Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EBP v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATOD 157 Hearing dates: 15 July 2019 Date of orders: 11 October 2019 Decision date: 11 October 2019 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW – occupational licensing - real estate – conviction for dishonesty – whether criminal conviction can be contested in tribunal proceedings – whether applicant a disqualified person – whether fit and proper – whether non-publication order should be made Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Property, Stock and Business Agents Act 2002 Cases Cited: AJO v Director-General of Transport [2012] NSWADT 101 Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Council of the Law Society of New South Wales v Bharati [2010] NSWADT 159 Delmege v Director General NSW Fair Trading [2013] NSWADT 269 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Hunt v Commissioner for Trading [2008] NSWADT 280 McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 Parvin v Commissioner for Fair Trading [2005] NSWADT 34 Song v Commissioner for Fair Trading NSW Office of Fair Trading [2006] NSWADT 218 Category: Principal judgment Parties: EBP (Applicant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) Representation: Counsel: R Tripodi (Respondent) Solicitors: Applicant (Self Represented) Legal Services, Department of Finance, Services and Innovation (Respondent) File Number(s): 2018/00325932 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the disclosure or publication of the applicant's name and of other identifying information with respect to the applicant. REASONS FOR DECISION 1. EBP, the applicant, seeks review of a decision by the Commissioner for Fair Trading (the Commissioner) to: 1. declare EBP a disqualified person for a period of five years pursuant to s 192(1)(h) of the Property, Stock and Business Agents Act 2002 (the Act); and 2. disqualify EBP from being involved in the direction, management or conduct of the business of a licensee under the Act for a period of five years pursuant to s 192(1)(i) of the Act. 1. The decision was made on 18 May 2018 and affirmed on 14 September 2018. The period of disqualification is from 18 May 2019 to 17 May 2023 (five years). 2. EBP makes various submissions about what decision ought to have been made but, in essence, he asks that his licence is reinstated so that he can again work in the real estate industry. Background 1. EBP has worked in real estate since 1990. His most recent real estate licence was issued in mid-2010 and was valid until he surrendered the licence to the Commissioner in late 2017. 2. In 2017 EBP commenced employment with a company trading as a real estate business. He states that he was approached by the owners of the business who he had known for many years to join the company as a Senior Property Manager. EBP states that he was responsible for supervising repairs and maintenance of properties, supervising staff, attending to new business, dealing with landlord inquiries and organising outgoing inspections and new tenants. 3. Over a two-month period in 2017 15 payments ranging from $70 to $8,800 were electronically transferred from the company's trust account to EBP's personal bank account, totalling $13,830. About six weeks after the last transfer EBP's access to the company's systems was deactivated and he was advised that anomalies had been discovered in the trust account. His employment was terminated later that day. Also on that day EBP made a deposit of $20,956.82 to the company trust account. 4. The Commissioner began an investigation into the matters concerning EBP and EBP participated in an interview with an officer from NSW Fair Trading. During that interview EBP admitted to taking monies from the company's trust account. He said that he was stressed and overworked and unable to get to the bank during the day to do his own personal banking. He used the trust monies for his personal expenses such as to pay the rent for a car space, car repairs and shopping. He said during the interview that when the new General Manager of the company commenced the dongle (security token) which he used to access the trust account was taken away from him. When his access to the account was removed altogether he knew he had to "fix this up", so he repaid the money. 5. On 8 March 2018, the Commissioner received a report from a firm of solicitors and accountants, in relation to the The company trust account. The report concluded that EBP had misappropriated a total of $15,763 from the trust account. That amount consisted of the 15 payments totalling $13,830 referred to above, and three payments totalling $1,933 which were paid directly from the trust account to EBP's personal creditors. 6. As noted above, on 18 May 2018 the Commissioner disqualified EBP from holding a licence or certificate of registration and from being involved in the direction, management or conduct of the business of a licensee for a period of five years. 7. Criminal proceedings were commenced against EBP and at the hearing he entered a plea of guilty to one offence under s 192E(1)(b) of the Crimes Act 1900 of dishonestly obtaining, by deception, 15 payments totalling $13,830 from his employer's trust account. He was convicted and directed by way of sentence to enter into a Community Corrections Order for 18 months. EBP's appeal to the District Court against the severity of his sentence was dismissed. The legislation 1. Under the Act, a person can only carry on the business of a real estate agent if the person holds a licence (s 8(1)). Under s 14 of the Act, in addition to other qualifications, a person can only hold a licence or a certificate of registration if the Commissioner is satisfied that the person is "fit and proper" to hold a licence or certificate and is not a "disqualified person". 2. Section 16 of the Act sets put the circumstances in which a person is a disqualified person for the purposes of the Act. Relevantly, s 16(1)(a) 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 s 16(2) that the offence should be ignored. Further, s 16(1)(j) provides that that a person is a disqualified person if the person is for the time being declared to be a disqualified person under Part 12 of the Act. 3. Part 12 of the Act deals with complaints and disciplinary action. The grounds upon which disciplinary action can be taken against a person are set out in s 191 of the Act. Of relevance in this case are the following grounds: (a) the person has contravened a provision of the Act; (c) the person has, in the course of carrying on business or exercising functions under the licence or certificate of registration, acted unlawfully, improperly, unfairly or incompetently; (d) the person is a disqualified person or is otherwise not eligible under s 14 to hold a licence or certificate of registration; and (e) the person is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee. 1. Section 192 of the Act sets out the nature of the disciplinary action which can be taken against a person. These range from a caution or reprimand to suspension or cancellation of a licence or certificate of registration or, as in this case, disqualification. Disqualification can be permanent or for a period. EBP's submissions 1. EBP states that he has worked in real estate for many years and had no issues prior to the incident at the company. EBP has made several statements in relation to that matter over the course of the last two years since his employment was terminated. 2. In a response to a Notice to Show Cause issued by NSW Fair Trading, EBP stated that he was overworked and burnt out at the company. He said that there was no reason for him doing what he did, other than carelessness. He said he had money in his other bank accounts and did not need to use the trust account to pay his bills. He described his actions as careless and a mistake. 3. EBP provided two submissions prepared by his lawyer for his application for internal review of the Commissioner's disciplinary decision. In those submissions it was stated that EBP did not deny transferring funds from the company's trust account to his own personal account, although a statement was also made that all personnel in the office were aware of EBP's password and some misappropriations could have been carried out by other personnel. 4. The internal review submissions primarily state that the penalty imposed on EBP is excessive and refer to the circumstances of his employment at the company which meant he was overworked because of staff shortages and increased responsibilities, exhausted, stressed and pushed mentally by his employers to the extent he was restricted in being able to leave the office. The submissions also stated that EBP had another bank account he could have used to pay for his expenses, but the account could not be accessed online and he was unable to get to the bank. It was noted that EBP had repaid the monies, fully co-operated with his employer and NSW Fair Trading and surrendered his licence when required to do so. It was submitted that a six-month disqualification period should be imposed commencing from the date EBP surrendered his licence. 5. In a statement dated 10 December 2018 EBP outlined his work situation at the company and stated there was a high turnover of staff and he was overworked and very stressed. He indicated that the Managing Director undermined him and belittled him in front of other staff. He stated that on the day his employment was terminated he paid some bills and mistakenly made the payments from the company account, not his personal account. When he realised his mistake, he repaid the money. He did this before the mistake was noticed. 6. Further materials have been provided which were before the court in the criminal proceedings. EBP's solicitor in the Local Court proceedings submitted that he should be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 and that the charge should be dismissed and EBP should be discharged into the care of a responsible person. EBP provided a report from Mr CA, a psychologist who he was seeing at the time. That report sets out the information provided by EBP to Mr CA about his background and the matters relevant to the charge along with results of psychometric testing. Mr CA concluded that EBP has suffered from anxiety and depression for some time and that there was a psychological nexus between his condition and the offence with which he was charged. Mr CA was of the opinion that EBP was at low risk of re-offending and set out the details of a proposed treatment plan. 7. The transcript of the court proceedings provided by EBP shows that, through his solicitor, he entered a guilty plea to the charge. The statement of facts submitted by NSW Fair Trading was not contested by his solicitor. EBP also provided a letter dated to the Magistrate. In that letter, he expressed sincere remorse for his actions and accepted responsibility for what he had done. Ultimately, the Magistrate did not make a s 32 order and EBP was found guilty and sentenced as outlined above. EBP's mental health and other issues were taken into account in sentencing. 8. In submissions dated 19 May 2019 provided to the Tribunal, EBP states that he did not use trust money at the company and has never stated he committed an offence. He states that he did not authorise any of the transactions and in fact did not have the means to do so at the company. He states he only had a dongle which would enable him to make transactions on the trust account for about a week and could therefore not have authorised the transactions as recorded by NSW Fair Trading and his employer. He states he in fact never used it. He also never filled out the forms which would give him the required access. EBP states that others had access to his computer and passwords and states that the transactions were performed by others in the office. He states that he told his solicitor in the Local Court proceedings that he was not guilty but a different solicitor represented him at court and was not aware of his plea. 9. EBP states that that he was unrepresented at the District Court appeal hearing and wanted to adjourn the matter. He claims the prosecutor forced him to go on but he did not understand what was happening. 10. EBP states that, since his disqualification, he has had to move back in with his mother and is facing financial difficulties. He is currently on Centrelink benefits. His mother has also used her savings to help support him and make repayments on outstanding loans. EBP stated in his application to the Tribunal that the issue has caused him much shame and humiliation and he is truly sorry for what he did. If he is unable to have his licence back, he wishes to have a certificate of registration which would enable him to work in property management again. 11. EBP provided a report from Mr CA dated 21 May 2019. That report largely repeats the contents of the s 32 report Mr CA provided to the Local Court. The report states that EBP suffered from severe anxiety and depression at the time of the offence but has now received treatment. Mr CA is of the view that EBP is fit enough to fulfil the role and responsibilities of a real estate agent. 12. Shortly before the hearing before me EBP provided a reply to submissions made by the Commissioner. He reiterated that he was not guilty of the offence and said that NSW fair Trading had not conducted a proper investigation into what had occurred. 13. At the hearing EBP said that when he saw the money in his account he thought his mother had made the payments to him. He reiterated that he did not have the authority to make the transactions he was alleged to have made and implied that the Managing Director had used his password and log in details to make the transactions. He said that he was very unwell at the relevant time and had previously told investigators that he didn't know whether he had done what he was accused of or not. He repaid the money because he thought he had done it. He said, however, that while preparing for the Tribunal he began to think that he did not in fact do it. Commissioner's submissions 1. The Commissioner submits that, given the seriousness of EBP's conduct, disqualification for five years is appropriate. The Commissioner states that the actions of EBP occurred over a two-month period and involved at the very least 15 separate occasions where he set himself up as a false creditor and authorised the transfer of monies from his employer's trust account to his own personal bank account. Furthermore, EBP only stopped this activity when the dongle was taken from him. The Commissioner also states that EBP only repaid the money when it was clear his employer had become aware of the anomalies. 2. The Commissioner notes that EBP's more recent statements that he made mistakes or was not the person who made the transactions are at odds with his earlier admissions, are self-serving and should be rejected. He submits that while EBP challenges his conviction and makes allegations about his own solicitors and the prosecutor, the fact of the conviction remains and should be given considerable weight. He notes that EBP has provided no evidence to refute the findings that he transferred the monies from the trust account to his own account. Furthermore, the Commissioner submits that EBP's most recent statements show a lack of remorse. 3. The Commissioner also submits that throughout the investigation into his conduct, EBP sought to blame workplace pressures placed upon him by his employer as justification for his conduct. The Commissioner casts doubt on EBP's statement that he could not access internet banking on his personal account and points to bank statements which show internet and ATM transactions. The Commissioner states that, even if the pressures he was facing at work led EBP to feel tired and pressured and assuming he could not access his own account through internet banking, his actions show that he was incapable of putting his clients' interests before his own. The Commissioner states that it was always open to EBP to resign from his employment or call in WorkCover, but he chose to misappropriate funds from his employer's trust fund. 4. The Commissioner submits that the period of disqualification is appropriate and that EBP, in light of his behaviour, is not a fit and proper person to hold a licence. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997 the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The issues that I must decide, based upon the evidence before me, are whether EBP should be disqualified under the Act and, if so, for what period, and whether he is a fit and proper person to hold a licence or certificate of registration. 3. The decision which was made by the Commissioner was made prior to the conviction of EBP of the offence under s 192E of the Crimes Act and was based on the grounds for taking disciplinary action against a person as set out in s 191 rather than the disqualification provisions in s 16. There is no doubt that EBP was convicted of an offence involving dishonesty within the meaning of s 16(1)(a) of the Act. There thus arises another ground for disqualification in addition to those under s 192 which were the basis of the decision made by the Commissioner. Under s 16(2) of the Act the Commissioner can ignore an offence committed by a person because 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. 4. EBP was convicted of dishonestly obtaining, by deception, 15 payments totalling $13,830 from his employer's trust account but now makes submissions that he did not commit the offence. In McGrath v Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 the Tribunal recently set out the relevant law relating to the interplay between a criminal conviction and the Tribunal's powers on review of an administrative decision relating to the conviction. At [44] the Tribunal said: …the tribunal cannot canvass the correctness of a conviction or a finding of guilt. The general rule in such cases is that where the exercise of jurisdiction by a tribunal depends on conviction of, or finding of guilt of, an offence …, the finding cannot be challenged before the tribunal, other than in exceptional circumstances: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, [42]; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; (1982) 42 ALR 209. On the other hand, "where the exercise of power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based": Saffron v FCT (No.2) (1991) 102 ALR 19, 22. 1. In this matter, the Tribunal's jurisdiction under s 16(1)(a) does depend on a finding of guilt, whereas the grounds for disqualification in s 191 are not dependant on a conviction, although a conviction for an offence is no doubt a relevant matter. Where jurisdiction does depend on a conviction, an applicant may present to the Tribunal matters pertaining to a conviction, provided that they do not contradict the facts that had to be found in arriving at such a finding: Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Branson J at [43] held that a decision maker in criminal deportation proceedings was required to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based): as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted ... This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing. 1. While recognising that these proceedings are criminal deportation proceedings but are related to the licensing of real estate agents, they nevertheless give some guidance to the approach to be taken where criminal convictions are involved. Branson J also stated that, while it was not open to a decision maker to reach a conclusion that a person had been wrongly convicted in relation to convictions which did not form the basis of, in that case, a deportation order, the decision maker is entitled to make his or her own assessment of the entirety of the conduct of the person, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned [44-45]. 2. In considering whether EBP should be disqualified under s 16(1), I am not able to go behind his conviction. In relation to the grounds under s 191, which formed the basis of the decision made by the Commissioner and which was not based upon a conviction for an offence, the context within which the conviction was recorded is a relevant matter. In fairness to EBP, while it may not be strictly necessary to do so, I make the following comments on the conviction. 3. EBP's recent submissions that he did not commit the offence and his implication that others in the office were responsible for transferring the monies into his account or directly to his creditors, is at odds with all other information before the Tribunal. The evidence of the company's General Manager as confirmed by the investigation and report by the firm of solicitors and accountants referred to above, is that a creditor named EBP was created in the company's accounting and payments system and payments totalling $13,830 were made to the bank account of the creditor over two months. EBP has not denied that the payments went into his personal bank account. 4. The evidence provided by the company's General Manager is that, when confronted by the Managing Director about the transfers, EBP said that he was going to talk to the Managing Director about it, he had been very stressed, he didn't know what he was doing, didn't have time to go to the bank and was putting the money back. I have no reason to doubt the statement made by the General Manager and it is apparent that EBP did not deny that he had made the transfers from the trust account when confronted. He also indicates he made the transfers in his written statements made during the NSW Fair Trading investigation, although does state that others had access to his log-in details and password. 5. When EBP was interviewed by NSW Fair Trading investigators he stated explicitly that he had set himself up as a creditor of the company to pay his car parking. He also stated that he accepted that he did it and that he was responsible. He acknowledged that there were some creditors he paid directly from the the company trust account and others where he transferred money to his own account. During the interview he gave details of the payments he had made. He also said that he knew that whatever money was missing from the trust account was money he had used himself and that was why he deposited $20,956.82 into the trust account. 6. Tellingly, in the report prepared for the s 32 application in the Local Court, Mr CA sets out in some detail what EBP told him about the offence with which he had been charged. It is clear that EBP told Mr CA that he had set himself up as a creditor and made transfers to his personal account from the the company trust account. At the time of writing the report Mr CA had seen EBP on six occasions and EBP had consistently expressed shame and remorse. Mr CA also provided a report dated 21 May 2019 for use in these proceedings which contained the same information. EBP had ample opportunity to discuss with Mr CA his thoughts and feelings, including any doubts about whether he was responsible for the transfers. 7. EBP states he did not instruct his solicitor to plead guilty to the charge and that he has referred matters about the conduct of his solicitor to the Legal Services Commissioner. 8. EBP's recent statements that he did not in fact instruct his solicitor to plead guilty in the Local Court also do not sit easily with the transcript of the hearing which shows that EBP was in court, heard what was said and was addressed personally by the magistrate. He could have objected to his solicitor's statement that EBP was entering a guilty plea if he had wanted to. EBP has provided a copy of a letter addressed to him from the Legal Services Commissioner. The letter primarily concerns a costs dispute which had been filed out of time. The letter notes that EBP had made other allegations against his solicitor, but these are not set out in the letter and EBP has provided no other information. I am satisfied that the plea was entered on the instructions of EBP, particularly as the letter he provided to the court acknowledged he committed the offence. 9. EBP's statements that he was disadvantaged in the appeal proceedings is also not supported by the transcript of the hearing or any other evidence. Mr Dimitrios Kapeleris, who was the solicitor who appeared for the Commissioner in the District Court, has provided an affidavit in which he sets out what occurred prior to and during the appeal hearing. I accept Mr Kapeleris's evidence which does not disclose anything untoward about the proceedings. 10. One of the things which EBP has failed to explain in his recent statements that somebody else, probably the Managing Director, made the transfers from the trust account into his bank account, is how that person would know the amounts to be paid and the identity of EBP's creditors. For example, the report by the firm of solicitors and accountants details three payments made directly to creditors of EBP. One was for the preparation of his personal income tax return and the other two were for the supply of electrical goods to be delivered to EBP's home address. It is fanciful to suggest that somebody else made these payments. 11. In view of the matters set out above which are clearly at odds with any statement by EBP that he did not commit the offence there is nothing in the material before me which could lead me to be satisfied that he was wrongly convicted, even if that was an inquiry the Tribunal could make. Should the offence be ignored under s 16(2)? 1. A question arises whether the offence committed by EBP should be ignored because 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 (s 16(2) of the Act). 2. The Commissioner has referred to several cases decided by the Tribunal where it has been held that insufficient time had passed since the offence in question was committed so that the offence should be ignored. In Hunt v Commissioner for Trading [2008] NSWADT 280 the Tribunal found that a period of five years was insufficient time where Mr Hunt was convicted of dishonestly obtaining money by deception totalling just under $7,000. In Parvin v Commissioner for Fair Trading [2005] NSWADT 34 Mr Parvin had been convicted of various driving offences, including providing a false name and driving while disqualified. While the offences involved dishonesty, they were unconnected to his work in real estate. The Tribunal held that the offences should not be ignored and Mr Parvin should not be permitted to resume his licenced work for a period of four years. Similarly, in Song v Commissioner for Fair Trading NSW Office of Fair Trading [2006] NSWADT 218, two years was an insufficient period for a conviction for "goods in custody suspected of being stolen" to be ignored. 3. In this case a period of some two years has elapsed since the offending occurred. Using trust monies for an improper purpose, namely to pay personal bills, is a very serious offence. Indeed, in sentencing EBP, the Magistrate referred to the serious nature of the crime he had committed. EBP's excuse that he didn't have time to go to the bank because of the stress and pressures of work is not sufficient. Although he said he made a mistake and always intended to repay the monies he transferred, his actions in making the transfers were deliberate and were done to suit his personal circumstances without giving any thought to those of his employer or his clients. 4. In Hunt at [23] the Tribunal stated that accessing trust accounts for improper purposes "would be a serious offence even if the money was taken over a short period of time or if the amount of money stolen was relatively small". Similarly in Council of the Law Society of New South Wales v Bharati [2010] NSWADT 159 at [51] the Tribunal found that misappropriations from a solicitor's trust account amounted to "misappropriations even if he intended at all times to repay these amounts and even though he did in fact do this". 5. Given the serious nature of EBP's conduct in accessing trust monies for personal purposes I am not satisfied that sufficient time has passed since the offence in question was committed so that the offence should be ignored. Furthermore, a matter of considerable concern is that EBP now seeks to distance himself from his conduct. As is apparent from the above discussion, I also do not consider that the acts of EBP which gave rise to the conviction were trivial. As noted above, his actions were deliberate involving at least 15 transactions over a two-month period. The fact that he ultimately repaid the money some time later does not detract from the seriousness of his actions. Have the grounds for disqualification in s 191(1)(a) and (c) been made out? 1. Given my findings and conclusions set out above, I am satisfied that EBP contravened several provisions of the Act. In particular, I am satisfied that EBP transferred monies from the company's trust account to his personal account without authority or entitlement in contravention of s 86 of the Act. The facts establish that he fraudulently converted money from the trust account to his own use to pay for various personal items in contravention of s 211. I therefore find that EBP has contravened a provision of the Act and that the ground for disqualification in s 191(1)(a) is made out. 2. In light of the breaches of the Act and his subsequent criminal conviction, I am satisfied that EBP, in the course of carrying on business or exercising functions under the licence or certificate of registration, acted unlawfully or improperly. I therefore find that the ground for disqualification in s 191(1)(c) is made out. The period of disqualification 1. EBP submitted to the Commissioner that the period of disqualification was excessive. I acknowledge that EBP repaid the amount he took from the trust account. However, it is particularly concerning that EBP now states he did not commit the offence and seeks to lay the blame on others. He has clearly not accepted responsibility for his own actions and a period of disqualification of five years is not excessive. It is to be hoped that EBP continues to receive support from his psychologist so he can come to terms with circumstances and deal with his anxiety and depression. Is EBP a fit and proper person to hold a licence or certificate of registration? 1. The expression "fit and proper" is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases. 2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 1. These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]). 2. The simple fact of a conviction for a criminal offence is not necessarily enough for the tribunal to conclude that a person is not fit and proper to hold a licence. In Delmege v Director General NSW Fair Trading [2013] NSWADT 269, referring to McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994), the Tribunal noted at [22]: where there is evidence of misconduct, there should be consideration of any explanation for that misconduct, its seriousness to the particular activity, the motivation of the person, whether the misconduct is an isolated incident, the person's underlying qualities of character, and the person's conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform. The question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 1. EBP now disavows any wrong doing on his part and seeks to blame others for unlawfully taking money from the company's trust account. For the reasons set out above, his submissions in this regard must be rejected. His earlier explanations that he did what he did because he made a mistake due to the stresses and pressure of work do not satisfactorily explain his conduct and seek to shift blame to his employer rather than to take responsibility for his own actions. 2. I cannot be satisfied, given EBP's current state of mind, that he has sufficient insight into his behaviour so that similar conduct will not occur in the future. I therefore find that EBP is not a fit and proper person to hold a licence or certificate of registration under the Act. Conclusion 1. I am satisfied that EBP is not a "fit and proper" to hold a licence or certificate of registration under the Act and that he is a "disqualified person". The decision under review must therefore be affirmed. Non-publication order 1. EBP has asked that the decision in this matter not be published as he is concerned about the effect of publication on his mental wellbeing. He has provided a further report from Mr CA who he continues to see. Mr CA states that EBP continues to exhibit symptoms of severe anxiety and depression. In his opinion, as EBP is well known in the real estate industry, publication of the decision would likely cause an irreversible exacerbation of his underlying psychological condition. 2. Proceedings of the Tribunal are generally held in public. Decisions of the Occupational Division of the Tribunal are, unless otherwise ordered, published on websites maintained by NSW Caselaw and the Australasian Legal Information Institute. Each of these websites is freely accessible to members of the public. This is generally a reflection of the importance of justice being administered openly and in public and the recognition that disclosing the identity of persons who have contravened laws relating to their occupations and breached the trust that has been placed in them has a deterrent effect amongst their peers. The public also has an interest in knowing whether a person has been disqualified or prevented from engaging in a particular occupation and for what reasons. It is also important to know that the regulatory functions of the Commissioner are being carried out appropriately. 3. The Tribunal can, however, under s 64 of the Civil and Administrative Tribunal Act 2014 make various orders, including an order prohibiting or restricting the disclosure of the name of any person, if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. EBP's request for confidentiality has been passed to the Commissioner who has made no comment. 4. EBP is currently under the care of a psychologist, Mr CA, who has seen him since at least the Local Court proceedings. His view is that, if his identity were to be disclosed in these proceedings, EBP's mental health is likely to deteriorate. EBP has been diagnosed as suffering from severe anxiety and depression and the history of his responses to the criminal and Tribunal proceedings reveals matters that are very concerning about his wellbeing. I consider in the circumstances that it is appropriate to make an order prohibiting the disclosure or publication of EBP's name and of other identifying information with respect to him. Orders 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 11 October 2019