CITATION: Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284 DIVISION: General Division APPLICANT PARTIES: Frank Nizhnikov RESPONDENT Commissioner for Fair Trading FILE NUMBER: 063183 HEARING DATES: 26/09/2006 SUBMISSIONS CLOSED: 09/26/2006 DATE OF DECISION: 10/03/2006 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 : Crimes (Sentencing Procedure) Act 1999 Property, Stock and Business Agents Act 2002 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Harries v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 203 CASES CITED: Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 Re Habis (Licensing Court of NSW, unreported, 9 July 1998) APPLICANT M Galvin, barrister REPRESENTATION: RESPONDENT V Griswold, solicitor ORDERS: The decision under review is affirmed REASONS FOR DECISION 1 This matter involves an application by Frank Nizhnikov for a review of the decision of the Commissioner for Fair Trading to refuse Mr Nizhnikov's application for the grant of a certificate of registration as a real estate salesperson on the ground that he is not a fit and proper person to hold such a certificate. Mr Nizhnikov has a recent criminal history. Background 2 Mr Nizhnikov was born in Australia on 14 January 1982 and is aged 24. On 28 December 2005, Mr Nizhnikov lodged an application for a certificate of registration as a real estate salesperson under the Property, Stock and Business Agents Act 2002 ('the 2002 Act'). In answer to the question "Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?", Mr Nizhnikov answered "yes". On a separate sheet, he stated that he was "charged with assault early 2005 & hope it doesn't effect [sic] my career in real estate As I am a motivated salesman that is Result drive And have never misled any persons in business practice ...". Mr Nizhnikov completed the Real Estate Certificate of Registration course on 14 February 2005. Since 25 November 2005, he has been working for Kingsford First National Real Estate as an office assistant. 3 Mr Nizhnikov's criminal history is as follows: 18 February 2003 : charged with "have custody of an offensive weapon in a public place" – convicted and fined $100. 18 February 2003: charged with "Possess Prohibited Drug" – dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. 7 July 2005: convicted of "Enter building/land w/i [with intent to] commit indictable offence" in relation to an incident on 30 December 2004 – sentenced to 18 months imprisonment, with a non-parole period of 12 months. On appeal to the District Court against severity of sentence, the Court, on 3 August 2005, reduced the sentence to a 12 months suspended sentence (pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999) on his entering into a Good Behaviour Bond for 12 months, and with supervision by the NSW Probation and Parole Service. 7 July 2005: convicted of "Assault occasioning actual bodily harm" in relation to the incident on 30 December 2004 – sentenced to 9 months imprisonment, with a non-parole period of 6 months. On appeal to the District Court against severity of sentence, the Court, on 3 August 2005, reduced the sentence to a Good Behaviour Bond for 2 years (pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999), with supervision by the NSW Probation and Parole Service. This Bond expires on 2 August 2007. 4 On 16 January 2006, the NSW Probation and Parole Service requested termination of the s 12 Bond and, on 23 January 2006, this was mentioned before Judge Soloman who agreed to the termination. 5 On 27 February 2006, a delegate of the Commissioner refused to grant Mr Nizhnikov a certificate of registration as a real estate salesperson on the ground (1) he had been convicted of an offence involving dishonesty and so was disqualified from holding a certificate of registration, and (2) he is not a fit and proper person to hold a licence or certificate of registration because of his recent criminal history. On 5 April 2006, this decision was confirmed on an internal review. On 27 April 2006, Mr Nizhnikov applied to the Tribunal for a review of this decision. The Commissioner subsequently conceded that Mr Nizhnikov has not been convicted of an offence involving dishonesty. The only issue before the Tribunal, therefore, is whether Mr Nizhnikov is a fit and proper person to hold a certificate of registration as a real estate salesperson. The Applicable Law 6 Section 14(3) of the 2002 Act provides relevantly that a person is eligible to hold a certificate of registration only if the Commissioner is satisfied that the person "(b) is a fit and proper person to hold a certificate of registration". The meaning of 'fit and proper person' is discussed below. Mr Nizhnikov's Evidence 7 Mr Nizhnikov gave oral evidence at the hearing. He said he is the eldest of two children in his family, with whom he lives in Rosebay. He attended Vaucluse High School but decided to leave after getting into trouble at school. He begged the office staff not to tell his father about what had happened because he was afraid for his safety. He subsequently attended Maroubra High School with a view to completing his School Certificate but left in Year 9 before doing so. Mr Nizhnikov denied he had been expelled from either school. After leaving school, Mr Nizhnikov worked with his father as a gyprocker for about 10 months. He then had various other jobs and enrolled in various courses including a real estate course at TAFE, which he did not initially complete. 8 The incident on 18 February 2003 occurred when Mr Nizhnikov was stopped by police when driving home from a picnic with his girlfriend at Manly Dam. He had picnic utensils in the car including a kitchen knife in the glovebox. This was the offensive weapon for possession of which he was charged. He was also charged with possession of a small quantity of marijuana, which was for his personal use. No conviction was recorded in respect of this charge. He had been using marijuana since the age of about 11 or 12. 9 In 2004, Mr Nizhnikov moved out of home to live with his girlfriend at Dover Heights. This was a long term but sometimes troubled relationship. He was unemployed and bored, his life was upside down, and he became very depressed. For a period of about six months, he was using heavy drugs such as cocaine and heroin, as well as drinking alcohol. The drugs just made his depression worse. 10 The incident on 30 December 2004 occurred when he went (alone) to confront his former next-door neighbour, Mr Bursill, who Mr Nizhnikov believed was interfering with his relationship with his girlfriend, and who, Mr Nizhnikov said, had made threatening phone calls. Mr Nizhnikov took with him a knife and a one metre long stick. When Mrs Bursill opened the door, he put his foot in the door to push his way in and hit Mrs Bursill on the shoulder with the stick. 11 After his conviction by the Magistrate on 3 July 2005, Mr Nizhnikov spent about a month in prison before being released when his appeal in the District Court against the severity of his sentence was successful. After his release, he completed an anger management course, which he said everybody coming out of prison had to do. Nevertheless, he found the course helpful. He has not taken drugs for 14 months. His supervision by the Probation and Parole Service ended early this year. However, his two year Bond does not expire until August 2007, and he acknowledged that he could be called back before the Court if he violated his Bond. 12 Mr Nizhnikov agreed that a person must pay for their crimes. He said it was never his intention to gloss over his convictions or mislead when he completed the application for a certificate of registration as a real estate salesperson. He assumed the Office of Fair Trading ('OFT') would do a criminal background check. Mr Nizhnikov said he had approached his referees personally to ask them for references and had informed them of his criminal record. 13 Mr Nizhnikov said his goal is to turn his life around and make a career for himself. He completed the real estate Certificate of Registration course at a private college and wants to sell property as a real estate agent – he loves this work. He is now happy and well grounded, and will never re-offend. He would be prepared to have conditions attached to a certificate of registration if thought desirable. Mr Nizhnikov said he has worked for Kingsford First National Real Estate since November 2005 on an unpaid basis as an office assistant, undertaking office administration and clerical work. He is receiving newstart allowance from Centrelink who are aware he is working for Kingsford First National. Submissions 14 Mr Galvin, for Mr Nizhnikov, said Mr Nizhnikov has rehabilitated himself completely. While he has a history of drug use and has committed serious offences, these were one off events in his life and it is very unlikely that he will re-offend. Mr Nizhnikov pleaded guilty at the earliest opportunity and has paid the price. The Probation and Parole Service requested the termination of supervision, and Judge Soloman in the District Court agreed to this. It is a relatively short time to the expiry of his two year Bond. While acknowledging the overriding interest in protecting the public in such matters, Mr Galvin submitted the public would be adequately protected if Mr Nizhnikov were granted a licence. Mr Nizhnikov has submitted references as to his good character. He is a young man and he needs a chance. 15 Mr Galvin emphasised that this matter is not about dishonesty. In completing his application for a certificate of registration, Mr Nizhnikov disclosed that he has convictions. His additional statement at the end of the application was a reflection of what was in his mind. He believed the OFT would make further enquiries about his criminal record. 16 Ms Griswold, for the Commissioner, said that while the change in Mr Nizhnikov is to be commended, his convictions are not one off events and include serious offences for which he was convicted just over a year ago. At this stage, he has been employed for less than a year and the evidence that he has changed is not conclusive. While she agreed Mr Nizhnikov needs a chance, she noted that he remains on a Bond until August 2007. That might be the appropriate time to consider whether he is a fit and proper person to be granted a certificate. For the moment, insufficient time has passed to demonstrate that he is a fit and proper person and greater weight needs to be given to the public interest. Discussion 17 The parties referred the Tribunal to a number of court and tribunal decisions where what constitutes a 'fit and proper person' was discussed. Mr Galvin referred to the recent Tribunal decision in Harries v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 203, where Montgomery JM recognised that whether a person is 'fit and proper' involves a value judgement by reference to the activities in which the person is engaged (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason at par 63; see also Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127 at 156). He stated, at par 56: "A number of factors are relevant and should be taken into account in determining whether a person is fit and proper to hold a licence. Those factors include the nature, seriousness, and frequency of the offences for which the person has been found guilty or convicted; the nature, seriousness, and frequency of any complaints made against them; and the likelihood that the person will re-offend or be the subject of further complaints." 18 Ms Griswold referred the Tribunal to the decision in Re Habis (Licensing Court of NSW, unreported, 9 July 1998). In that case, the fact that the applicant was still under a bond in respect of an offence, and where less than one year had elapsed since the proceedings were finally disposed of, were factors that the Magistrate took into account in deciding that the applicant was not a fit and proper person to be granted the certificate sought. This decision was referred to in McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 ('McEvoy'), where Lloyd J decided that a person who was still under a Bond in respect of a serious criminal offence could not be said to be a person of good character. However, His Honour acknowledged that the applicant might be able demonstrate by subsequent conduct that he is a person of good character, and overcome the shortcomings displayed to the present time. 19 I am not satisfied on the evidence that Mr Nizhnikov intended to mislead the OFT in the wording he used in the additional statement attached to his application for a certificate of registration. He had already answered "yes" to the question asking whether he had been convicted of any offence, and the fact that he referred to having been "charged with assault" does not, in my view, of itself indicate an intention to mislead. It was reasonable for Mr Nizhnikov to assume that his criminal record would be investigated, as of course, it was. 20 Mr Nizhnikov was open and forthright in describing his background and the events surrounding his convictions, and in answering questions in cross-examination. He acknowledged the mistakes he has made and the goal he has been pursuing in turning his "life around". His conduct since his release from prison when his appeal against the severity of sentence succeeded on 3 August 2005 has been commendable. Judge Soloman terminated Mr Nizhnikov's supervision by the Probation and Parole Service on 23 January 2006 at the request of the Service because of his compliance with his obligations and his efforts to address his offending behaviour. He is obviously enjoying his presently unpaid work as an office assistant at Kingsford Real Estate and, having completed his Certificate of Registration course, is keen to pursue a career in this field. 21 However, it is still only 15 months since his conviction for two serious offences, and he remains on a Good Behaviour Bond in respect in the offence of "assault occasioning actual bodily harm" until 2 August 2007. In my view, in these circumstances it is too soon to be sure that he is a fit and proper person to be granted a certificate of registration as a real estate salesperson. The public would not expect that a person who has fairly recently been convicted of two serious offences and who is still on a Good Behaviour Bond in respect of one of the offences, would be granted such a certificate. 22 I recognise that this will be discouraging for a young man who is keen to pursue his chosen career and for whom time is of the essence. He will, however, have to be patient. As was recognised in Re Habis and McEvoy, it is up to Mr Nizhnikov to continue to demonstrate by his good conduct that his rehabilitation has been complete and that he is indeed a fit and proper person to be granted a certificate. A more appropriate time to consider this issue would seem to be after his Bond has expired. Decision 23 The decision under review is affirmed. 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.