Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yu v Commissioner for Fair Trading [2022] NSWCATOD 68 Hearing dates: 28 April 2022 Date of orders: 24 June 2022 Decision date: 24 June 2022 Jurisdiction: Occupational Division Before: S Dunn, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW - Property and Stock Agents Act 2002 - Application for certificate of registration as an assistant real estate agent - Fit and proper person - conduct giving rise to charges where applicant found not guilty - failure to provide regulator with relevant material Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Casino Control Act 1992 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Licensing and Registration (Uniform Procedures) Act 2022 (NSW) Property and Stock Agents Act 2002 (NSW) Cases Cited: Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 EMB v Commissioner of Police [2020] NSWCATAD 255 Esterman v Commissioner of Police [2014] NSWCATOD 70 John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131 Joseph v NSW Commissioner of Police [2017] NSWCA 31 Lukas v Commissioner of Police [2021] NSWCATAD 268 Maher v Department of Fair Trading [2019] NSWCATOD 21 Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 Stojanovic v Commissioner for Fair Trading [2008] NSWADTAP 84 Category: Principal judgment Parties: Jiazhen Yu (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (self-represented) Counsel A Douglas-Baker (Respondent) Solicitors Crown Solicitor (Respondent) File Number(s): 2021/00309868 Publication restriction: Nil Reasons for decision Introduction 1. This is an application to the Tribunal under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for a review of the decision by the Respondent made on 17 December 2021 to refuse the Applicant a certificate of registration as an assistant agent pursuant to s 19 of the Property and Stock Agents Act 2002 (NSW) (PSAA). That decision was made on the grounds that the Respondent was not satisfied that the Applicant is a fit and proper person to hold a certificate of registration and, therefore, does not meet the eligibility requirements in s 14(3)(b) of the PSAA (decision under review). That is a decision which is administratively reviewable by the Tribunal by virtue of s 27 of the PSAA. 2. In making the decision under review the Respondent relied on the fact that the Applicant had been charged with certain dishonesty offences in 2016 in respect of which the Applicant was found not guilty in June 2021 after a 45 day hearing (criminal proceedings). The Respondent also relied on the Applicant's failure to fully respond to requests made of him for information relevant to his application and an earlier application. The information requested included a copy of the transcript of the criminal proceedings. The Respondent stated that failure to provide the information requested meant that the assessing officer had been unable to satisfy themselves that the Applicant was a fit and proper person and further stated that, at the time of determining the application, the Applicant had offered limited explanation or evidence to otherwise support his fitness and propriety to be issued a certificate of registration. 3. The Respondent accepts that the Applicant meets the other eligibility criteria for a certificate of registration in s 14 of the PSAA. 4. Certain documents relating to the criminal proceedings were obtained by the Respondent in advance of the hearing of this application in response to a summons issued to the Commissioner of Police, New South Wales Police Force. Those documents and extracts of the transcript of the criminal proceedings are now in evidence before the Tribunal. The question the Tribunal needs to determine in these proceedings is what is the correct and preferable decision having regard to the material now before it including any relevant factual material and any applicable written or unwritten law: s 63 Administrative Decisions Review Act 1997 (NSW) (ADR Act). Application for confidentiality orders 1. At the outset of the hearing the Applicant sought orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting the disclosure of the name of the Applicant and any other person (whether or not a party to the proceedings), any report of the proceedings in the Tribunal, evidence given before the Tribunal, or matters contained in documents lodged with, or received in evidence by, the Tribunal. In the alternative, the Applicant sought an order that the Applicant's name and the name of the persons who have provided references for the Applicant be anonymised. The Applicant sought these orders because, he said, he wished to keep confidential information of a private and sensitive nature. 2. The Respondent opposed the making of those orders, submitting, correctly, that the criterion for the application of a confidentiality order is not the preference of the Applicant. The Respondent submitted that the public interest considerations in favour of an open hearing and open reasons being published outweigh the Applicant's interest in keeping his personal information confidential. The Respondent also noted that the nature of the evidence in the proceedings before the Tribunal was similar to the evidence in the criminal proceedings which were conducted in public. 3. I declined to make the orders sought explaining to the Applicant that the general rule is that proceedings are conducted in public and reasons for decisions are published because "justice must not only be done but must also be seen to be done". 4. The principles of open justice are reflected in s 49 of the NCAT Act which provides: "49 Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". 1. The principle of open justice is a widely recognised principle of the common law. The principle and the limited circumstances recognised for departure from the principle were explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 at 476–477 as follows: The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within' its jurisdiction. 1. As also explained by Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. 1. I do not consider that there is any good reason to depart from the general principle of open justice in the circumstances of this case. As I indicated to the Applicant at the hearing, I have, however, sought to include in these reasons only those details necessary for the purposes of explaining the decision I have reached. Relevant Legislation 1. The PSAA establishes a regime for the licensing, regulation and discipline of persons carrying on business in the real estate industry under a licence or certificate of registration. 2. Section 10 of the PSSA provides: 10 Assistant agents require certificate of registration (1) A person must not do any of the following things unless the person is the holder of a certificate of registration— (a) be or remain as an assistant agent in the employment of a person licensed (or required to be licensed) under this Act, (b) represent, whether expressly or impliedly, that the person is an assistant agent, (c) act as or exercise any of the functions of an assistant agent. Maximum penalty—100 penalty units. 1. Section 14 of the PSSA sets out the eligibility criteria to hold a licence or certificate of registration. Section 14 (3) provides: (3) A person is eligible to hold a certificate of registration only if the [Respondent] is satisfied that the person— (a) is an individual who is at least 16 years of age, and (b) is a fit and proper person to hold a certificate of registration, and (c) has the qualifications required for the issue of a certificate of registration of the type concerned, and (d) is not a disqualified person. 1. Section 16 details a list of persons who are disqualified persons and it includes a person who has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years. 2. Section 19 of the PSSA provides: 19. Certain applications to be refused An application must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (as provided by section 14). 1. Section 17(2) of the PSSA provides that: Part 2 (other than section 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (the applied Act) applies to and in respect of a licence or certificate of registration, subject to the modifications and limitations prescribed by or under this Act. 1. Section 14 (in Part 2) of the Licensing and Registration (Uniform Procedures) Act 2022 (Uniform Procedures Act) provides: 14 Provision of further information and supporting evidence (1) The relevant licensing authority may serve notice on an applicant requiring the applicant to provide— (a) such information further to the original information contained in the application, and (b) such documentary or other evidence (such as a photograph of the applicant) in support of the original or further information, as the authority may require to enable it to deal with the application. … (2) In particular, the relevant licensing authority may require an applicant to provide— (a) details of any offence for which the applicant has been convicted or found guilty in this State or elsewhere (together with details of any penalty imposed for the offence), and (b) details of any criminal proceedings pending against the applicant in this State or elsewhere. (3) If the applicant fails to comply with the requirements of a notice referred to in subsection (1) within 14 days after the notice is served, the relevant licensing authority may refuse the application without dealing with it any further. … Material before the Tribunal 1. The Applicant relied upon his application dated 1 November 2021, documents lodged with the Tribunal on 17 November 2021 and 20 December 2021 (all of which the Applicant confirmed at the hearing are contained in the documents lodged by the Respondent with the Tribunal under s 58 of the ADR Act (s 58 documents)), documents lodged with the Tribunal on 14 February 2022 (marked Exhibit A1) and documents lodged with the Tribunal on 27 April 2022 (marked Exhibit A2) as well as submissions filed on 20 December 2021, 14 February 2022 and 27 April 2022. The documents relied upon by the Applicant included records as to his qualifications and copies of assessments undertaken, bank statements which indicate his current financial position, property title searches and other information concerning real estate owned by the Applicant at the time of the alleged offences and purchased subsequently, a statement relating to a term deposit held by the Applicant at the time of the alleged offences and copies of pay slips from August 2015, the Applicant's driving record and seven reference letters. 2. The Respondent relied on the s 58 documents (Exhibit R3), a second bundle of s 58 documents which included documents produced by Star Casino Ltd in response to a summons issued in the proceedings (Exhibit R4), a bundle (in two volumes) of documents headed "Criminal Proceedings Documents" which contains copies of extracts from the brief of evidence relating to the criminal proceedings and copies of certain extracts of the transcript of the criminal proceedings (Exhibit R5) and written submissions dated 22 April 2022. 3. Some of the submissions filed by the Applicant were really in the nature of evidence and counsel for the Respondent cross-examined the Applicant at some length at the hearing which I comment on further below. Background Facts 1. The following background facts, unless otherwise indicated, are not in dispute. The Applicant's qualifications and work background 1. The Applicant is a Chinese National, permanently resident in Australia and, at the time of the hearing, was 36 years of age. He first arrived in Australia on a student visa in 2007 and studied a diploma of hospitality management which he completed in 2009. The Applicant then worked at a pizza restaurant (cook and delivery work) and drove a taxi for approximately six months. He then worked for a property development company in Sydney from approximately 2011, the QY Group. 2. In 2012, the Applicant completed certain components of a Certificate III in Property Services (Operations) and Certificate IV in Property Services (Real Estate) at the Real Estate Institute of New South Wales. 3. In 2014 the Applicant obtained a Certificate IV in Property Services (Real Estate) from Rentals R Us Real Estate Pty Ltd. 4. In 2015 the Applicant established his own property development company, Pro J Management Pty Ltd, which was to provide development management services to local developers, builders and investors. That company was registered while the Applicant was still working for QY Group. The Applicant left QY Group in 2016 and became effectively self employed at that time. He was the sole director of Pro J Management Pty Ltd. 5. The Applicant became an Associate Member of the Australian Property Institute in June 2017. In 2018 he obtained a Master of Property Development from the University of Technology, Sydney and in 2020 he completed an Alternative Investments Course at Harvard Business School online. The criminal charges 1. On 27 July 2016 the Applicant was charged with five counts of obtain/attempt to obtain a benefit in casino by dishonest means, contrary to s 87(1)(a) of the Casino Control Act 1992 (NSW) (Casino Control Act), together with one count of dishonestly obtain financial advantage to a total profit of $1,000,250, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act), and one count of participate in a criminal group contribute to criminal activity, contrary to s 93T(1) of the Crimes Act (the alleged offences). 2. Section 87(1)(a) of the Casino Control Act relevantly provided: 87 Cheating (1) A person must not, in a casino – (a) obtain or attempt to obtain any benefit for himself or herself or another person … . Maximum penalty – 100 penalty units or imprisonment for 2 years, or both. …. (6) In this section– Benefit includes any money, chips, prize, advantage, valuable consideration or security. 1. Section 192E(1)(b) of the Crimes Act relevantly provided: 192E Fraud A person who, by any deception, dishonestly– …, or obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty–Imprisonment for 10 years. 1. Section 93T(1) of the Crimes Act relevantly provided: 93T Participation in criminal groups A person who participates in a criminal group is guilty of an offence if the person– knows, or ought reasonably to know, that it is a criminal group, and knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty: Imprisonment for 10 years. …. (6) To avoid doubt, for the purposes of this section a person may participate in a criminal group whether or not the person is a member of the criminal group. 1. The criminal group it was alleged the Applicant was a part of comprised the Applicant, a Star Casino employee, Mr Luo, and a person by the name of Mr Liu. 2. Each of the alleged offences was alleged to have occurred early in the morning on 26 July 2016 at The Star Casino in Pyrmont, Sydney when the Applicant was playing baccarat with Mr Liu. The Applicant was alleged to have placed five bets playing Premium Baccarat over the course of a two-hour period winning, on each occasion, between $142,500 and $237,500. On each occasion the Applicant placed one of these bets, it was alleged that The Star-employed dealer, Mr Luo, had peeked at the cards when they were removed from the packet and had given the Applicant or Mr Liu a signal. The Applicant's evidence in the criminal proceedings 1. The Applicant gave evidence in the criminal proceedings. In his examination in chief the Applicant gave the following evidence (at pages 1579 – 1583 of the transcript): Q. … So, how did you get to know Mr Liu? A. Mr Liu was a client of my company, the property development I was working for. Mr Liu and his friends bought a few units in one of our developments in Bondi Junction. … Q. What did you think of Mr Liu at the time? A. My first impression to him is he was very successful and respectful, being this man. A person that I think I can learn a lot of things from. And, more importantly, I think he will be a potential client of mine for my business in the future. … Q. But, why did you agree to play baccarat with Mr Liu? A. Well, I think first of all, I was to learn from him how to play baccarat, and the second is I want to close up our relationship, because relationships very important for people doing business from Chinese culture. And, I think that's why we say – you know, we just play together. … Q. When you were at the baccarat tables with Mr Liu, did it matter to you if the bets were won or lost? A. Does not matter because it's not my money and chips. … Q. Would you have participated if you knew your conduct was fraudulent, dishonest, or amounted to cheating? A. Of course not, because I have property assets, I have reasonably good income and good family. I would not risk it against my bright future. 1. The Applicant was cross-examined at length in the criminal proceedings. In short, the Crown put to the Applicant (relying on a transcript of translated WeChat messages between the Applicant and Mr Liu in the period leading up to and on 26 July 2016) that he had, prior to the events in question, incurred gambling losses of approximately $10-20,000 (a fact which he was concerned to keep from his wife), he had shared that information with Mr Liu via WeChat, Mr Liu had suggested he would be able to assist the Applicant to make good those losses and that the Applicant and Mr Liu then worked together in an alleged cheating scheme involving the bets placed at the casino. The Applicant agreed that he had lost some money playing on a poker machine. He could not remember how big his losses were, saying "10 grand, 20 grand". He conceded that it was possible that Mr Liu was aware that he had lost money gambling. However, his evidence was that, his gambling losses were not of a magnitude so as to cause him concern given his overall financial position, he was not concerned about his wife knowing he had incurred the losses, he was not involved in any cheating scheme and that he was playing baccarat with Mr Liu as he had simply wanted to learn Mr Liu's system for playing baccarat successfully. He agreed that he placed five "big bets" (the bets the subject of the charges) one of which was in the order of approximately $250,000 at the request of Mr Liu and according to his instruction. He agreed the arrangement was that he would go along with Mr Liu's instructions about the betting that would take place. He in fact made 15 bets at Mr Liu's direction, five of which were the "big bets". In his submissions dated 27 April 2022, the Applicant states that 11 of the 15 bets were included in the charges against him and "All of those 11 bets in the charged shoes were big bets, in the tens, if not hundreds of thousands of dollars". When the Applicant was asked if he was surprised the big bets he placed were successful, his answer was "It was luck". 2. The Tribunal does not have before it the trial judge's summing up to the jury. However, in the closing address to the jury by the Applicant's solicitor, he states: Pursuant to the written directions from His Honour you will shortly receive, the Crown has not proved the alleged deception is the only rational inference available to be drawn from the evidence. As it is open to you to find some other reasonably possible explanation of the evidence, you must give Mr Yu the benefit of the doubt and return verdicts of not guilty… 1. In the result the jury returned verdicts of not guilty on the charges against the Applicant of dishonestly obtaining a financial advantage by deception and participating in a criminal group and the DPP withdrew the charges of obtain or attempt to obtain a benefit in a casino by dishonest means. It is not clear from the materials before the Tribunal, but an index of the transcript provided by the Applicant to the Respondent suggests that the jury was deadlocked on the charges against the Applicant's co-accused, Mr Luo and Mr Liu. The Applicant told the Tribunal at the hearing that he understood Mr Liu was shortly to be facing another trial. The Application and requests for documents relating to the criminal proceedings 1. The application in issue followed a number of earlier applications by the Applicant for various different real estate related licences or certificates. 2. The Applicant and his company, Pro J Management Pty Ltd, applied for an individual real estate agent licence and a corporation licence respectively in 2015. The Respondent requested the Applicant and his company provide further information in support of those applications. As that information was not provided, those applications were refused. The Applicant later explained to the Respondent that he did not pursue those applications at that time because he did not have sufficient time to deal with them and did not have an urgent need for the licences. 3. On 12 April 2017 the applicant applied for registration as a real estate salesperson. 4. On 11 May 2017 the Respondent, having been notified that the Applicant had been charged with the alleged offences, issued a notice to the Applicant requesting information concerning the alleged offences, including copies of the Court Attendance Notices and "all related documentation served upon you in relation to the [charges]". 5. On 11 May 2017 the Applicant responded to the request for specified information, providing the Court Attendance Notices and stating that he was innocent of the alleged offences. 6. On 21 June 2017 a delegate of the Respondent refused to grant the application a certificate of registration as a real estate salesperson because, while the charges against the Applicant were pending, he could not be satisfied that the Applicant was a fit and proper person to hold a certificate of registration. 7. The Applicant sought internal review of the delegate's decision and on 1 August 2017 a different delegate of the Respondent affirmed the decision to refuse to grant the applicant a certificate of registration as a real estate salesperson. 8. On 19 July 2021, after the findings of not guilty by the jury and the withdrawal of the balance of the charges, the Applicant applied for a certificate of registration – assistant agent which is the application the subject of the decision under review. 9. On 20 July 2021 a notice was issued under s 14 of the Uniform Procedures Act to the Applicant requesting he provide a copy of his qualifications, to which the applicant responded on 27 July 2021. 10. On 21 September 2021 a second section 14 notice was issued to the Applicant requesting he provide, amongst other things, copies of "any court documents regarding the outcome of the dishonesty offences" and references from a current employer and referees aware of the charges who could attest to the Applicant's character. 11. The Applicant responded by email dated 21 September 2021 noting: "I was found NOT GUILTY for all alleged offences relating to dishonesty on 18 June 2021 by the jury in the Sydney District Court". The Applicant provided a copy of an index of the transcript of the criminal proceedings prepared by an unknown author and a Police Check. Shortly thereafter the Applicant also provided a reference letter from his solicitor who had represented him in the criminal proceedings, Mr Zhou. 12. On 18 October 2021 a third section 14 notice was issued to the Applicant requesting he provide a copy of the Court transcript of the criminal proceedings. 13. On 18 October 2021 the Applicant sent an email to the Respondent in which he stated: "I have provided you with everything you requested in the last few emails and you are keep asking for more and more information. I don't understand why you need the court transcript for? The court and the jury have already found me not guilty for all charges… I am not required to provide with court transcript for privacy reasons". 14. On 20 October 2021 the Applicant emailed the Respondent again attaching a summary of the Court results and noting that "To order a copy of the transcript would cost the applicant circa $25,115 based on 1,923 pages. It is unreasonable for me to pay such large amount just to demonstrate that I have good character." 15. On 22 October 2021 the Applicant sent an email to the Respondent's office questioning why he needed to provide any further information and stating that he believed that he was being discriminated against on the basis of his Chinese nationality and the fact that he had been charged with the offences. Cross- examination of the Applicant 1. Counsel for the Respondent cross-examined the Applicant at some length in the proceedings before the Tribunal covering some of the same ground as was covered in cross-examination in the criminal proceedings. The Applicant's failure to provide documents relating to the criminal proceedings 1. As to the Applicant's failure to provide the transcript of the criminal proceedings in answer to the s 14 Notice dated 18 October 2021, the Applicant was asked whether his solicitor, Mr Zhou, would have available a copy of the transcript and the Applicant answered that he was not sure. He said that he did not ask Mr Zhou whether he could provide a copy of the transcript because if he did Mr Zhou would have charged him a fee for providing it. 2. The Applicant was asked where he obtained the index to the transcript that he provided to the Respondent on 21 September 2021 and he indicated that he had obtained that transcript from his co-accused, Mr Liu. He does not know who prepared the index. He was asked whether, after he received the notice requesting a copy of the transcript, he went back to Mr Liu to ask him for a copy of the transcript. He said that he did not. He said this was for two reasons. First, he did not want to make trouble for other people and secondly, at the time, he thought that the Court results he had provided should be sufficient and there should be no need to provide the transcript to the Respondent. He accepted that it would have been reasonable to ask Mr Liu for a copy of the transcript but he chose not to do so but he denied that the reason for not providing the transcript was that it might reveal things to the Respondent that he did not want the Respondent to know. 3. He was also asked when the Police brief of evidence was served on him and he said it was provided to him on a USB in 2016. He was taken to the s 14 Notice issued in 2017 requesting "all related documentation" in relation to the charges which had been laid against him and asked whether that included the brief of evidence. He said that he believed he had done the best he could do at the time to provide relevant information to the Respondent but conceded that he has never given the brief of evidence to the Respondent. The Applicant's financial position 1. The Applicant was asked a wide range of questions about his financial position both at the time of the alleged offences and subsequently including as to what his income had been and how much money his parents may have provided to him for the purpose of acquiring property or investing in the share market. It was put to the Applicant that he had prepared the payslips he had provided as proof of his income in 2015 but he denied this was the case and maintained that they had been provided to him by the accountant of the companies he was employed by at the time. He maintained throughout his cross-examination that his income at the time of the alleged offences was approximately $100,000. 2. The Applicant was unable to answer some of counsel's questions, he said, without checking his records. While to some extent it is understandable that the Applicant may not have been able to recall specific details as to exactly when he may have received pay increases or bonuses or amounts of money from his parents over the years, and while I consider his reluctance to answer some of counsel's questions was driven by a desire to keep matters private, I agree with the Respondent's submission that the Applicant's evidence as to his financial position was somewhat evasive and difficult to follow. 3. Nevertheless, while the Applicant may have mortgages over two properties, those mortgages appear to be relatively modest compared to the value of the properties the Applicant owns. 4. The Respondent submitted that the Applicant attempted to mislead the Tribunal in one respect of his evidence by suggesting that monies held in a certain term deposit were used by the Applicant towards the purchase of a property. However, I do not consider the Applicant did set out to mislead the Tribunal in this respect and accept his evidence that he intended to convey those monies were used by way of security. I do not consider anything ultimately turns on this. The Applicant's gambling history 1. The Applicant said that he had gambled a little before 2016 but only casually. He had played poker machines and blackjack and had gone to the casino occasionally and played a few other games including baccarat and roulette. He believes the first time he played baccarat in Australia was in 2007 or 2008 the first time he visited the casino in Australia. However he said that while he had played a little baccarat before and generally understood the rules, he wished to learn from Mr Liu how to play baccarat well. That is what he meant by saying he wanted to learn "the system". 2. He denied that, at the time of the alleged offences, he had a gambling problem. He said that, prior to 2016 he would sometimes go to a club with friends after dinner and play on the poker machines but generally he would only bet on any one occasion $50, $100 or $200. However, in 2016 he was playing poker machines more often and placing larger bets. He had lost approximately $10,000 or $20,000. 3. He was taken to the translation of the WeChat messages (text and audio) between him and Mr Liu that the prosecution had relied upon in the criminal proceedings. That transcript provides (VI signifying the Applicant and V2 signifying Mr Liu): V2 – I heard that you gambled with 21 points yesterday?... V1 – Em. Lost a lot. … V1 – I shall talk to you shortly.(Text) V1 – She is with me … V1 – A total of 30,000 lost (text) … V1 – Don't let Jenny know if there is money won or some windfall comes because I … have $20,000. … V1 - … Then I tried to recover the $10,000 which I had lost. To recover it, but I misplayed. What could I do as I lost $20,000?... … V1 – Absolutely not going to there. I won't go there even if they kill me. The lesson is … too deep. (7 second audio) … V2 - …I"ll find ways to win it back for you. (5 second audio) 1. The Applicant agreed that he had told Mr Liu he had lost $30,000 and that he had lost this playing blackjack. When asked if he could afford to lose $30,000 he said that yes he could, he had sufficient funds to cover it. "It was a lot but it was ok". He was asked if his wife, Jenny, knew that he had lost $30,000 playing blackjack and he said that she did. Counsel for the Respondent put to the Applicant that he concealed his gambling from his wife and she did not know that he had lost money. He denied this. He said that she knew at this time that he was playing poker machines a lot and he had lost some money and she understood. When asked whether he was borrowing money to gamble the Applicant said that he was not and that he was not concerned that anyone was going to kill him because he couldn't repay money. He had sufficient money in his account. It was not a gambling debt, just a loss. The events which took place on 26 July 2016 1. He agreed that on 26 July 2016 he placed bets at Mr Liu's direction, that he was playing with Mr Liu's chips, he had not contributed any money to the purchase of the chips, he placed 15 bets in total, five of which were the "big bets" between approximately $150-250,000 each and that he had never placed a bet in those amounts before. He said that there was no arrangement between him and Mr Liu as to any winnings. He said "it was nothing to do with me. It was his money." Nor, he said, did they have any discussion as to what might happen if the bets were lost. 2. Counsel for the Respondent submitted that the Applicant had been evasive in cross-examination in answer to questions about whether he had discussed what would happen in the event that the bets he placed were lost. The Respondent submitted that at first the Applicant said he had had discussions and later said that he had not. However, I do not agree that the Applicant was seeking to be evasive in this regard. It appeared to me that the Applicant had misunderstood the question first put to him and corrected it when that became apparent. His evidence in this regard was consistent with the evidence that he gave in cross-examination in the criminal proceedings. 3. Counsel put to the Applicant that, at the time of the alleged offences, he had a gambling problem which he denied. Counsel also put to him that he had concealed this from his wife and that he was prepared to engage with Mr Liu to try and recover his losses. He denied this, stating that he merely wanted to learn the system from Mr Liu as he was an experienced player. Subsequent gambling 1. Counsel took the Applicant to paragraph 29 of his written submissions which states: The applicant has not entered into any Casinos in the world for gambling since the incident was happened on 27 July 2016. The applicant has zero gambling losses or debts. 1. Under cross-examination the Applicant conceded that while he has not been to any casinos, he has occasionally played poker machines at a club in the last six years, no more than 10-20 times. On these occasions he has placed bets of around $50 or $100. "Re-examination" 1. After his cross-examination the Applicant gave some brief further evidence by way of his own "re-examination". As to the brief of evidence he said that there was a large volume of material, it was with his solicitor and he had not had a chance to submit it and as to the transcript, he understands Mr Liu is facing another trial in 2 months' time and was concerned about disclosing the transcript to the public. 2. As to the line of questions concerning his gambling, he said that he had "learnt his lesson" but that gambling is legal in Australia and there is nothing wrong with casual gambling activity. Applicant's submissions 1. The Applicant says that, in fact, he does not presently have a need for a certificate of registration given the current scope of his business. However, he has pursued the application because he considers that he should have been granted a certificate and wishes to prove his good character, reputation, professional knowledge and ability. The Applicant's knowledge and ability are not in issue in the proceedings. 2. The Applicant submits that he was not involved in any cheating scheme. He says that had no incentive to cheat as he had sufficient income and assets to meet the gambling losses he had incurred and his other expenses. He maintains that he was playing baccarat with Mr Liu in order to learn "the system". He was not aware of any cheating scheme in the background. He did not know Mr Liu had information "outside of the rules" and as he only spent two days learning how to play baccarat, it was impossible for him to tell "whether the betting system has any issues". He says that there was no incriminating evidence found against him. He relies on the fact that he has no criminal record, an exemplary traffic record with only one minor offence over a history of 15 years of extensive driving, says that he always obeys the law and conducts himself honestly and relies on seven reference letters which, he says, attest to his fitness and propriety as well as the character evidence given in the criminal proceedings in support of the Applicant by a real estate agent who has known the Applicant since 2014. 3. As to his failure to provide the Respondent with a copy of the transcript, the Applicant submits that it was unreasonable for the Respondent to require him to provide the transcript which would have cost him approximately $25,000 and believed that, in any event, it was pointless providing the Respondent with the transcript as the Respondent "asserted that its refusal decision should be affirmed even after receiving sufficient information". He considers that he has been pro-active in responding to the Respondent's requests and has tried his best to help the Respondent understand the situation. Respondent's submissions 1. The Respondent submits that the Applicant should not be granted a certificate of registration as the Tribunal cannot be satisfied that he is fit and proper to hold the certificate of registration. 2. The Respondent submits that the Applicant unquestioningly gambled significant sums of money that were not his own at the behest of an older person with whom he wished to have a lucrative business relationship. This, the Respondent submits, at a minimum, suggests that the Applicant is either prepared to engage in questionable conduct or to turn a blind eye or fail to make any enquiry as to questionable conduct. 3. The Respondent also submits that the Applicant is unfit given he carries debt with respect to the mortgages over his properties, has had significant involvement in gambling, given the quantum of his losses and his preparedness to gamble significant sums of money which were not his own at the unquestioning direction of a person with whom he was seeking a valuable commercial relationship. 4. The Respondent further submits that the Applicant has not provided character evidence from a person in the real estate industry who is aware of the criminal charges and the evidence in support of those charges (including the Applicant's oral evidence in the criminal proceedings), but who is nonetheless prepared to attest the applicant's fitness and propriety. 5. Whether the Applicant's conduct is explicable on the basis of naivety or some more culpable failure to enquire, in all the circumstances, the Respondent submits, the Tribunal cannot be satisfied that the Applicant is fit and proper to hold a certificate of registration as an assistant agent. Consideration 1. The Applicant's qualifications are not in question. The question the Tribunal must determine is whether it is satisfied that the Applicant is a fit and proper person to hold a certificate of registration as an assistant agent. Fit and Proper Person 1. In Lukas v Commissioner of Police [2021] NSWCATAD 268, the Tribunal summarised the authorities relating to the meaning of fit and proper person as follows: 88.Determination of whether a person is "fit and proper" requires an evaluative judgment, as explained in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. At 380 Mason CJ explained: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 89. Toohey and Gaudron JJ said at 380: 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. 90.A person's fitness is to be considered in the light of the activities that the person will undertake: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41]. 91. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. (emphasis added) 1. The PSAA establishes that integrity, honesty and trustworthiness are central to the certification and licensing regime for persons engaged in the real estate industry in NSW: Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 at [44]. Section 16(1)(a) of the PSAA underscores the centrality of honesty, integrity and trustworthiness to the concept of fitness and propriety as an eligibility requirement to hold a licence or certificate. 2. As the Tribunal noted in Maher v Department of Fair Trading [2019] NSWCATOD 21 at 124: A licensed real estate agent carries privileges and obligations. Agents are entrusted to hold deposits on sales of properties and to receive rent on behalf of landlords. The industry is regulated to provide the public with a measure of confidence that agents follow rules in respect of trust money and conduct themselves competently, honestly and fairly. 1. While it is true that an assistant agent must be employed and supervised by a licensed real estate agent and is not responsible for trust accounts, they do, as an employee, carry on the functions of a real estate agent and may still be involved in transactions which involve significant sums of money changing hands. Conduct giving rise to the charges against the Applicant 1. In considering the question of fitness and propriety there is no reason why the Tribunal should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions: Joseph v NSW Commissioner of Police [2017] NSWCA 31 at 63. 2. It is not necessary for the Tribunal to determine if the Applicant was, on the balance of probabilities (as opposed to the higher criminal standard of proof) "guilty" of the charges against him. What the Tribunal here needs to consider is the conduct which gave rise to those charges: EMB v Commissioner of Police [2020] NSWCATAD 255 at [29]. 3. As the Tribunal noted in Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30]: The Tribunal accepts that the charges made against Mr Esterman following the altercation were subsequently dismissed by the Local Court. However, the Tribunal's role is different to that of a court: it is not the Tribunal's role to consider whether Mr Esterman's actions amounted to criminal behaviour, rather how they are to be seen when considering whether Mr Esterman is a fit and proper person to hold a security licence and whether it would be in the public interest for him to do so. It is, for these reasons, the conduct rather than the conviction that is of concern to the Tribunal. Bazouni & Ors v Commissioner of Police, NSW Police Service [2002] NSWADT 100 1. As the Appeal Panel observed in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20]: We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed. 1. While the evidence in the criminal proceedings which is before the Tribunal, including the WeChat transcript, raises serious questions, the Tribunal does not have before it the entirety of the evidence in the proceedings, any information as to the basis for the jury's not guilty findings or information as to the status of the charges against the Applicant's co-accused. Accordingly, caution must be exercised. 2. However, on the Applicant's own evidence, on the morning of the alleged offences, he gambled significant sums of money (far more than he had previously ever gambled) that was not his own on the instructions of another person whom he saw as a potential client in order to try and "closen" up his relationship with him, which resulted in significant winnings without turning his mind to whether the "system" he was being taught was in any way dishonest. That alone is cause for concern. 3. While the Applicant claims that he did not participate in any scheme to cheat, there has been no acknowledgement by the Applicant that what he did in the circumstances was unwise or naïve or that he should have questioned, or at least have had cause to question, what was occurring. In fact, to the contrary, the Applicant maintains that he had no reason to question why the big bets were all successful because he had only spent 2 days learning how to play so that it was not possible for him to tell whether the "betting system has any issues". 4. The Applicant said in his oral submissions that he has "learnt his lesson", but it is not clear what the Applicant means by that. The Applicant says only that he has not gambled in casinos since that time. If the Applicant still does not acknowledge that he should have questioned what was occurring, how is the Tribunal to have confidence that the Applicant will not make a similar error of judgment in future? Applicant's gambling since the alleged offences 1. The Respondent submits that the Applicant sought in his written submissions to suggest that he has not gambled at all since the time of the alleged offences whereas in fact he has continued to gamble outside of casinos. I do not consider that the Applicant's submissions were misleading in this respect. I accept the Applicant's evidence that, since the time of the alleged offences, he has only gambled relatively small amounts of money and has not gambled in a casino. The Applicant is correct that it is perfectly legal to do so. I do not consider that the Applicant currently has a gambling problem. The Applicant's current financial position also appears to be sound. I would not, on the basis of his continued relatively minor gambling alone, find the Applicant was not a fit and proper person to hold a certificate. Applicant's failure to provide transcript of the criminal proceedings to the Respondent 1. However, the Applicant's failure to provide the Respondent with the transcript of the criminal proceedings is of significant concern. While it is true that the Applicant was found not guilty by the jury on the criminal standard of proof there is no question that the evidence in those proceedings as to the Applicant's conduct which gave rise to those charges would be relevant to the Respondent's assessment of the Applicant's fitness and propriety to hold a certificate of registration. The Respondent was entitled, and it was perfectly reasonable, to request that it be provided under s14 of the Uniform Procedures Act. 2. The Applicant in his email dated 18 October 2021 said that he was not required to provide the transcript for privacy reasons. However, the transcript is a record of proceedings which were conducted in public so any claim to privacy is untenable. 3. The Applicant also said that he should not have been required to pay approximately $25,000 to secure the transcript. However, he made no enquiry of either his solicitor or Mr Liu to see whether he may be able to obtain the transcript from them. 4. I do not consider the Applicant's explanations for not taking steps to seek to obtain the transcript either from his solicitor or from his co-accused are adequate. 5. The Respondent submitted that I should infer from the Applicant's refusal to provide or make enquiries to obtain the transcript that the Applicant did not want the Respondent to have the transcript and I agree that that is the necessary inference from the Applicant's conduct with respect to the transcript. 6. I also note that when asked in 2017 for all documentation related to the charges served on the Applicant, the electronic copy of the brief of evidence could and should have been provided to the Respondent. 7. I accept the Respondent's submission that the Applicant has demonstrated in his dealings with the Respondent a disinclination to cooperate with the regulator which is cause for concern quite separate from the conduct giving rise to the alleged offences. 8. As Senior Member Montgomery commented in Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 at [83]: "The legislation that regulates the real estate industry is not only protective of consumers. It also aims to safeguard the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour with the regulator is also required to maintain that public confidence." The reference letters 1. The reference letters provided by the Applicant are also of limited assistance. The letters include three letters provided in 2014 in support of the Applicant's enrolment in the course he undertook at the University of Technology which were provided by a licensed real estate agent, a registered architect and a bank manager respectively. As these letters predate the alleged offences, they are of no assistance to me in addressing the Applicant's fitness and propriety and I give them no weight. 2. The Applicant also seeks to rely on two letters provided in 2021 by the Mayor of a Local Council and a licensed commercial real estate agent in support of an application to enrol the Applicant's child in a private school. Neither letter makes reference to the charges brought against the Applicant and, as such, it is not possible to know whether either of the referees is aware that those charges were laid and the Applicant was prosecuted. Again, as such, I give those letters no weight. 3. The Applicant also relies on an undated letter from his solicitor in the criminal proceedings in support of his application which was sent to the Respondent on 1 October 2021, who states: "[the Applicant] is a good person who does true to what he says. He has a loving wife and young child and he has strong social and business connections here in Australia. His good character is unblemished, as I understand he was found innocent of the criminal charges stemming from the circumstances in July 2016." 4. There is no doubt that the Applicant's solicitor would be fully aware of the charges brought against the Applicant and the evidence that was given in the criminal proceedings. However, the letter does not take the matter very far stating simply that his "good character is unblemished, as I understand he was found innocent" of the charges. Having spent considerable time with the Applicant over the course of the hearing it might be expected that the solicitor would be able to offer more by way of insights into the Applicant's character and, helpfully, why, at least in his view, the Applicant was found not guilty. I give this letter some, but not significant, weight. 5. Finally the Applicant relies on a letter dated 26 April 2022 from a client who has known the Applicant since 2014 and has worked with him on property development opportunities who states: "I understand that [the Applicant] was charged with some dishonesty offence in 2016. I can certainly attest his honesty and integrity of character, trust him is definite an innocent person involved in the proceedings as he is not that kind of person who would commit these offence." 6. As the Respondent submitted it is not clear from the face of this letter whether the writer knows the details of the offences which were alleged against the Applicant or the evidence the Applicant gave in the proceedings as it refers simply to "some dishonesty offence". This may be a matter of language or it may be that details have not been included with a view to preserving the Applicant's privacy. Nevertheless, it reduces the weight that may be given to the letter. The Respondent submitted that I should afford the letter no weight. I agree that it is not appropriate for me to afford it significant weight but I do give it some weight. 7. Evidence was also given at the hearing of the criminal proceedings by a Ms Chen, a real estate agent who has known the Applicant since approximately 2014. Her evidence was that the Applicant is a very honest person and very straight forward who is widely respected in the industry and known as hard working. She was asked whether, knowing the nature of the offences the Applicant was charged with, that changed her opinion of the Applicant to which she replied that it did not. Again, while Ms Chen obviously knew the offences the Applicant had been charged with, it is not known whether she was aware of the evidence given by the Applicant or otherwise in the proceedings. In the circumstances I give some weight to her evidence. Conclusion 1. While I have had regard to Ms Chen's evidence, Mr Zhou's letter and the recent letter from the Applicant's client and I note that the alleged offences occurred some six years ago, the Applicant has not been to the casino since that time and has no criminal history, on balance, in light of the Applicant's failure to acknowledge that his actions on the day of the alleged offences were ill considered, together with his refusal to provide the Respondent with material which was unquestionably relevant to determining his application, I cannot have the requisite satisfaction that the Applicant can currently be accredited to the public as a person who can be trusted to act with the integrity required of a holder of a certificate of registration. 2. I acknowledge there is a difference between a real estate agent's licence and a certificate of registration which requires the holder to be supervised by a licensed agent. I note that if the Applicant had identified a proposed employer who was aware of the alleged offences and who was willing to closely supervise the Applicant, I may have considered remitting the matter to the Respondent to consider whether it may be appropriate to issue a certificate subject to the imposition of conditions as to supervision: Stojanovic v Commissioner for Fair Trading [2008] NSWADTAP 84. However, the Applicant has not identified a potential employer. He remains employed in his own business, Pro J Management Pty Ltd. He said that when he sought registration in 2017 he then had in mind that he would join the business of someone who had a licence for a few years and then seek to obtain his own licence (which I note is not completely consistent with an email he sent to the Respondent at the time of his 2017 application where he indicated that according to his business plan he would need a real estate agent's licence to expand his business and asked whether he could apply concurrently for a certificate of registration and a licence). In any event, he now says, as things have transpired, he does not now have a real need for the certificate. In those circumstances it would not be appropriate to remit the matter to the Respondent to consider the imposition of conditions. 3. The correct and preferable decision is that the decision under review should be affirmed. Orders 1. The decision under review is affirmed. ********** 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: 24 June 2022