traffic matters. The witness gave evidence that, notwithstanding the applicant's prior criminal matters, he would be prepared to engage him as a Real Estate agent (subject to him being licenced). 11. Another witness, D Dionysatos, provided an affidavit stating that he had known the applicant for 14 years and that, in his opinion, the applicant is honest, trustworthy and reliable in his professional dealings. 12. A further witness, K Moodley, provided evidence that the applicant conducts his profession in real estate in an ethical manner. This witness gave his evidence in the full knowledge of the applicant's criminal antecedents. Respondent's evidence / submissions 1. The respondent did not call any witnesses but did provide primary documents within the section 58 documents. The respondent also provided the criminal history and sentencing information as part of the section 58 material. 2. All of the evidence of the parties has been considered in the preparation of these reasons, even if not every item or aspect is referred to specifically in these written reasons for decision. 3. At hearing, the respondent made the point that the applicant had failed to disclose all of the 2017/2018 offences. There was a specific reference to the absence of the offence concerning threatening to send intimate images (the 4th recent offence). A further submission related to the failure to disclose the driving offences. These matters were, however, before the respondent from his earlier successful application for a licence, with the traffic matters having occurred around 2010. 4. In written submissions, the respondent also took issue with the completeness of the applicant's disclosure about the recent offences. As referred to above, this was a matter of some concern to the respondent. The Tribunal approached the issue by questioning the respondent's representative at hearing. As a result, the Tribunal understands this issue relates to a lack of any specific quoting or reference to the charge relating to the threat to distribute intimate image without consent (as per [53] above). 5. A further issue arose at the hearing concerning the fact that the applicant did not disclose his convictions to Fair Trading on 8 May 2019. The Tribunal observed at the hearing that, as the applicant's licence had expired on 2 May 2019, then, as the Tribunal understands the applicant, as at 8 May 2019 he had no business with Fair Trading and, as a result, was neither under any duty or obligation in that regard, statutory or otherwise. At the relevant time, when he applied for a licence afresh over four months later, the applicant did complete the form correctly, disclosing matters and providing further detailed particulars as set out above. 6. The respondent relied on the case of McEvoy v Director-General of the Department of Fair Trading (1994) 34 NSWLR 406. In that case the respondent referred to the following passage by Lloyd J at [30] – [36]: Conclusions 30. In my opinion the application for registration as a valuer should be refused. I have come to this opinion for the following reasons. 31. Firstly, the nature of the profession for which the applicant seeks registration is, I think, a relevant consideration. A registered valuer is sometimes required to prepare valuation reports which may be contrary to interest of those who have engaged the valuer's services. The requirement that a registered valuer be a person of good character is necessary to ensure that he or she is able to resist any pressure from those whose interests may be contrary to the valuer's true opinion. 32. Registered valuers also give expert evidence in the court. They are in the privileged position of expert witnesses, being permitted to give evidence of opinion (section 76 Evidence Act 1995). That is something which non-experts are not generally permitted to do. Expert witnesses in the court are subject to the Expert Witness Practice Direction 1999, which includes the following statement: An expert witness's paramount duty is to assist the court impartially. That duty overrides the expert witness's obligation to the engaging party. An expert witness is not an advocate for a party. 33. These obligations show that a valuer must demonstrate both honesty and candour in the face of pressure from the engaging party to present valuation report favourable to that party's interests. As noted by Mahoney JA in Law Society of NSW v Foreman, good character requires the individual to act in accordance with high standards of conduct when under pressure. 34. I accept the applicant's evidence in the present case that when he committed the offence of stealing he was under some pressure caused by his family situation, by the need to bring in an income for his family to make up for his father's incapacity to do so; and to meet his then gambling addiction. He has, however, not demonstrated an ability to maintain a high standard of conduct when under such pressure. He has not demonstrated that he can satisfy the test described by Mahoney JA in Foreman. 35. Secondly, the act of registration as a valuer amounts to a public certification that the person is an honest person in whom confidence can be reposed (in Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] UKPC 17; [2000] 1 WLR 1538 at 1543. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex parte Davis, Sakellis). I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character (Sakellis). The seriousness of the offence in this case is illustrated by the fact that it is both an indictable offence and one which carries the maximum penalty of ten years imprisonment (section 156 Crimes Act 1900). 36. Thirdly, the applicant's failure to disclose the convictions for the two drug offences and the disqualification excludes any possibility of holding that, at the time of making his application for registration, he was a person of good character (in Re Davis). I have referred above to the applicant's explanation for those failures. Nevertheless the applicant was convicted of the two drug offences, which are serious offences. The applicant recognised that he should disclose the stealing offence although he was placed on a bond and so also he should have recognised that he must disclose the drug offences although receiving the benefit of section 556A of the Crimes Act. As to the disqualification, the question on the application form for registration is unambiguously clear, for which there could be only one answer. The obligation of complete candour and disclosure is an important element of good character. Its absence does not give one confidence that in the course of his work as a registered valuer the applicant will not overlook in his valuation reports all relevant facts or opinions which may bear upon the question of value. Its absence suggests that the accuracy and reliability of the applicant's work would have to be checked. 1. The respondent characterised the applicant's regulatory failings as falling within those described by Lloyd J at [36] of McEvoy. However, the factual difference is that the applicant's drug conviction (the earlier offence) was well known to the respondent as he had disclosed it when he applied for and received his initial licence, which lapsed on 2 May 2019. 2. Why the respondent made a finding (based on the delegate's 'reasonable belief') on 16 December 2019 that the custodial sentence now meant that the applicant was not fit and proper to hold the licence is not further explained. Clearly in 2017, much closer to the offence, it was not sufficient in the respondent's view to withhold the licence. 3. Other cases were referred to in the respondent's written submissions, and these focused on instances where the Tribunal had refused the application (to reissue the licence) because the offences were serious, a short passage of time had elapsed since their commission, and/or the applicant was still serving the terms of their sentence. 4. In other cases, such as McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258, Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 22 and Rosenstrauss v Department of Finance and Services [2012] NSWADT 264, which were all cited by the respondent, the offences in question are either more serious, more aligned to the profession or trade to which the licence is sought, or involved a marked failure to disclose when there was a clear positive and statutory basis to do so. 5. On the nature of the offences, seriousness of offences and severity of the sentences imposed, the applicant relied on the lead cases concerning 'fit and proper', including Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. 6. Reference was also made to the Tribunal case of Saadieh v Director General Department of Transport [1999] NSWADT 68, where the Tribunal considered a number of matters, including the length of time since the offences, the admissions of the offender, rehabilitation and support. I agree that these are all relevant and positive factors for the applicant. 7. On the question of reoffending, the respondent referred to the case of Giri v Roads and Maritime Services [2012] NSWADT 241. That case relates to an applicant being subject to parole and that, even for a matter of that nature, it was considered that a person being on parole is not an absolute bar to on a person being rehabilitated. At paragraphs 44 and 45 the Tribunal concluded that: 44. The Tribunal needs to be able to attest to the Applicant's fitness and propriety and repute, and also that he can drive the taxi cab in accordance with law and custom. Given the short period of residing in the community after release to parole on a serious offence, then to so attest, the Tribunal would need to be satisfied that the Applicant has continued the rehabilitation and good behaviour demonstrated during his prison term, in the community. The Tribunal considers that this would be able to be more clearly demonstrated after a further period of time in the community. The Tribunal does not consider, on the evidence in the present case, that the Applicant must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation. The Tribunal is concerned of the risk to the public presented by the Applicant's conviction for an offence of murder, although the Tribunal has considered the circumstances of the offence and the evidence of good behaviour in gaol, and that the Applicant, when considered for release on parole, was considered low risk of re-offending. 45. The Tribunal considers that there needs to be a further period time where the Applicant is residing in the community with demonstrated good behaviour in the community, to evidence that the low risk is maintained while living outside of the custodial environment. The Tribunal considers that a current psychiatric report, evidencing that the Applicant is considered to continue to be low risk as he resides in the community, would be required. In the absence of this evidence and given the relatively recent release to the community, the Tribunal is unable to attest, on the evidence at this time, that the Applicant is a fit and proper person to be authorised to drive a taxi. Consideration 1. The consideration in the current matter is not one of the rehabilitation of the applicant but whether he is a fit and proper person to hold the licence applied for. A bond is a different proposition to parole, whereby parole seeks to productively mange the terms of a custodial sentence for the benefit of both the defendant and the community. 2. Reference was made to the case of Lloyd v Director General Department of Transport [2001] NSWADT 201 at paragraph 64. 64 In assessing whether sufficient time has elapsed since the offences, I am guided by the time imposed by the Courts in terms of the good behaviour bond. 1. I note the observations of the Tribunal in the case of McKenzie v Director General, Department of Transport [2000] NSWADT 126. At paragraphs [40] – [42] the Tribunal observed the relevant matters to the current application: 40 A critical issue to be determined in this matter is whether Mr McKenzie can be said to meet the high standards set out in s 11 of the Act while he remains on a bond. 41 Mr Wozniak submits that Mr McKenzie's bond must be seen as highly relevant. Mr Wozniak referred the Tribunal to the judgement of Henchman J in Sakellis v Officer in Charge of Police, Paddington (1968) 88 W.N. 541: It would be difficult indeed to hold that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character, even if it could be said that he was of good character at the present time.(at p 545 quoting Herron J in Ex parte Davis (1949) 50 SR (NSW) 158 at 167) 42 This case however is very different form one of breaking, entering and stealing, a much more serious offence. I accept that the bond is relevant in the sense argued by Mr Wozniak but also in another way. It is a significant deterrent for Mr McKenzie who is now in effect, on probation. Should he breach the bond, he faces the prospect of severe punishment by the Court. This is a significant incentive to behave impeccably. 1. In the case of McKenzie the background facts related to a charge and conviction of common assault. Common Assault is an offence under section 61 of the Crimes Act 1900 and, like all criminal offences is considered to be serious. But as the maximum penalty whether proceeded by way of indictment or summarily cannot exceed two years imprisonment, it is not considered a serious indictable offence for the purposes of Crimes Act 1900. Like the reference to break enter and stealing in paragraph 42 of McKenzie the applicant's recent offences (other than the threat offence) are, in my view, of a similar seriousness to those traversed in McKenzie. However the nature of the offences referred to in McKenzie are more closely aligned with transgressing the general attributes required of a licence holder in the area of Real Estate. 2. The applicant's offences fall within the ambit of serious offences, with the offence of threaten to distribute intimate image without consent being an indictable matter that the prosecution elected to be heard summarily. 3. The respondent's representative made submissions at hearing concerning the need for public confidence in the licencing system. I observe that Real Estate agents have access to individual citizens homes, are entrusted with keys, and supervising potential purchasers, who are strangers to a vendor or a landlord, in the client's property. They are entrusted with large amounts of money and, where permissible, have access to and operate Trust Accounts. 4. The respondent submits that, for this occupation, the level of fitness and propriety needs to be assessed or adjudged as 'high', however the respondent and the Tribunal have received significant evidence from witnesses for the applicant that assert that his probity in this area is of a high standard. None of that evidence has been challenged in the proceedings, and no evidence to the contrary has been submitted. 5. A significant submission (and point of difference between the parties) was the respondent's view that the applicant must have discharged his Bond following sentence in order to be adjudged as being a fit and proper person in this licencing regime. I have already identified the case of McKenzie which deals with the proposition in similar circumstances to those of the applicant. Both parties put on their own cases supportive of the competing arguments, where the facts were rarely on point with the background to the current matter. 6. However, other than reliance on the cases referred to in these proceedings, the applicant submitted that there is no principle evident that requires that the applicant (or any applicant) must wait until the expiry of any Bond period before being adjudged to be a fit and proper person to hold the relevant licence in this regulatory regime. 7. Reference is often made to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. I observe the reasons of Justices Toohey and Gaudron in Bond. At paragraph 36 of their reasons their Honours observed: 36. The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. Finally in my view arising from the respondent's reference to the case of Rosenstrauss, as referred to above, I believe that the following observations are significant to the current matter. This case distinguishes the issue when a person is on parole and in effect still serving their sentence. At paragraphs [76] and [77] are set out distinctions that may apply in the applicant's favour. 76. I note that the Applicant is still on parole. I note Mr Nicoletti's submission that if the Applicant were to be issued with a licence, then a person dealing with him might assume that he is unburdened by a custodial sentence. However, in the particular circumstances of this matter I do not consider that to be a determinative factor. I accept that most of the clients of the business are aware of the Applicant's conviction for the offences and I note that he is prepared to inform new clients of the conviction if such a condition were imposed. 77. Balanced against those issues are the factors identified that weigh in the Applicant's favour. These include his former good character, the fact that the offences were unrelated to the work authorised by his licences, his guilty plea, that he is genuinely remorseful, his commitment to rehabilitation and Dr. Lennings' reports suggesting a low risk of re-offending. 1. The applicant is currently unburdened by a custodial sentence. His only condition is to be of good behaviour. Whilst a parolee may have reporting, drug and alcohol and other abstinence conditions the applicant is only subject to the requirement to be of good behaviour. 2. For the recent offences, the applicant was sentenced to a Community Correction Order which expires on 7 May 2021. The supervisory conditions of that order were suspended on 11 July 2019 after a period of just over two months. The 150 hours of community service under the Order was completed on 27 September 2019. Other than the prospect of being resentenced on the original matters if he reoffends prior to 7 May 2021, the applicant's requirement to adhere to the law are, since September 2019, equal to that of any other citizen. His conditions have been removed and his specific requirements have been discharged. 3. Paragraphs [86] – [88] of Rosenstrauss, in my view, provide clear guidance and authority for the current matter. 86. The Tribunal needs to be able to attest to the Applicant's fitness and propriety. It is my view that this will only be possible after a further period of time in the community in which he is able to demonstrate his good character. However, it is not my view that the Applicant must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation and that he has an understanding of the need for candor with the regulator to maintain public confidence in the industry. 87. On the evidence at this time, I am unable to attest that the Applicant is a fit and proper person to hold these licences. If, after a further period of good behaviour in the community, the Applicant were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered. 1. The applicant has discharged the matters set out at [86]-[87] of Rosenstrauss. He has put on evidence which attests to the matters specified therein. That evidence has not been challenged. 2. Whilst the respondent has focused on his period of being under a Bond as being somewhat determinative on his fitness to hold the licence, no statutory prohibition has been sighted. The cases (whilst supportive of both parties arguments from different angles) focus on the need to tie those matters to the specified occupation or trade in issue, and also an individual's recent conduct. 3. The applicant says that his recent conduct (2 years) has been without blemish. The respondent says that the applicant has tried to evade disclosing all relevant matters and has breached his duty to disclose matters to the regulator. I disagree with the respondent's submission on this point. 4. On the respondents arguments I observe that: 1. The regulator was aware of his most serious criminal breaches, (the drug offences in the past), having issued a licence previously notwithstanding those transgressions. 2. The regulator was aware of the traffic / driving offences from 2010, having considered those matters when issuing the earlier licence. 3. The matters at Item 10 of the application form invite an applicant to provide full details on a separate sheet (for any positive disclosures). The applicant did provide details and whilst one matter was not explicitly referred to, there was reference to being convicted of offences relating to domestic violence. There were also references to the assault conviction and full details of his sentence terms and conditions. 4. Further information and details were provided when further clarification was sought by the respondent when considering the application. 1. Much of my consideration has been outlined in my views about the applicability of the cases referred to above by both parties. In my view, licences under the PSA Act require a high level of fitness and propriety which comes from honesty as a relevant consideration under the lead authorities referred to above. 2. As submitted by the applicant, there is no statutory or general principle that requires a person to not be subject to any conditions of a sentence in order to be a fit and proper person to hold a licence. A Bond, in the current matter, where the applicant has been discharged for the specific conditions, merely creates a promise to an individual that if they offend it will have potentially greater consequences on sentencing that that of an ordinary citizen. 3. I observe that in certain areas of the licensing regimes in NSW the Legislature has inserted time frames into the Legislation to provide a statutory framework linking offending with the ability to hold the licence. 4. In the areas of Firearms, Security, Building and other trade areas the relevant legislation provides for disqualifying offences which specify in most instances a requirement that there be a period of 10 clear years between the offence and being eligible to hold the relevant licence. 5. No such specific time frames apply in the current matter as the applicant's offences (albeit serious) are not so serious or relevant to the fitness to hold a Real Estate Licence as to be classified as disqualifying offences. 6. The applicant provided significant, unchallenged evidence concerning both his suitability to carry out the duties of a licence holder, and his ability to be entrusted with the responsibilities that are placed on licence holders. 7. Having regard to the case law, the evidence and submissions of the parties, I find that the applicant does meet the standard of fitness and propriety required for the issue of an individual Real Estate Licence. 8. For completeness I make the following findings. 9. On the evidence and material before me, I find that the applicant has not engaged in any dishonesty in respect of his 2019 application to the respondent for an individual Real Estate Licence. 10. Having regard to the provisions of the PSA Act I find that the applicant has discharged his onus to establish that he is currently a fit and proper person for the issue of the relevant licence. Conclusion 1. For the reasons set out above, the correct and preferable decision is that the Respondent's decision that the applicant is not a fit and proper person to hold a licence in accordance with section 14 (1) (b) of the PSA Act should be set aside. Orders 1. The respondent's decision to refuse the applicant's application for an Individual Real Estate Licence on 31 October 2019 and confirmed on 16 December 2019 is set aside. 2. In substitution of that decision the respondent is to issue the applicant an Individual Real Estate Licence. ********** 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: 01 September 2020