Dosovic v Commissioner of Fair Trading [2023] NSWCATOD 58

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dosovic v Commissioner of Fair Trading [2023] NSWCATOD 58 Hearing dates: 11 April 2023 Date of orders: 10 May 2023 Decision date: 10 May 2023 Jurisdiction: Occupational Division Before: J D Little, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW - Property and Stock Agents Act 2002 - Real estate agent - Fit and proper person Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (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 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 Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 Category: Principal judgment Parties: Luke Dosovic (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Marocchi Law (Applicant) Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2023/00002207

REASONS FOR DECISION 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 to refuse the Applicant's application for renewal of his class 2 real estate licence 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(1)(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. As described below, in making the decision under review the Respondent relied on the fact that the Applicant had been charged with certain offences between 2019 and 2021 including but not limited to offences related to prohibited drugs, dealing with the proceeds of crimes and sexually touching without consent. In respect of the latter conviction, this was subsequently set aside by the District Court on appeal. 3. 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 by the Commissioner of Police, New South Wales Police Force to the various Courts that entered the convictions as against the Applicant. Those documents are now in evidence before the Tribunal. 4. 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 ADR Act.