CITATION: Yelland v Commissioner for Fair Trading [2005] NSWADT 293 DIVISION: General Division APPLICANT PARTIES: Lindsay Yelland RESPONDENT Commissioner for Fair Trading, Office of Fair Trading FILE NUMBER: 053094 HEARING DATES: 4/07/2005 SUBMISSIONS CLOSED: 07/04/2005 DATE OF DECISION: 12/13/2005 BEFORE: Montgomery S - Judicial Member APPLICATION: Property, Stock and Business Agents Act - Real Estate Agent - grant of authority - Real Estate Agent - grant of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes Act 1900 Licensing and Registration (Uniform Procedures) Act 2002 Property, Stock and Business Agents Act 2002 Bek v Commissioner for Fair Trading [2004] NSWADT 149 CASES CITED: Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138 Parvin v Commissioner for Fair Trading [2005] NSWADT 34 APPLICANT REPRESENTATION: G Jemmeson, Solicitor RESPONDENT J Coss, Solicitor ORDERS: The Decision to refuse to grant Mr Yelland's application for renewal of his real estate agent's licence is affirmed REASONS FOR DECISION 1 Mr Yelland has been registered in the real estate industry since 1998 and a licensed agent since 29 November 2000. He has applied for the renewal of a real estate agent's licence under the Property Stock & Business Agents Act 2002 ("the Act"). 2 Question 1 on the licence application form asks 'Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?' Mr Yelland responded 'Yes' in answer to that question. A criminal history record issued by the New South Wales Police Service indicated that Mr Yelland had been charged and convicted as follows:- 17/06/1999 Low Range PCA - Drive Vehicle Fine $350 Disqualification: 3 months concluding 16/09/1999, Court costs $52 20/04/2004 Drive with Middle Range PCA, Fine $1500 Court costs $61 Disqualification: 12 mths commencing 05/03/2004. 20/10/2004 Drive While disqualified from holding a licence, Fine $1000 Court costs $63 Disqualification: 2 yrs commencing 06/03/05, Bond S9: 2 yrs Driver/rider state false name or address Fine $200 3 The Commissioner refused Mr Yelland's application for the renewal of his licence because of the most recent offences. Mr Yelland has sought an external review of the determination in the Tribunal. Pursuant to section 55(2)(c) of the Administrative Decisions Tribunal Act 1997, it was determined to hear the matter in the absence of an internal review in order to protect Mr Yelland's interests. The applicable law 4 Section 3(1) of the Act defines a real estate agent as follows:- "real estate agent" means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of land or as an agent: (a) for a real estate transaction, or (b) for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or (c) for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or (d) collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or (e) for any other activity in connection with land that is prescribed by the regulations for the purposes of this definition. but does not include a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the regulations otherwise provide. 5 Section 8(1)(a) of the Act provides that a person can not act or carry on the business of a real estate agent, unless the person is the holder of a real estate agent's licence 6 Section 14(1)(d) of the Act provides that a person is ineligible to hold a licence if that person is a disqualified person. 7 Section 16(1)(a) of the Act provides that a person is a disqualified person if the person, has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Commissioner has determined under subsection (2) that the offence should be ignored 8 Section 16(2) of the provides that the Commissioner may determine that an offence committed by a person may be ignored because of the time that has passed since the offence was committed or because of the triviality of the act or omissions giving rise to the offence. 9 Section 19 states that an application must not be granted if the applicant is ineligible to be granted a licence 10 Section 15 of the Licensing and Registration (Uniform Procedures) Act 2002 provides for the advertising o a licence application and the making of submissions to the relevant licensing authority with respect to the application. Section 18 of that Act states: "18 Decision on applications (1) A licensing authority may make either of the following decisions with respect to an application: (a) a decision to grant the application, either unconditionally or subject to such conditions as are authorised or required by the relevant licensing legislation, (b) a decision to refuse the application. (2) Before making its decision with respect to an advertised application, the licensing authority must have regard to such submissions as have been made in accordance with section 15." Mr Yelland's case 11 Mr Yelland says that he has never come to the attention of the Office of Fair Trading for any breaches in respect to the Act. To his knowledge there has never been any complaints in respect to his trading activities as a real estate agent. 12 Mr Yelland concedes that he has the criminal history as asserted and he does not resile from the fact that he does not have an exemplary driving record. On two occasions he has driven his motor vehicle whilst affected by alcohol. However, he asserts that while his stating a false name to a police officer is certainly a defect of character it certainly was not an act of dishonesty. 13 Mr Yelland says that during the period of his licence disqualification his business partner, Andrew Rocks, would normally assist him by driving him home and transferring open house boards and other marketing paraphernalia. On the day that he gave the false name to police, Mr Rocks left the office due the illness of his infant son. Mr Yelland decided to drive a motor vehicle himself and transport the materials. Whilst driving, he was routinely stopped by a NSW police highway patrol vehicle and asked for his licence. Mr Yelland says that he panicked and without any forethought, provided a false name to the police officer. 14 He says that he has no reasonable excuse for his behaviour. He had no intention to mislead or deceive for any material gain. His behaviour has cost him a substantial fine together with a disqualification from driving for a 2-year period. 15 Mr Yelland asserts that this was a one-off incident and asks that the Tribunal take his good record within the industry into account. He argues that the offence is not one that would warrant such drastic action as to disqualify his licence. Further, he says that the conviction does not impinge into his day-to-day world as a real estate agent and that the public can confidently deal with him with the knowledge that behaviour of this kind will not occur again. He expressed great contrition in relation to the incident and refers to the impact that it has had on his life and the consequences of a finding against him in this matter. 16 A number of references have been provided on Mr Yelland's behalf. Mr Rocks, the author of one of those references attended the hearing and gave evidence in support of Mr Yelland's application. Mr Michael Jaeger, Business Development Manager with Great Southern Securities and two of Mr Yelland's clients, Mr Phillip Allen and Mr Mark Penfold, have also provided written references. Each indicated that they have found Mr Yelland to be honest and ethical and that this incident was out of character. 17 Mr Jemmeson argues that the offence of which Mr Yelland was convicted is not an offence under the Crimes Act 1900 and it was not committed to gain materially. He submits that the Act is protective and is designed to ensure that licence holders have the requisite level of competence and that consumers will be treated ethically. He further argues that the Tribunal can be confident that Mr Yelland has learned his lesson from the incident. He says that it is not an offence of theft or fraud such as would lead consumers to lack confidence in Mr Yelland's business dealings. 18 Mr Jemmeson argues that the decision in Parvin v Commissioner for Fair Trading [2005] NSWADT 34 should not be seen as relevant to this matter and should be distinguished on its facts. He contends that Mr Parvin had made several false statements whereas in Mr Yelland's was a one off incident. He submits that while this is not a trivial matter, the Tribunal should exercise its discretion and allow the renewal of Mr Yelland's licence. The Commissioner's case 19 The Commissioner contends that Mr Yelland is a disqualified person in accordance with section 16(1)(a) of the Act. Mr Coss asserts that Mr Yelland has been convicted of stating a false name or address to a police officer and that this is an offence involving dishonesty. 20 Mr Coss argues that the discretion to grant the application is under section 16(2) of the Act. That subsection provides that an offence may be ignored for the purposes of the Act on the basis of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. He says that Mr Yelland's offence is not a trivial one and the period of time that has passed since the offence is not sufficient to warrant ignoring it. 21 Mr Coss referred to decisions in Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138 and Bek v Commissioner for Fair Trading [2004] NSWADT 149 where licences were granted. In Bek a period of 3 ½ years had passed since the offence. The period that had passed since the offence in Eleter was similar. In Parvin a period of two years was considered to be insufficient. 22 Mr Coss argues that little weight should be given to the references given on behalf of Mr Yelland as there are no references from others involved in the real estate industry. 23 Mr Coss urged the finding that insufficient time has passed to allow the offences to be ignored and therefore the decision under review should be affirmed. Findings 24 I agree with the Commissioner's view that Mr Yelland's offence was an offence involving dishonesty that was recorded in the last 10 years. In Eleter Lees JM stated at paragraph 49 of her decision: "It is enough that dishonesty is involved in the offence in a way which most people would understand the term (see Pollard v Commonwealth DPP (1992) 28 NSWLR 659). In Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 the Tribunal Deputy President stated at para. 18: '… Dishonesty" is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." … The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act.'" 25 I agree with that view. 26 I also agree with the Commissioner that the offence is not trivial. There can be no doubt that Mr Yelland gave false information to police in order to avoid the consequences of his action. Those actions were in direct violation of a Court-imposed disqualification based on prior conduct. Mr Yelland was clearly aware that he was acting in contravention of the Court order. His reasons for doing so were purely matters of convenience. With the exception of perhaps his contrition, I am unable to point to any aspect of these circumstances that do Mr Yelland any credit. In my view, there is no reason that this offence should be ignored on the basis of triviality. 27 The only other basis on which it can be ignored is the passage of time. It is now some 14 months since the incident occurred. It is necessary that I determine whether sufficient time has passed since the offence is not sufficient to warrant ignoring the offence. In my view it has not. I am unable to give any indication as to what would be sufficient time. 28 In these circumstances it is my view that the offence should not be ignored. Accordingly, the correct and preferable decision is that Mr Yelland's application should not be granted. Therefore, the decision under review should be affirmed. Order The Decision to refuse to grant Mr Yelland's application for renewal of his real estate agent's licence is affirmed. 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