Land and Environment Court of New South Wales CITATION : Thomson And The Land Agents Act, 1927 [1988] NSWLEC 150 PARTIES : APPLICANT George Ross Thomson FILE NUMBER(S) : 30289 of 1988 CORAM: Holland J KEY ISSUES: :- Land Agents Act 1927 Real Propertys Act 1900 Conveyancing Act 1919 Legal Profession Act 1987 LEGISLATION CITED: Land And Environment Act 1979 Crown Lands Act The Closer Settlements Acts The Returned Soldiers' Settlement Act, 1916 The Western Lands Acts Miscellaneous Acts (Planning) Repeal and Amendment Act, 1979 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 12/02/1988 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: George Ross Thomson applies to the Court to be registered as a land agent under the Land Agents Act, 1927. The Law Society of New South Wales appeared by counsel to object. A land agent is defined by the Act as follows:- "'A land agent' means a person acting for fee, gain, or reward in any matter or proceeding under the Crown Lands Act, or the Closer Settlements Acts, or the Returned Soldiers' Settlement Act, 1916, or under the Western Lands Acts, or under any other Act the administration of which is or may be by statute, customs, or executive authority vested in the Minister for Lands, or in any matter or proceeding under any of such Acts before the Land and Valuation Court or any local Land Board." Section 4(1) of the Act requires that all land agents shall be registered in the Court and subsection (5) provides as follows:- "(5) No person shall be qualified to be registered if he - (a) is under the age of 21 years at date of application for registration; or (b) does not satisfy the Court as to his good fame and character. The Minister for Lands or any other person shall be entitled to be heard and to adduce evidence upon any such application." The Land Agents Act commenced on 1 January 1927. It does not apply to a barrister or solicitor of the Supreme Court of New South Wales: s.(2). By the Miscellaneous Acts (Planning) Repeal and Amendment Act, 1979 the Land and Environment Court was substituted for the Land and Valuation Court as the court for the purposes of the Act. Section 12 of the Act gave the Court power to make rules for the registration of land agents and other specific matters and generally for carrying the provisions of the Act into effect. Rules were made by the Land and Valuation Court and published in the Government Gazette of 13 May 1927. No new rules under the Land and Environment Court Act, 1979 have been made. The original rules made by the Land and Valuation Court in 1927 continued to be followed in dealing with applications to this Court for registration. Certain questions of principle and the proper construction to be placed on the Land Agents Act have been the subject of decisions which I propose to follow and apply in dealing with the present application. I should say that I respectfully agree with each of the points of principle and rulings on the construction of the legislation which these cases decided. The first decision I refer to is In re Arnold (1932) 11 L.V.R.14 in which the only question was whether the Court was satisfied that the applicant for registration was of good fame and character. Pike J. decided two points of general application. At p.14 he said:- "The Court acts in order that the public may be protected and that persons who receive the imprimatur of the Court should be such that the Court can fairly recommend them to the public as honest persons in whom confidence may be reposed." He also said, at p.17, that, as regards procedure, under the statute the onus was cast upon the applicant of satisfying the court as to his fame and good character. A question which did not arise in Arnold's case was raised as a preliminary point in the application of Aubin to this Court for registration under the Land Agents Act. The question was whether the fitness or competence on the part of an applicant to perform the functions of a land agent was a matter upon which the Court was entitled or required to be satisfied before registration under the Act was effected. Judgment on that question was delivered by Perrignon J. on 10 July 1984 (No. 30380 of 1983). Perrignon J. dealt with the question comprehensively in a fully reasoned judgment in which he reached the following conclusion:- "I am of the opinion that the Land Agents Act, in providing for the registration of applicants as land agents, confers upon the Court a discretion the ambit of which is not confined to matters relating to age and good fame and character but extends to matters relating to the fitness or competence of the applicant to perform the functions and duties of a land agent. I think that the extension of the discretion to matters of fitness or competence is to be derived by implication from the language of the Act viewed in the light of its scope and object. The word "shall" in s.4(1) of the Act, which requires that all land agents "shall" be registered in the Court, does not in my opinion impose an absolute duty upon the Court to register an applicant once he establishes that he is not disqualified by virtue of section 4(5): In Re Davis (1947) 75 C.L.R. 409 at p.418. Registration is denied by s.4(5) to a person who is under 21 years or who does not satisfy the Court as to his good fame and character but that subsectio n is expressed negatively and does not in terms confer a right to registration upon a person who establishes that he is not disqualified by the terms of that subsection. Nor are the concluding words thereof so expressed as to restrict to the subjects dealt with in paragraphs (a) and (b) the matters upon which the Minister for Lands or any other person is entitled to be heard or to adduce evidence. Aubin's case proceeded before Perrignon J. upon the basis of the foregoing conclusion and his judgment in the matter was delivered on 10 October 1984. As a result of his decision on the preliminary point, His Honour became concerned with the nature and extent of the functions and duties of a land agent. After referring to the definition of "land agent" in the Act which I have already quoted, His Honour dealt with the question whether the words "under any other Act" in that definition should be read eiusdem generis with the preceding words, a question which, as His Honour pointed out, assumed importance because of the transfer, under the Administrative Changes Act, 1976, of a large number of Acts from the administration of the Minister for Lands to the Minister for Natural Resources. At the time of His Honour's judgment that transfer had been effected by notification in the Government Gazette of 13 April 1984 by which not only were various Crown Lands Acts, Closer Settlement Acts, Return Soldiers'Settlement Ac ts and Western Lands Acts transferred, but also the Real Property Act, 1900 and the Conveyancing Act, 1919 and certain amendments to those two Acts. The latest allocation of the administration of Acts was made by a notice, dated 26 October 1988, published in the Government Gazette of 31 October 1988 (No. 164, 1988). A very large number of Acts continue to have been transferred to the Minister for Natural Resources in place of the Minister for Lands and these still include the Conveyancing Act, 1919 and the Real Property Act, 1900. His Honour expressed his conclusion on the question as follows:- "I am of the opinion that the words "or any other Act" in the said definition should be read eiusdem generis with the words preceding them, with the consequence that the matters or proceedings in which a land agent may act for fee, gain or reward are confined to matters or proceedings under the Acts expressly named in the said definition of land agent and to Acts eiusdem generis with them. I think that this conclusion follows from a consideration of the object and scope of the said definition and of the Act generally. The Acts expressly mentioned in the definition are part of a series of enactments dealing with the regulation and alienation of lands which are vested in the Crown. As such they form part of a category or genus which imparts to the succeeding words a more restricted meaning than might otherwise be accorded to them. It is unnecessary in these proceedings to determine which particular Acts the subject of the administrative transfer are eiusdem generis with those expressly mentioned in the definiti on of land agent. I am of the opinion, however, that they do not include the Real Property Act or the Conveyancing Act or the amendments thereof the subject of the administrative transfer already referred to." In conformity with these decisions, the Court must consider Mr. Thomson's application for registration as a land agent upon the footing that he bears the onus of satisfying the Court not only that he is a person of good fame and character, but also, by qualifications and experience, possesses the necessary fitness and competence to perform the duties and functions of a land agent, taking into account that such registration by the Court is required for the protection of the public. As Perrignon J. said in his judgment of 10 October 1984:- "The fitness or competence required is such that, when considered in conjunction with age and good fame and character, the Court should be able to accredit the applicant as being worthy of public confidence in the carrying out of the functions and duties of a land agent." In accordance with the rules, Mr. Thomson filed a Statutory Declaration that he was over the age of 21 years and of good fame and character and furnished two Statutory Declarations, also as to his good fame and character, one by a non-practising barrister of Belmont who had known him personally for 5 years and one by a Justice of the Peace who had known him for 10 years. The application was filed on 20 July 1988. After the Law Society had given notice of objection, there was a call-over on 24 August 1988 at which directions were given as to the filing of affidavits by both parties. At the hearing Mr. Thomson sought to tender a number of additional character references which were not on affidavit and the Law Society objected on the ground that the applicant had failed to comply with the directions as to affidavits, the Law Society would have wished to cross-examine the persons who furnished the references and would have given notice for them to attend for cross-examination if affidavits had been filed. I uphel d the Law Society's objection and declined to admit the additional references. Mr. Thomson, appearing in person, had come to the Court with the intention of meeting the Law Society's objection to his application by giving an account of himself from the bar table or, if required, on oath from the witness box. The Law Society's notice of objection had informed the applicant that it would be contending that he was obliged to satisfy the Court of his competence to act in any matter or proceeding under the statutes referred to in the definition of 'land agent' and would be objecting on the ground that he was not a fit and proper person to be registered. An affidavit filed on behalf of the Law Society had given Mr. Thomson notice of the Law Society's concern that if he was granted registration as a land agent he may purport to do general legal conveyancing work for which he would not be qualified and might mislead members of the public as to his true qualifications. Thus Mr. Thomson had due notice of the kind of objections he might have to overcome and of the fact that his fitness and compete nce to perform the functions of a land agent would be in question. His failure to put on affidavit, filed and served before the hearing, the facts and evidence by which he proposed to discharge his onus of proof and meet the objections to his registration placed himself, the objector and the Court in an undesirable position for dealing with a contested application. A direction for the filing of affidavits having been given, both sides are entitled to expect that they will have notice by affidavit of the evidence upon which their opponent intends to rely and to have such notice in sufficient time before the hearing to make any investigations, obtain other evidence and otherwise prepare to deal with the case they will have to meet. Mr. Thomson appeared to have little understanding or appreciation of the purpose of the direction as to the filing of affidavits or of his obligations to comply with such directions. In order to avoid delaying the hearing of Mr. Thomson's application, I directed that the matter proce ed on the basis that he would give oral evidence on oath in support of his application with leave reserved to the Law Society to seek an adjournment in the course of the hearing to deal with matters for which they were unprepared. As it turned out, no such adjournment became necessary; but future applicants proposing to appear in person (of whom, I understand, there have been quite a number recently) should be aware of the risks of delay and costs in contested applications if they fail to put the whole of their case on affidavit before the hearing when directions for the filing of affidavits have been given. Mr. Thomson gave the account of himself that follows: He is 54 years of age, his present occupation is that of a coal miner in the Newcastle area, an occupation which he says he has followed for the last 8 years. He was educated to Leaving Certificate standard and was a police officer for 16 years. In 1963 he enrolled as a student at law for the Barristers' Admission Board law course but did not complete it. In the police force he became the officer in charge of the Stockton police station with the rank of Sergeant but resigned because, he says, of dissatisfaction with outside influences causing interference with his police work. He became a licensed real estate and business agent and conducted a real estate business on his own behalf at Charleston and Hamilton in the period 1970-1973. He then became a spec builder, building homes and flats until legislation was introduced requiring building licences to be held. While operating as a spec builder he carried out his own conveyancing work as both purchaser and v endor in buying and selling the properties on which he erected buildings. These included 3 properties with old system titles. Another business he had was doing mechanical repairs to motor vehicles. After he became a coal miner and whilst still following that occupation he invested in a business of manufacturing fibre glass moulds. This began in April 1984 at Cardiff and was later carried on at Caves Beach where it continued until February 1988 when he closed it down because it had been unsuccessful. For the purpose of preparing himself for registration as a land agent he has studied the 1972 edition of Lang's book on Crown Lands in New South Wales and Lang's book on Estate Agency Practice in New South Wales. He read the College of Law notes on Conveyancing including Old System Conveyancing and Crown Lands transactions. He attended a seminar put on by an organisation called the Legal Assistance Education Centre at which a solicitor lectured. He has enrolled in a course on Land Titles in New South Wales provide d by that organisation. He also spent 5 weeks as an unpaid observer at the office of a registered land agent at Gosford in order to see the nature of the work carried out by a registered land agent. Mr. Thomson was cross-examined by counsel who appeared for the Law Society. Some of what emerged in that cross-examination follows. As to Mr. Thomson's self help conveyancing while a spec builder, there were, at the most, 15 transactions in involved, all of them in the Newcastle and Belmont area and none of them under the Crown Lands Consolidation Act, the Closer Settlement Act, the Returned Soldiers' Settlement Act or the Western Lands Acts. In fact Mr. Thomson had had no experience of dealings in Crown lands except 2 matters which he had observed in the land agent's office at Gosford in the course of the 5 week period to which I have referred. He had himself had no practical experience at all in dealing with matters under the Crown Lands legislation. The registered land agent at Gosford with whom he had been an observer worked under the name "Property Transfer Company". Whilst there Mr. Thomson had observed work being done on about 20 matters altogether, including Old System Titles, Torrens Title and the 2 matters under the Crown Lands Act just mentioned. His observations consisted of seeing the preparation of contracts and conveyancing documents. According to him, contracts were prepared in this land agent's office and signed there by the parties. He had observed staff in that office attend to the exchange of contracts between parties. However, he claimed that contracts for the sale of land were always referred to some solicitor for approval. He prepared his present application to the Court for registration as a land agent from a copy provided to him by another registered land agent. Mr. Thomson's attention was directed to the large number of Acts for the administration of which the Minister for Natural Resources was responsible including the Conveyancing and Real Property Acts. He admitted that he was not familiar with any of the legislation but he said he would intend, as a registered land agent, to do work for fee or reward under any of the legislation under the control of the Minister that he chose to do and his intentions included doing work in transactions under the Conveyancing and Real Property Acts. When asked to elaborate on the work he would intend to do he said that he would propose attending to all aspects of the work required by the transaction, including, drawing up contracts and preparing transfers and conveyances. When then asked whether he had given any consideration to the provisions of the Legal Profession Act, 1987, he said that he had not done so. Under the Legal Profession Act, 1987, a "legal practitioner" means the holder of a current practising certificate issued under Part 3 by the Bar Council or the Law Society Council. Subsection (2)(a) of section 117 of that Act prohibits a person from doing any general legal work for a fee unless the person is a legal practitioner. A breach is a penal offence. In subsection (1), general legal work is defined, so far as material, to include the work involved in drawing, filling up or preparing an instrument that creates or regulates rights between parties, affects real or personal property or relates to a legal proceeding. By subsection 4(c), the prohibition in subsection (2) does not apply to a land agent in respect of an instrument he or she is entitled to draw, fill up or prepare and to charge for under the Land Agents Act, 1927. On the basis of the decision in Aubin's case a land agent is not exempted by subsection (4) from the prohibition in subsection (2) against doing the work involved in drawing, filling up or preparing contracts, conveyances or transfers affecting real or person property under the provisions of the Conveyancing and Real Property Acts. When this was drawn to Mr. Thomson's attention, he said that he had misunderstood the earlier questions in cross-examination asking whether he would propose to do such work and prepare such documents. He withdrew his previous answers and declared that he would never do any work that he believed was contrary to the law. Aubin's case is not reported and Mr. Thomson is not alone in his ignorance of what it decided; but he offered no excuse for his ignorance of the prohibitions in the Legal Profession Act, 1987 to which I have referred. Mr. Thomson conceded that he had received no formal course of study in law generally or the law relating to Crown lands and that his private studies had been undertaken solely for the purpose of this present application. He admitted that he had not read Lang's work on the Crown Lands Legislation in New South Wales until some time after he had already made his application. Perhaps the most revealing statements made by Mr. Thomson in his evidence as to his competence presently to undertake the duties and functions of a registered land agent were that he intended when engaged as a land agent for a particular transaction then to find out what had to be done and do it, that his idea was to obtain registration so that he might then obtain work as a land agent and so learn by experience to be a land agent and that he did not see how anyone could learn to be a land agent without first being registered as one. In other words, Mr. Thomson's plan was to ask the Court to register him as a land agent so that he could learn to be a land agent. Mr. Thomson was also cross-examined on the issue of his good fame and character. It was suggested to him that whilst a coal miner he was off work receiving workers' compensation payments whilst at the same time running his fibre glass mould manufacturing business and for a long period in 1987 was away from work receiving sickness benefits whilst at the same time conducting that business. Mr. Thomson claimed that the nature of the work required of him to conduct the business was not inconsistent with the injury and illness from which he was suffering at those times or with his receiving workers' compensation and sickness benefits. He claimed to have made full disclosure to the Department of Social Security in relation to the sickness benefits and that a Judge in the Workers' Compensation Court had decided that his rights to receive workers' compensation were not compromised by his attention to the affairs of his fibre glass business. He was also cross-examined as to the financial affairs and operation of the f ibre glass business in order to suggest that it had failed because of his business incompetence. At the close of the evidence it was submitted for the Law Society that Mr. Thomson had not discharged the onus of satisfying the Court that he was of good fame and character. It was also strongly contended that Mr. Thomson had completely failed to demonstrate the requisite fitness and competence to perform the duties and functions of a land agent. On the material before the Court, I would have been disinclined to reject Mr. Thomson's application on the ground that his good fame and character had not been established. His answers to questions critical of his conduct were satisfactory if true and his demeanour generally was that of a truthful person. Further investigation of the facts by the Law Society, if sought, may have vindicated Mr. Thomson or supported the criticisms; but any further pursuit of the questions raised would have been pointless because, in my opinion, the Court would have been bound to refuse Mr. Thomson's application for sheer lack of qualifications and experience sufficient to make him fit and competent to perform on behalf of members of the public for reward the duties and functions of a land agent. In his judgment delivered 10 October 1984 in Aubin's case, Perrignon J. summarises the evidence of an officer of the Lands Department who was then the Metropolitan Crown Lands Agent as to the nature of the work and the skills required of a land agent as at the time of that case, that was 1984. According to that evidence land agents act as representatives of and advocates for people in relation to applications under the Crown Lands Act for permission to transfer lands, for conversion, subdivision and the taking up of Crown lands and also in matters relating to conditions as to residence, building, fencing and the like. In certain cases land agents appear formally as advocates before a local Land Board but that is not so common since there are now few disposals of Crown lands or similar matters to be determined by those boards. In matters not requiring such appearances, land agents represent their clients informally before the officer in charge of a Land Board Office or an officer reviewing the matter in Sydney , the latter now rarely resorted to because of recent decentralisation of the department. Representations are also made by land agents personally or by mail to the appropriate officers of the department. According to the evidence before Perrignon J., there had been a decline in the quantity and complexity of Crown land work available and, as well, the forms, departmental procedures and legislative requirements had all been greatly simplified with the result that the level of skills formerly required of land agents is no longer often needed. Nevertheless, it is apparent that even the limited scope of activities now required or permitted of a land agent calls for a level of knowledge, skill and experience which Mr. Thomson does not possess. Perrignon J. found that the applicant before him had worked on hundreds of property transfers and conveyances including a number requiring the Minister's consent under the Crown Lands Act, had worked under supervision, mainly exercised by solicitors and had had considerable practical experience, under supervision, of the conduct of conveyancing transactions generally even though he had limited experience of transactions under the Crown Lands Consolidation Act and no practica l experience of the Closer Settlement Acts, the Western Lands Acts or the Returned Soldiers'Settlements Acts. Perrignon J. concluded:- "Taking into account all the circumstances, including the limited scope of the activities which a land agent is permitted by the Land Agents Act to perform, the simplification of the procedures under the Crown lands legislation and the experience which the applicant has gained, under supervision, in conveyancing transactions, I am of the opinion that Mr. Aubin possess a sufficient degree of fitness and competence to qualify him for registration as a land agent under the Land Agents Act." The Court is quite unable to say the same of Mr. Thomson. His experience of conveyancing transactions has not been under supervision and is minimal. His studies have been recent and perfunctory and the knowledge, if any, gained by him from them not demonstrated. He exhibited little knowledge or understanding of the duties and functions to be expected of him as a registered land agent and was content to leave his learning until after he had become registered and then to gain his knowledge and experience at the risk and the expense of his clients. He was not aware of the prohibitions contained in the Legal Practitioners' Act and had not taken the trouble to discover what work he would be able lawfully to perform. His claim that he would not do any work that he believed to be unlawful was, it appeared, sincere; but the judgment on which he said he would base his actions was his own and is presently too ill informed to be a reliable basis for proper conduct. In relation to Crown lands matters and the like in part icular, he has only the slightest knowledge and no practical experience at all of departmental forms and procedures. I would not suggest that Mr. Thomson does not possess the capacity to acquire the knowledge and skills that would make him competent to act as a land agent, but I would suggest that he begins with entirely the wrong attitude. His application to the Court to register him as a land agent so that he may thereby obtain from clients work that would enable him to learn to become a land agent is asking the Court to register as a land agent, and thereby hold out to the public as qualified to perform the functions and duties of a land agent, a person who admits to being presently incompetent to perform them. As the Court is, in my opinion, quite unable to accredit Mr. Thomson, as at present, "as being worthy of public confidence in the carrying out of the functions and duties of a land agent", his application must be refused. In my opinion the applicant should, in the circumstances, bear the Law Society's costs of the proceedings. The Court orders that the application be refused and the applicant pay the costs of the Law Society of New South Wales as objector. Exhibits may be returned. 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.