Down v Commissioner for Fair Trading [2006] NSWADT 18

CITATION: Down v Commissioner for Fair Trading [2006] NSWADT 18

DIVISION: General Division

APPLICANT PARTIES: Charles Richard Down RESPONDENT Commissioner for Fair Trading

FILE NUMBER: 053356

HEARING DATES: 16/01/06

SUBMISSIONS CLOSED: 01/16/2006

DATE OF DECISION: 01/19/2006

BEFORE: Handley R - Judicial Member

CATCHWORDS: Property, Stock and Business Agents Act - Real Estate agent - licence or certificate of registration - grant - Real Estate agent - licence or certificate of registration - grant

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Property, Stock and Business Agents Act 2002

Camillos v Commissioner for Fair Trading [2005] NSWADT 216 CASES CITED: Moran v Umback (1966) NSWR 437 Scammell v Ouston [1941] AC 251 Whitlock v Brew (1968) 118 CLR 445

APPLICANT In person REPRESENTATION: RESPONDENT M Grinbergs, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION Background 1 This matter involves an application by Charles Down for the review of a decision of the Commissioner for Fair Trading to refuse Mr Down's application for renewal of his real estate agents' licence and business agents' licence. Mr Down was first issued with a licence in 1971. On 5 May 2005, he applied for the renewal of his licence, which expired on that day. On 10 June 2005, a delegate of the Commissioner decided to refuse Mr Down's application on the ground that he had failed to comply with a condition specified in his licence that he undertake further educational training relating to his licence activities. On 14 September 2005, that decision was affirmed on an internal review and, on 13 October 2005, Mr Down lodged an application for a review of that decision by the Tribunal. The Applicable Law 2 The Property, Stock and Business Agents Act 2002 ('the 2002 Act') requires that real estate agents and business agents operating in NSW must hold a licence (s 8). A natural person is only eligible to hold a licence if he or she has the required qualifications (s14 and s15). Section 15(4) states: "(4) A person does not have the qualifications required for the reissue or restoration of a licence or certificate of registration (as provided by section 26) if the person failed to comply with any condition of the licence or certificate of registration that required the holder to undertake professional development, continuing education or a course of study, unless the Director-General otherwise determines in a particular case." 3 Section 17 provides that the Commissioner "may grant" such licenses. Section 19 states that an application must not be granted unless the applicant is eligible to be granted such a licence. Section 20 permits licenses to be issued subject to conditions including: "(c) a condition requiring a licensee or holder of a certificate of registration to undertake by way of professional development specified further education or training during the term of the licence or certificate of registration." 4 Section 27 provides for the review of decisions refusing to grant a licence by the Tribunal. 5 When the 2002 Act commenced on 1 September 2003, the Commissioner issued Continuing Professional Development ('CPD') requirements and accompanying "Commissioner's Guidelines for Continuing Professional Development" ('the Commissioner's Guidelines'). The Facts 6 There is no dispute about the relevant facts. Mr Down's licence issued on 12 May 2004 stated that it was subject to certain conditions including the following: "1. During each year in which you are a licence holder, you must complete further educational training relating to the activities that may be carried on in respect of your licence. The suitability of that education and the manner of calculating the time which you spend on it must satisfy the requirements set by the Office of Fair Trading." 7 By letter dated 7 February 2005, Mr Down said, as a small agency, he could not afford to pay large amounts of money for extra training and no suitable program was available in Wagga Wagga. He asked whether there were any exceptions for a person in his circumstances. By letter dated 15 February 2005, the Office of Fair Trading responded providing information about the CPD requirements, a copy of the Commissioner's Guidelines, a list of course providers and a direct link to the relevant information on the Office of Fair Trading's website. 8 By letter dated 2 March 2005, Mr Down sought an exemption under clause 10 of the Commissioner's Guidelines on the ground that no suitable CPD program was available in Wagga Wagga, he could not afford to pay high fees to join the Real Estate Institute and/or to do their courses in order to comply, and because he is mainly interested in selling larger commercial properties that may take a long time to sell before he has any money to spend on further education. 9 The relevant clause in the Commissioner's Guidelines dealing with exemptions is clause 10. This states: "In extenuating circumstances the Commissioner may exempt a licensee or certificate holder from completing part or all of the requirements for continuing professional development. Circumstances for granting an exemption are limited and may relate to serious illness or misadventure." 10 In a telephone call and in a letter dated 24 March 2005, Mr Down was advised by the Office of Fair Trading that an application for an exemption could only be made with his application for licence renewal, that circumstances for granting an exemption were limited, and that if his application for exemption were refused, then renewal of his licence might also be refused. 11 Mr Down's application for renewal of his licence was received at the Office of Fair Trading in Wagga Wagga on 5 May 2005. He stated he had not complied with all the conditions of his licence because he could not afford to pay the exorbitant fees for CPD and no suitable CPD program was available at the TAFE College in Wagga Wagga. By letter dated 10 June 2005, after an enquiry from Mr Down by fax the previous day, a delegate of the Commissioner notified Mr Down of his decision to refuse the renewal of his licence. This decision was confirmed on an internal review on 14 September 2005. Submissions and Discussion 12 There is no dispute that Mr Down has not complied with the condition imposed on his licence requiring him to complete further educational training. The first issue is whether that condition is enforceable. Section 20(c) of the 2002 Act empowers the Commissioner to issue licenses subject to conditions requiring the licensee to undertake further education of training by way of professional development. 13 Mr Down submitted that the condition on his licence was too vague to be enforceable, citing the decisions in Scammell v Ouston [1941] AC 251, Whitlock v Brew (1968) 118 CLR 445, and Moran v Umback (1966) NSWR 437 in support of his contention. He also drew attention to the fact that the condition did not specify the further education or training he was required to undertake in accordance with clause 20 of the Commissioner's Guidelines. 14 Mr Grinbergs, for the Commissioner, said the aims of the CPD requirements as stated in the Commissioner's Guidelines are to increase levels of consumer protection, promote professionalism, improve the knowledge and skills of practitioners, encourage high standards and maintain public confidence. Mr Down was made aware of the CPD requirements by the condition on his licence issued on 12 May 2004. His letter to the Commissioner dated 7 February 2005 indicated that Mr Down clearly understood the requirement for him to complete a CPD program, and further information was provided to him with the response from the Commissioner's office dated 15 February 2005. There is no evidence that Mr Down enquired of any of the course providers at that time except the Real Estate Institute and the TAFE College at Wagga Wagga. A number of the distance education providers offer flexible and cheaper alternatives to the programs offered by the Real Estate Institute. 15 Mr Grinbergs said Mr Down was also aware of the consequence of his not complying and of his application for an exemption being unsuccessful, following his telephone conversation with an officer at the Office of Fair Trading and her subsequent letter to him dated 24 March 2005. 16 In my view, the condition imposed on Mr Down's licence clearly requires him to complete relevant further educational training. Mr Down's actions in contacting the Office of Fair Trading and the enquiries he made of the Real Estate Institute and Wagga Wagga TAFE College indicate that he understood the requirement. At the hearing, he also said he considered CPD to be "a good idea" although in his opinion the cost should be borne by the relevant government department. 17 Mr Down noted the condition in his licence did not specify the further education or training he was required to undertake. In my view, it would be unrealistic to expect this and it was sufficient for the condition to make clear – as it did - that the further education or training undertaken must satisfy the requirements set by the Office of Fair Trading. The Commissioner's Guidelines provided to Mr Down sought to address these requirements and the Office of Fair Trading also provided him with information about course providers. 18 I therefore conclude that the condition imposed on Mr Down's licence was valid and not void for uncertainty, and was binding on him. 19 The second issue is, notwithstanding Mr Down's failure to comply with the condition, whether the Commissioner's discretion to re-issue Mr Down with a licence should be exercised. The Commissioner's Guidelines, which I take to be a statement of government policy to which the Tribunal must give effect pursuant to s 64 of the Administrative Decisions Tribunal Act 1997, state that the discretion to exempt a person from the CPD requirements should only be exercised in limited circumstances and "may relate to serious illness or misadventure". 20 Mr Down said he has kept up to date with relevant legislation and legislative changes. He expressed frustration at the difficulty he has experienced in finding out about the CPD requirements, and said that he would prefer further training to be face-to-face rather than by distance education. Mr Down said he has recently made enquiries of two course providers and successfully contacted Railcoach who were very helpful in explaining the CPD requirements. He asked that if the Tribunal is not minded to overturn the Commissioner's decision, then he should be issued with a licence provisionally, enabling him to resume work but requiring him to complete the necessary CPD with a reasonable period of, for example, six months. He said that after 30 years experience and payment of licence fees, the Office of Fair Trading should give him fairer treatment and more understanding. 21 Mr Down said he is currently receiving an age pension and, for a person in his situation, the cost of the CPD programs is prohibitive. He provided evidence to the Office of Fair Trading (the 2005 Licensee Trust Moneys Return for the year ended 30 June 2005) showing that he did not earn any money or hold any money in trust in that year, partly because of bad luck and partly because his concentration on larger commercial sites/premises means it can take a year or two to sell them. He contended that the meaning of the word "misadventure' used in clause 10 of the Commissioner's Guidelines includes such bad luck, and referred to the definition of "misadventure" in the Concise Oxford Dictionary as including "bad luck". He was "appalled" that there were no reported decisions of the Tribunal relating to the exercise of the Commissioner's discretion. He submitted that the decision of the Tribunal in Camillos v Commissioner for Fair Trading [2005] NSWADT 216 was of no relevance because the facts were dissimilar, concerning Mr Camillos having failed to complete the required practical experience for a licensed conveyancer. 22 Mr Grinbergs cited the definition of "misadventure" in the Macquarie Dictionary, which refers to the word meaning ill fortune, mishap or accident, and submitted that Mr Down has not provided evidence of any of these. His concentration on larger commercial sites/premises is a matter of the way in which he has chosen to operate his business. Mr Grinbergs submitted that to operate any kind of small business, CPD costs of about $500 are nominal. In the absence of any evidence of illness or misadventure, it is only in limited circumstances that the discretion to exempt may be exercised. 23 Mr Grinbergs referred to the decision in Camillos v Commissioner for Fair Trading [2005] NSWADT 216 in support of his contention that the discretion to waive the requirements for supervised employment/professional training should only be exercised on rare occasions and in special circumstances. In such licensing matters, the protection of the public is paramount. 24 I am not satisfied that Mr Down's circumstances warrant the exercise of the Commissioner's discretion to exempt Mr Down from complying with the CPD requirements imposed by the condition on his licence. Mr Down does not suffer from serious illness and, in my view, has not been affected by misadventure. The relevant meaning of 'misadventure' relied on by Mr Down from the Concise Oxford Dictionary is 'bad luck' which I take to mean the same as that of 'ill fortune' from the Macquarie Dictionary, cited by Mr Grinbergs. Mr Down has chosen to pursue the sale of commercial property/premises in his business with the result that successful sales are less frequent than might otherwise be the case with residential property. I do not accept that the result of Mr Down's conscious choice of business strategy can be said to amount to bad luck or ill fortune. When he made that choice, having been in the business for more than 30 years, he must have been aware of the consequences. Nevertheless, I accept that his business experienced tough conditions in the financial year ending 30 June 2005. 25 Mr Down has also drawn attention to other extenuating circumstances, in particular his lack of income, reliance on social security and professed financial difficulty in paying for CPD programs, and the lack of availability of face to face programs at a reasonable cost within a reasonable distance of Mr Down's business near Wagga Wagga. Mr Down now accepts that such programs are available by distance education at a lower cost that those available through the Real Estate Institute, and that, with assistance, he could probably undertake such programs. However, like some others in the community, he would prefer face-to-face contact. Mr Grinbergs submits that the costs involved in the distance education programs are nominal even in the operation of a small business. He also draws attention to the consumer protection objective of imposing such CPD requirements and the need to limit the waiving of CPD requirements to rare and special circumstances. 26 Having considered Mr Down's submissions, I am not satisfied that he has made out a case for the exercise of the Commissioner's discretion to exempt him from the further education and training requirement imposed by the condition on his licence. In my view, his personal circumstances do not override the objectives of the CPD scheme as expressed in the Commissioner's Guidelines. I also take the view that it would not be appropriate to re-issue Mr Down with some form of provisional licence requiring him to complete the CPD requirements within a specified limited time. When he chose to apply for the exemption at the time of applying for the re-issue of his licence, he was advised by the Office of Fair Trading that the exemption was only granted in limited circumstances. He was aware of the consequences of his application for exemption being unsuccessful. It is now open to him to complete the CPD requirements and re-apply for the re-issue of his licence having done so. Decision The Tribunal therefore affirms the decision of the Commissioner dated 14 September 2005.