Agha v Commissioner for Fair Trading

NCAT Occupational|2024-04-09

mplaints Commission v Akinci (No 2) [2024] NSWCATOD 104 Health Care Complaints Commission v Anderson [2024] NSWCATOD 155 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Hinton v Commissioner for Fair Trading (No 2) [2006] NSWADT 299 Ingram and Knee v Patcroft Properties Limited [2011] NZSC 49 Meacham v Commissioner of Police [2020] NSWCATAP 107 Morris v Baron & Co [1918] AC 1 Nina 's Bar Bistro Pty Limited (Formerly Mytcoona Ply Limited) v MBE Corporation (Sydney) Pty Limited [1984] 3 NSWLR 613 Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 Sudath v Health Care. Complaints Commission [2012] NSWCA 171 The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 Ur Rehman v Commissioner for Fair Trading [2023] NSWCATOD 102 Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 Category: Principal judgment Parties: Wajih Agha (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: J Horowitz (Applicant) T Bagley (Respondent)

Solicitors: TPS and Co (Applicant) Department of Customer Service (Respondent) File Number(s): 2022/000315240 Publication restriction: Nil

The Amended Application

On 23 November 2022, the applicant filed an amended application (Amended Application) with the Tribunal seeking administrative review of an internal review of a decision of a delegate of the Secretary, Department of Customer Service (Delegate) of 17 October 2022 (Original Decision) to take the following disciplinary action against the applicant: 1. to cancel his real estate licence; 2. to declare the applicant to be a disqualified person for the purposes of the PSA Act for a period of two years and six months; and 3. to disqualify the applicant from being involved in the direction, management or conduct of the business of a licensee for a period of two years and six months.
In summary, the Delegate, after considering the evidence and submissions of the applicant and the findings of the Supreme Court of NSW, found that the applicant: 1. was responsible for sabotaging 905 client telephone records on 8 December 2017; 2. siphoned clients in contravention of a Shareholders Agreement and an Employment Agreement; 3. sent himself (and used) confidential information in contravention of the Shareholders Agreement and the Employment Agreement; 4. had breached ss 181, 182 and 183 of the Corporations Act 2001 (Cth) (Corporations Act); 5. was not a fit and proper person as: 1. he did not have the requisite character to hold a licence; 2. he was not possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work subject of real estate licence; 1. acted unlawfully by breaching ss 181, 182 and 183 of the Corporations Act: 2. acted improperly by: 1. engaging in systematic and repeated sabotage of the client records; 2. siphoning clients to his new employer, Belle Property Neutral Bay (Belle); 3. sending himself and using confidential client information, being the client contact lists for personal gain and advantage to the detriment of his former employer.
The internal review decision was made on 16 November 2022. The reviewer (Reviewer) affirmed the Original Decision (Review Decision).
The grounds of the application for review, as finally submitted in the applicant's Outline of Opening Submissions dated 24 March 2024, are: 1. Review Ground 1: The Reviewer erred in affirming the Original Decision in circumstances where: 1. the Original Decision was based upon a finding that the applicant sabotaged the client records of Devine Real Estate Concord Pty Ltd (Devine); but 2. the Reviewer found that the applicant may not have been directly involved in the sabotage of Devine client records; 1. Review Ground 2: The Reviewer erred in finding that the applicant's conduct demonstrated a blatant disregard of his responsibilities to ensure confidentiality of client information and obligations to his employer regarding contractual agreements, in circumstances where the applicant held an honest and reasonable belief that he was entitled to take client contact lists and some of his clients with him when he left Devine; 2. Review Ground 3: The Reviewer erred in finding that the applicant is not a person of good character and does not possess sufficient moral integrity and rectitude such that he can be entrusted to be involved in the direction, management and conduct of the business of a licensee at this time; 3. Review Grounds 4: and 5: The Reviewer erred in finding that the disciplinary action taken to: 1. cancel the applicant's real estate licence; 2. declare the applicant to be a disqualified person for the purposes of the PSA for a period of 2 years and 6 months; and 3. disqualify the applicant from being involved in the direction, management or conduct of the business of a licensee for a period of 2 years and 6 months; was proportionate and appropriate in the circumstances.
The applicant's application had a number of directions hearings in which the usual kinds of orders were made for the filing of evidence and submissions. Eventually, the matter was set down for a five day hearing commencing 4 September 2023.
However, on 22 August 2023, following the filing by the Commissioner of an application to refer a question of law to the Supreme Court pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the hearing was vacated, with the referral application only being set down for hearing on 4 September 2023.
On 18 October 2023, a decision on the referral application was published, the Tribunal refusing the application: Agha v Commissioner for Fair Trading [2023] NSWCATOD 168.

Evidence of the applicant

The following evidence was before the Tribunal: 1. the statutory declaration of the applicant dated 19 May 2022; 2. the affidavits of the applicant affirmed dated 21 October 2022 and 13 July 2023; 3. the affidavits of Carlos Uribe affirmed 8 May 2023 and 9 June 2023; 4. the affidavit of Catherine Harris affirmed 4 May 2023; 5. various reviews of the applicant on realestate.com.au and reatemyagent.com.au.
I note that any evidence dated after the Original Decision was neither before the Reviewer or the Supreme Court.

The statutory declaration of the applicant dated 19 May 2022

The statutory declaration of the applicant was before the Delegate. In summary, the applicant responds to the findings of the Supreme Court that he: 1. engaged in systematic and repeated sabotage of Devine's confidential client information; 2. siphoned clients from Devine Concord to his new employer, Belle Property; 3. took confidential information belonging to Devine with him when he left.
After responding in considerable detail, the applicant concludes his statutory declaration by stating: 57. I have been a real estate agent for over 20 years. I understand the importance of real estate agents having to act with the utmost honesty and integrity. While my conduct: (i) in diverting clients from Devine Concord to Belle Property Neutral Bay; and (ii) in taking confidential information from Devine Concord with me when I left; was wrong, I did not act dishonestly. Rather, I mistakenly believed that I was entitled to do those things. My conduct in this regard is an anomaly, and does not reflect my career or my character.

The affidavits of the applicant

In summary, in his first affidavit, the applicant says that: 1. if the Commissioner's decision to cancel his licence becomes effective, it will be devasting for his professional reputation; 2. he will no longer be able to earn income as a real estate agent, and thus not be able to pay living expenses, mortgages, support his family and pay legal fees; 3. be forced to cell an investment property; 4. the business Belle would lose approximately 70% of its revenue; 5. the business Premium Property Sales Pty Ltd would suffer substantial reputational damage, and would not "look good" to Premium's 548 clients.
In his second affidavit, the applicant refers to the findings made in the Supreme Court Proceedings that he and Lewis Coombe had diverted 19 customers from Devine to Belle Property Neutral Bay.
The applicant then responds to each of these findings.
The applicant was required for cross-examination. Where relevant I will refer to his oral evidence below.

The evidence of Mr Uribe

Mr Uribe is the Chief Financial Officer and Licensee-in-Charge of the Devine Real Estate Group.
In his first affidavit, Mr Uribe says that the applicant handed a resignation letter to him on 8 December 2017 at approximately 9.30am at his office in Strathfield. The applicant told Mr Uribe that he wished to speak to Mr Devine. Given "the gravity of the situation", Mr Uribe advised the applicant that it would be best to discuss "this" in person with Mr Devine.
The applicant left the applicant's office after approximately 5 minutes.
In his second affidavit, Mr Uribe says that, to the best of his recollection, he did not have access to the applicant's password, and did not make any changes to the phone numbers of the business contacts in the Devine Complete Data Customer Relationship Management (CRM) on 8 December 2017.
Mr Uribe was required for cross-examination. Where relevant I will refer to his oral evidence below.

Reviews of the applicant

Suffice it to say there are many positive reviews of the applicant provided in his evidence.

Evidence of Mr Geoffrey Campey

Included in the s 58 documents, but clearly relevant to the applicant's application for review, was the report of Mr Geoffrey Campey dated 14 November 2022. Mr Campey was described by the Reviewer as an expert in the area of mobile phone forensics.
In summary, Mr Campey concluded that Mr Agha's mobile phone was likely in or around the suburb of Russell Lea at 9am on 8 December 2017 and during the 8 minute phone call made at 9am the mobile phone was moving in a westerly or south-westerly direction.
Mr Campey was required for cross-examination. Where relevant I will refer to his oral evidence below.

Evidence of the Commissioner

The Commissioner filed the "s 58 documents" which relevantly included, summarised by category, documents in relation to: 1. the Tribunal; 2. the Original Decision; 3. the Review Decision; 4. the Supreme Court Proceedings, together with the Supreme Court and Court of Appeal decisions.
The Commissioner also relied on: 1. the statement of Mr Stewart Devine sworn 8 May 2023. Mr Devine is the director and Licensee-in-Charge of Devine; 2. the affidavit of Christopher Melotti affirmed 4 May 2023; 3. the affidavit of Tara Jane Mazzei affirmed 15 May 2023; 4. the affidavit of Vanessa Huguet affirmed 3 May 2023.

The statement of Mr Stewart Devine

Mr Devine relevantly states: 7 On or about 8 December 2017, being the date of Mr Agha's resignation from Devine Real Estate Group, the business used a software database called Complete Data (CD). Among other usages, the system was used to record and store the names and contact details of the business' contacts and stakeholders. 8 To the best of my knowledge, each member of the sales team was given a username and password to gain access to CD. 9 An employee's username was typically their email address. 10 Once a password was issued by CD, a sales staff could change their password as they wish. A password was unique to each employee. 11 I can confirm that I have never had any knowledge of Mr Agha's password. 12 I am unaware whether I could have been authorized to access Mr Agha's password from the IT providers of CD, but in any event, I never did request this information. 13 I did not make the changes to the phone numbers of the contacts on 8 December 2017 or at any time. 14 As recorded in my diary, I had a listing on the morning of 8 December 2017. It is common knowledge within my sales team that I would typically allow 90 minutes for a listing. 15 Given the passage of time, I may be mistaken as to the following. However, to the best of my memory, sometime after the listing on 8 December 2017, I met Mr Agha at a café in Concord with Tara Mazzei, our HR manager at the time. 16 During the meeting, I reiterated to Mr Agha his obligations under the terms of our Share Holders Agreement. In particular, the 3 years and radius obligations to not compete and his obligations not to approach staff. 17 l suggested to Mr Agha that he should perhaps work in the Newtown area which was outside of the restraint zone for 3 years then I would welcome him back as a competitor. 18 Mr Agha advised me that the restraints in the Share Holder Agreement were "unenforceable" according to his legal advice and that, in his view, 3 months non-compete clause would be "reasonable". 19 l suggested to Mr Agha that he needed to get another legal opinion.
Mr Devine was required for cross-examination. Where relevant I will refer to his oral evidence below.

The evidence of Ms Harris

Ms Harris is a Technology Team Leader. She was asked to clarify how the Devine Complete Data System can be used to change contacts' phone numbers and the speed at which the changes can be made.
Relevantly, she states that: 10 The fastest method to change a phone number is using the contact list view layout in the desktop/laptop version of Complete Data using FileMaker Pro. When you change the data in any field it automatically saves once you move to the next field. 11 Using the laptop version of Complete Date, I have established that changing one phone number against a contact record via the list view layout takes on average around 4 seconds. Timing myself, I was able to establish that changing one digit of a phone number in 10 contact records by simply moving to the next phone number field in the Contact List layout took me 39 seconds. 12 To ascertain the approximate time it would take me to make changes to phone numbers in Complete Data using FileMaker Pro on my desktop, on the 3rd May 2023 | logged into our Demo version of Complete Data as the user Cathy Harris. From the List View layout I changed phone numbers against 18 contact records. Between the time 10:26:24 am and10:27:03 am[.] I changed the mobile phone number against 10 contact records which took 39 seconds. I was then able to conduct a find on the records modified by Cathy Harris on 3ª May 2023 and export the Log Data field which is the field that contains what data has been modified, the user who modified it along with the date and time of the modification which is outlined in Annexure A. 13 Accessing Complete Data on a mobile phone is via PHP not via FileMaker Pro, this version is called Complete Data Essentials (CDE). In CDE you are able to look at a list view of your contacts on your mobile device however you are unable to change data from this screen on your mobile device. 14 To change phone numbers in Complete Data on a mobile phone the user needs to log into CDE. You are able to view your contacts from a list, however, to change a contact record you need to click into the detailed view of that contact record from the list view screen, modify the phone number and then click 'Save Contact. You are then able to go back to the list view by using the back arrow twice, scroll down to the next record in the list and repeat this same process. 15 To change one phone number against a contact record using your mobile device takes a minimum of 20 seconds this is because any changes made using CDE requires you to save the change. Also changing the second digit in a mobile number would require you to delete the fourth, third and second digit and retype those digits before saving the contact record none of which is necessary when using a desktop or laptop computer. 16 To ascertain the approximate time it would take me to make changes to phone numbers in Complete Data using CDE on my mobile device, on the 3* May 2023 | logged into our Demo version of CDE on my iPhone as the user Lee Woodward. I changed the mobile phone numbers against 5 contact records using the process outlined in point 13 of this Affidavit. Between the time 11:02:52 am and 11:04:03 am I changed the mobile phone number against 5 contact records. Changing the records from a mobile device takes longer than changing data from the desktop version due to the fact the data needs to be saved upon leaving the contact record. The purpose of logging in as a different user than Cathy Harris was so I could then log into the desktop version, conduct a find on the records modified by Lee Woodward on 3rd May 2023 and export the Log Data field which is outlined in Annexure B.
Ms Harris was required for cross-examination. Where relevant I will refer to her oral evidence below.

The evidence of Mr Melotti

Mr Melotti says that, to the best of his recollection, he did not have access to the applicant's password, and did not make any changes to the phone numbers of the business contacts in the Devine Real Estate Complete Data CRM on 8 December 2017.
Mr Melotti was not required for cross-examination.

The evidence of Ms Mazzei

Ms Mazzei says that, to the best of her recollection, she did not have access to the applicant's password, and did not make any changes to the phone numbers of the business contacts in the Devine Real Estate Complete Data CRM on 8 December 2017.
Ms Mazzei was not required for cross-examination.

The evidence of Ms Huguet

Ms Huguet says that, to the best of her recollection, she did not have access to the applicant's password. If she did, she says that it would have been because the applicant had granted her access under his instructions while the personal computer was unlocked and programs already opened by him or his personal assistant.
Ms Huguet says that can "strongly confirm" that she did not make any changes to the phone numbers of the business contacts in the Devine Real Estate Complete Data CRM on 8 December 2017 or at any stage.
Ms Huguet was not required for cross-examination.

High level summary of the applicant's submissions

The applicant submits that the Delegate relied on 3 grounds in reaching the Original Decision: 1. the applicant's sabotage of the Devine phone records; 2. the applicant taking Devine confidential information; and 3. the applicant diverting of siphoning Devine clients to Belle.
Before me the applicant vigorously opposed matter (1), admitted matters (2) and (3) but submitted that he had an honest and genuine belief that he was permitted to do so.
The applicant relied on submissions of Mr Horowitz dated 24 March 2024 and 10 April 2024, of 18 July 2024 (in reply) and Mr Horowitz's extensive oral submissions made at the hearing.
In overall summary, the applicant submits that: 1. there is no utility in taking any disciplinary action against the applicant; 2. the Reviewer should have decided to take no further action against the applicant.
In the alternative, if the Tribunal determines that disciplinary action should be taken against the applicant, the applicant submits that the proportionate and appropriate action to be taken in the circumstances of this case, where the only potential harm caused by the applicant's misconduct was to his former employer (and not to any consumers) - is for a direction to be given to the applicant pursuant to s 192(1)(b) of the PSA requiring him to give an undertaking to the Commissioner to the following effect. On the next occasion that I leave the employment of a real estate agency. I will obtain legal advice as to what my obligations are in respect of: (i) approaching or soliciting clients of my former employer, and (ii) confidential information that has come into my possession during the course of my employment, including client contact lists; and I will comply with that advice.

High level of the Commissioner submissions

The Commissioner relied on her Opening Written submissions dated 8 May 2023, together with Mr Bagley's extensive oral submissions at the hearing.
The Commissioner submits that the Original Decision and the Review Decision were correct and should be affirmed by the Tribunal.
In relation to the applicant's sabotage of Devine's client records, there is no error in the Reviewer's finding that the applicant "may not have been directly involved in the alteration of client records", the evidence leads to the inexorable conclusion that only one of two people sabotaged the Devine Client list, either the applicant, or Mr Coombes, acting in concert with and enabled by the applicant.
In relation to the applicant taking Devine's confidential information; 1. the applicant's submission that he did not understand that the client records were not confidential is implausible and "flies in the face" of his "keen awareness" as to the post employment restraint in the Shareholders Agreement and the fact he had sought and obtained legal advice; 2. much has been made in the submissions of the applicant of the decision of the applicant not to lead evidence in the Supreme Court, but what is evident in the judgment is that the extent of the objective documentary evidence is so overwhelming that even if the applicant had done so it would made little, if any difference, to the Supreme Court's findings concerning the applicant's blatant breaches of the restraints and breaches of confidence; 3. Justice Sackar's findings with respect to the applicant's breaches of ss 181, 182 and 183 of the Corporations Act apply equally and with as much force to the applicant's misappropriation and misuse of Devine's confidential information; 4. the submissions of the applicant and his reliance on the defence of honest and reasonably held belief are misguided and lack merit, and the defence of honest and reasonable mistake has no application to the objective test as to whether for the purposes of ss 181, 182 and 183 of the Corporations Act the conduct occurred, which it clearly did; 5. the applicant took information to gain a benefit for himself and provide himself with a competitive advantage so that he could start his own business in direct competition with Devine, 6. in relation to the applicant poaching of clients from Devine and the misuse of Devine's confidential information; 1. the applicant admits that after he was terminated he took "some" clients from Devine to Belle Property Neutral Bay; 2. the Court found that the applicant, in concert with Mr Coombe, another ex-employee of Devine, had systematically diverted some 19 clients from Devine to Bell.
The Commissioner submits that Review Grounds 2 and 3 should be dismissed and the Review Decision confirmed.
In relation to whether or not the applicant is a fit and proper person to hold an authority, in summary the Commissioner submits that that facts show that the applicant: 1. siphoned or diverted clients to his new employer for his own personal advantage in contravention of the Shareholder Agreement and his employment contract; 2. sent himself (and used) confidential information in contravention of the Shareholder Agreement and his employment contract; 3. breached ss 181, 182 and 183 of the Corporations Act whilst both as an employee and as a director of Devine after ceasing to be an employee; 4. failed to honour an undertaking made by his solicitor to Devine after ceasing employment to comply with the restraints in the Shareholder Agreement and his employment contract; 5. used confidential client information for personal gain to the detriment of Devine; 6. more probably than not aided and enabled systematic and repeated sabotage of contact lists belonging to Devine; 7. had no reasonable basis to belief he could take clients from Devine to his new employer or take and use the confidential information of Devine.

ADR Act and PSA Act

Section 9 of the ADR Act provides: 9 WHEN ADMINISTRATIVE REVIEW JURISDICTION IS CONFERRED (1) The Tribunal has "administrative review jurisdiction" over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
It is common ground that the Review Decision is an "administratively reviewable decision" for the purposes of s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
As the Tribunal noted in Freind v Commissioner of Police, NSW Police Force [2024] NSWCATAD 163: 1. there is no formal onus of proof. In considering an application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review (Freind at [16]); 2. the Tribunal is to make its own decision and there is no presumption that a respondent's decision is correct; the Tribunal should consider all relevant materials and ignore all irrelevant materials (Freind at [17]); 3. the requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83] (Friend at [18]): "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]." 1. as Principal Member Britton (as the Deputy President then was) observed in BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [17]: … a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46. 1. in determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the relevant legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].

PSA Act

In this case the relevant enabling legislation is the PSA Act.
Section 14 of the PSA Act relevantly provides: 14 Eligibility for a licence or certificate of registration (1) An individual is eligible to hold a licence only if the Secretary is satisfied that the individual - … (b) is a fit and proper person to hold a licence …
Section 27 of the PSA Act relevantly provides: 27 Administrative review by NCAT A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Secretary - (a) a decision refusing to grant a licence or certificate of registration to the person (including such a decision pursuant to an application for the reissue or restoration of a licence or certificate of registration), (b) a decision to impose a condition on a licence or certificate of registration of the person.
Section 191 of the PSA act provides: 191 Grounds for disciplinary action Disciplinary action under this Part can be taken against a person who is or was the holder of a licence or certificate of registration on any one or more of the following grounds - ,,, (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, … (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,
Section 192 of the PSA Act relevantly provides: 192 Disciplinary action (1) Each of the following actions is disciplinary action that the Secretary can take against a person under this Act - (a) caution or reprimand the person, (b) give a direction to the person requiring the person to give a specified undertaking to the Secretary as to the manner in which the person will conduct business or exercise functions under a licence or certificate of registration held by the person, (c) give a direction to the person requiring the person to take specified action within a specified time in connection with the conduct of business or the exercise of functions under a licence or certificate of registration, (d) impose a monetary penalty on the person of an amount not exceeding 100 penalty units in the case of an individual or 200 penalty units in the case of a corporation, (e) impose a condition on the person's licence or certificate of registration, (f) suspend the person's licence or certificate of registration for a period that does not exceed the unexpired term of the licence or certificate of registration, (g) cancel the person's licence or certificate of registration, (h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period, (i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee, either permanently or for a specified period. (2) A power conferred by this Act to take disciplinary action against a person is a power to take any one or more of the actions that constitute disciplinary action. …

Facts prior to this administrative review

On the evidence before me I make the following findings of the relevant facts prior to the commencement of these proceedings.

Background

In 2008, the applicant became a shareholder, director and employee of Devine. Devine is one of a number of companies in the Devine Real Estate group.
On 8 December 2017, the applicant resigned from Devine.
On 21 December 2017, the applicant signed an employment agreement with Belle.
In March 2018, Devine commenced proceedings against the applicant in the Supreme Court of New South Wales, alleging that Mr Agha had: 1. sabotaged 905 client records held in Devine's database (Client Records) by changing one digit of the contact phone numbers for the clients so that the phone numbers were no longer correct; 2. siphoned clients of Devine to Belle; and 3. taken confidential client contact lists with him when he left Devine.

Supreme Court decision

On 28 June 2019, in circumstances where the applicant filed no evidence, the Supreme Court of New South Wales (Supreme Court) in Devine Real Estate Concord Ply Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786 (Supreme Court Decision), relevantly found as follows.
First, the applicant had engaged in the "systematic and repeated sabotage" of Devin' Client Records, and that to suggest otherwise "is likewise contrary to common sense". The Court stated: Factual findings on breach: sabotage of telephone numbers 281 I am satisfied the First Defendant engaged in the systematic and repeated sabotage of the Plaintiffs' client contact numbers by changing one number only in 905 files on 8 December 2017. To suggest otherwise is likewise contrary to common sense. 282 This much was demonstrated by Ms Harris for the Plaintiffs who was not required for cross-examination, and provided persuasive evidence that the First Defendant had engaged in this sabotage. … 25 In the absence of explaining who else did this, in the absence of evidence of self-sabotage by any of the other employees of the Plaintiffs, and further in the absence of cross-examination of Ms Harris, there is a clear suggestion that it was indeed the First Defendant who, through his username, changed the phone records. 286 Further, the 8 December 2017 was the very same day that the First Defendant's employment in the Devine Group was terminated. There was only one person at that time that could have had access to the phone lists and a motive to obstruct the Devine Group: the First Defendant. To suggest the First Defendant did not change the phone numbers is also contrary to the evidence that his log-in was used to gain access to the complete data database of the Plaintiffs from 8:52am and 10:23am (CB 2050, 3017-3020). 287 Although there is no direct evidence of the First Defendant's behaviour, in my view this plainly was an act of seeking maliciously to disadvantage and obstruct the Plaintiffs from doing business and maintaining contact with their clients. Had it not been rectified it was likely to have wreaked havoc and caused a great deal of time to reconstruct the client contact details. The evidence of Ms Harris provides ample material to suggest the First Defendant in fact accessed the system of the Plaintiff's for 91 minutes on 8 December 2017 in order to change the telephone numbers. No one else relevantly would conceivably have had a motive to perpetrate this activity. It was not suggested the Plaintiffs had themselves done this for good reason. 288 This act indicates a degree of malevolence directed to harming the Plaintiffs' business. This is also to be seen alongside the First Defendant's clear attempt to contrive an early termination of exclusive agency with Mr Boumelhem, by asking him to sign a notice of termination as late as December 2017 despite the document purporting to be dated 1 October 2017. 289 The effect of this act was to breach the Shareholders Agreement entered into by the First Defendant particularly clause 6(a) requiring devotion to "the interests of the company", clause 6(b) requiring "best endeavours" and clause 8(e) prohibiting an act that would diminish the business of the company. This also breached clause 5.1(d) of the Employment Agreement requiring the First Defendant to perform his duties in a "diligent, professional and ethical manner and refrain from doing anything that may adversely affect or reflect" upon his employer.
Secondly, the applicant breached "the restraints of trade mandated by Clause 10 of the Shareholders Agreement and Clause 19 of the Employment Agreement" by "siphoning customers from the Devine Group" to his new employer Belle. The Court stated: Factual findings on breach: diversion of properties 290 Leaving aside the taking of the client lists, a number of particular findings of breach are sought by the Plaintiffs in respect of particular properties. 291 Generally, I am satisfied that the Defendants engaged in breach by siphoning customers from the Devine Group to their new employer Belle Property. The clearest indication of this is the trail of contemporaneous materials that demonstrate that a property owned by a Devine Group client would come in and do some business with the First Defendant and/or become a contact of the Plaintiffs, and then come out again and follow the Defendants into the Belle Property group. 292 This constitutes breach of the restraints of trade mandated by clause 10 of the Shareholders Agreement and clause 19 of the Employment Agreement. By developing these properties for Belle Property, the Defendants exploited the confidential client lists of the Plaintiffs to their personal advantage and not to the advantage of the Plaintiffs, again also in breach of the confidentiality requirements of the Shareholders Agreement (for the First Defendant) and the Employment Agreement (for both Defendants).
Thirdly, the applicant breached the restraints in cl 10 of his Shareholders Agreement and cl 19 of his Employment Agreement by exploiting the confidential client lists of the Devine Group to his personal advantage. At [292], the Court stated: Factual findings on breach: confidential client lists 271 I am satisfied both the Defendants engaged in breaches of confidential information by sending confidential client lists to their personal email addresses prior to terminating their employment with the Plaintiffs. 272 This conduct is expressly prohibited by the Employment Agreement. … 273 Clause 6(d) of the Shareholders Agreement likewise prohibits either parties disclosing "to any person firm or company whomsoever any trade secrets or other confidential information relating to the company or its customers or suppliers save as necessary in the course of the company's business". 274 Furthermore, the information taken from the Plaintiffs by the Defendants was in my view innately confidential, absent any provisions of the Shareholders Agreement and Employment Agreement. It is patent on the face of the materials, that client lists and client details are crucial to the profitable conduct of a real estate business. 275 From as early as 15 November 2017 the contemporaneous documents show the First Defendant emailed to his personal email address excel spreadsheets and client lists (CB 561). This occurred further on 16 November, 23 November, 28 November and 4 December 2017 for example. On 8 December he provided to the Third Plaintiff a letter advising him he wished to sell his shares. Clearly, the sending of these client lists occurred in the context of the First Defendant desiring to leave the Devine Group. 276 On 23 November 2017 the Second Defendant likewise emailed two excel spreadsheets to his personal email address (CB 938, 6259). 277 In my view, there can be no serious suggestion that these emails were not sent by the Defendants and there is no real prospect that any of them were somehow 'spoofed'. The timing of the emails places them squarely at a point when the Defendants desired to leave the Devine Group and were communicating with each other and other employees about contact lists. … 278 Therefore, I am more than satisfied that the Defendants engaged in breach of the Plaintiffs' confidential information and both sent confidential client lists to their personal email addresses in breach of the above sections of the Employment Agreement. To suggest otherwise is contrary to the contemporaneous materials. Further, to suggest somehow some other person sent these emails using the Defendants' accounts defies logic and is highly unlikely, as it was only the Defendants who would have any motivation to send contact lists to them. 279 This finding is, in my view, further reinforced by the failure to call the Defendants which adds further to the inference that they did indeed engage in this particular breach of confidential information. 280 There is no sensible suggestion that can be made that the client lists and business information sent by the Defendants should not be characterised as "confidential information". This is expressly contrary to the definition of "Confidential Information" in the Employment Agreement and also the inherently sensitive and confidential nature of client lists, business information and similar private information used by the Plaintiffs to develop their business. In my view the Defendants' suggestion that none of the information sought to be protected by the Plaintiffs was/is confidential is misguided and contrary to the express terms of the Employment Agreement and Shareholders Agreement.
Fourthly, the applicant breached ss 181, 182 and 183 of the Corporations Act and each being civil penalty provisions, made a declaration for the purposes of s 1317E of that Act. The Court stated: Breaches of the Corporations Act 2001 (Cth) and equitable duties 388 The Plaintiffs also seek remedies against the Defendants for breach of equitable duties and their duties under ss 181-183 of the Corporations Act 2001 (Cth) including an order for compensation under s 1317H of the Corporations Act 2001 (Cth) (submissions [675], [714] SOC [22]-[23]). The Defendants did not clearly deal with this issue in their submissions save to suggest that the Plaintiffs have failed to establish either of the Defendants committed a serious criminal offence. … 392 In my view it is hard to see how the invocation of the Corporations Act 2001 (Cth) adds further depth to the Plaintiffs' argument, particularly as it was not developed in any detail in oral argument. However, given my findings above, and the clear wording of s 183 of the Corporations Act, it is clear that both Defendants did obtain information which they used "improperly" to both "gain an advantage for themselves or someone else" and also "cause detriment to the corporation". I propose to make a finding of breach of s 183 of the Corporations Act 2001 (Cth) and a resulting declaration under s 1317E. Again, although I do not see how it adds further to the Plaintiffs' case on restraint of trade, I am willing to find both Defendants breached ss 181 and 182 of the Corporations Act 2001 (Cth) relating to good faith and misuse of position given the egregious conduct of both and declare in the appropriate form accordingly. 393 As to the opaque reference to breach of "equitable duties" I do not propose to make any finding or grant any final injunction or declaration to the effect of protecting against breach of equitable duties. My findings as to breach have already been sufficiently identified above, and any reference to imprecisely framed "equitable duties" has not been sufficiently identified by the Plaintiffs. 394 I likewise do not propose to make findings as to any "serious criminal offences" committed by the Defendants, as this issue was inadequately ventilated by the parties at trial and does not go to resolve the real issues in the proceedings.

Court of Appeal decision

On 9 March 2021, the Court of Appeal in Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 upheld the findings of the Supreme Court, save for one respect not relevant to these reasons (Court of Appeal Decision).

Issuing of the Notice To Show Cause

On 10 March 2022, the Delegate issued the Notice To Show Cause (NTSC) to the applicant. The contents of the NTSC will be discussed below.
On 17 October 2022, the Delegate published the Original Decision. This is sufficiently summarised above.
On 16 November 2022, the Reviewer affirmed the Original Decision in their Review Decision. In summary, the Reviewer: 1. determined the grounds for taking disciplinary action against the applicant under ss 191(c) and 191(e) of the PSA Act were established; 2. concluded that the disciplinary action taken was proportionate and appropriate given the circumstances, the outcome serving as a warning to other licence holders that disregarding the legislation is unacceptable, and the consequences of doing so are significant.

Tribunal application

On 23 November 2022, the applicant filed the Amended Application.
I turn now to consider the applicant's grounds for this Tribunal to review the Review Decision. In the course of considering the parties' respective submissions, I will make further factual findings relevant to my review.

Consideration of Review Ground 1

Review Ground 1 is that the Reviewer erred in affirming the Original Decision in circumstances where: 1. the Original Decision was based upon a finding that the applicant sabotaged the client records of Devine; but 2. the Reviewer found that the applicant may not have been directly involved in the sabotage of Devine client records;

Preliminary issue

The applicant takes a preliminary point in relation to the applicant's "sabotage" of the Devine client database. That point is that in the NTSC, the applicant submits that the Commissioner asserted that the applicant altered the telephone numbers in the Devine database, in circumstances where she now asserts that someone other than the applicant could have done so in circumstances where the Reviewer found that the applicant "may not have been directly involved in the alteration of the client record".
The applicant submits that: 1. the Commissioner cannot now change her case to assert that the applicant was "responsible" for the sabotage even though he did not personally carry out the sabotage; 2. the applicant is entitled to know the precise nature of the allegations against him. Frugtniet v Administrative Decisions Tribunal [2005] NSWCA 257 at [211-122]; Dawson v Greyhound Racing Victoria [2017] VSC 123 at [15]; 3. the NTSC only provides proper particulars if it is read as alleging that the applicant carried out the sabotage, not some other person; 4. the Commissioner cannot now change her case to assert that the applicant was "responsible" for the sabotage even though he didn't personally carry out the sabotage: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 5. in light of the above authorities, the Commissioner is not able to change her case that the applicant sabotaged the database to one alleging that the applicant was involved in a conspiracy of some kind to sabotage the database, as this represents a substantially different question from that considered by the primary decision maker: ZZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1633 at [217]-[231].
This issue was robustly addressed by both counsel in their openings. Mr Horowitz submitted: When one looks at the regime under the Property and Stock Agents Act where a notice to show cause has to be issued which sets out in detail what the basis is for the cancellation of the licence the decision that was before the original decisionmaker was whether Mr Agha had engaged in that conduct that was set out including the sabotage of the records. And it was specifically put on the basis that he was the one who had sabotaged the records. And so now it's a different question that is being asked, if it is going to be put, that he didn't sabotage the records but he got somebody else to do it for him. That is a different question which was not put to Mr Agha previously, wasn't in the notice to show cause, wasn't in the basis of the original decision, wasn't the basis of the reviewer's decision other than there was this elliptical reference to - that he may not have been directly involved. And there's been no - there's been no notice that the grounds that are set out in the notice to show cause are going to be changed in any way in these proceedings and my submission is that the nature of the question fundamentally changes if this Tribunal is being asked to make some other finding other than the finding that was made by the Supreme Court which was relied upon to cancel Mr Agha's licence.
In response, Mr Bagley submitted that: it was very, very clearly put in the notice to show cause Mr Agha was responsible and that he or someone with access to his login details made these changes. And if Mr Agha is operating under a misapprehension as to that he may wish to apply for an adjournment so he can put further evidence before the Tribunal. But if he doesn't wish to apply for that the respondent will be conducting the Tribunal hearing on the basis [that you show] 00:40:44 cause, can I take the Tribunal to the notice?
Mr Bagley then took me to the NTSC.
I pause to note that the NTSC is 9 pages in length. In the "Findings (Summary)" section of the NTSC, it is stated at [14]: On 8 December 2017, Mr Agha sabotaged 905 contacts in the Devine Concord client database by altering a digit or digits in the customer's telephone number record. This was the date that Mr Agha indicated to Mr Devine that he wishes to leave the business and sell his shares. (emphasis added)
Attached to the NTSC are 5 annexures numbering some 122 pages. These relevantly include the Supreme Court Decision and the Court of Appeal Decision.
Mr Bagley then referred to the Court of Appeal Decision where the Court stated: at [68]: The inference was clearly available that Mr Agha was responsible for the sabotage of the client information. The sabotage was carried out by a person using his username access (which was password protected) on the same day that he gave notice of his intention to leave the Devine Group and when he was planning to set up business in competition to the Devine Group. The primary judge was correct to find that the inference that Mr Agha was responsible for the sabotage could more readily be drawn from his failure to give evidence to contradict that inference.
Mr Bagley then submitted: That is and always has been the concern that the Commissioner has. It is a concern reflected in the Court of Appeal's reasons, Mr Agha was responsible. That doesn't just mean sitting in front of the computer, that means responsible that the Commissioner's case before this Tribunal will be that this question of whether he was driving a car at a particular point in time is a distraction. The question for the Tribunal is was he responsible for this? This conduct that happened using his login details on the morning that he resigned to set up a competing business in which he was to take a substantial equity interest, conduct that started before he had told his employer about what he was proposing to do, conduct that was deliberate, continuous, carried out over a period of time and could only have been carried out for one purpose, which was to cause harm to his then employer, the company of which he was a director in circumstances where he stood to benefit materially personally from that conduct. The notice to show cause identifies as the issue [that the applicant] caused harm to his employer in circumstances where he stood to benefit. … There's only one person who had an interest in this happening, Mr Agha. Either Mr Agha sat at the computer and did it himself or he directed someone, for example, Mr [Coombe] to do it. That was the issue about which the applicant was given procedurally fair opportunity to respond, delegate addressed it in one way, the internal reviewer addressed it consistently with the submissions that I've made on the basis that it really doesn't matter who was sitting at the computer or not. If the applicant is under a misapprehension about the case the applicant is required to meet and because of that has failed to put on evidence the applicant considers is necessary in order to meet that case then there may be a question about whether that misapprehension is reasonable, having regard to the notice, but it would be for the applicant to apply for an adjournment to put on that further evidence. In the absence of that application the respondent's position will be this Tribunal's function to consider the application that was - the questions that were being considered by the internal reviewer subject to the constraints on that decisionmaker.
Mr Bagley then invited the applicant to seek an adjournment if he was under a misapprehension of the case he was required to meet.
In written submissions, the Commissioner submitted that from the evidence of witnesses Coombe, Touma, Huguet, Melotti, Mazzei, Uribe and Devine and the findings of the Supreme Court and Court of Appeal "Mr Coombes, as aided and abetted and enabled by and acting under the direction of the applicant was in concert with the applicant the person who directly manipulated the database".
In oral submissions at the conclusion of the hearing Mr Bagley submitted: [T]he applicant's case is that this sabotage occurred and the only question is who did it? The applicant's case is that the only thing that makes sense is that one other person did it, not the applicant. The Commissioner's position is that Mr Agha was responsible for the sabotage of Devine's record. That is the inescapable conclusion from all of the evidence taking into account the Briginshaw Standard which obviously guides the Tribunal's decision. It was his password protected login that was used. It happened the morning he announced his intention to resign. … He didn't … recall telling anyone in advance of his resignation. (emphasis added)
The applicant referred to the following statement of Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [66]: I am of opinion that the Tribunal's task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate's findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker's exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision … .
In oral submissions, Mr Bagley embraced that statement.
The applicant also relied on the statement of Forrest J in Dawson v Greyhound Racing Victoria [2017] VSC 123 at [35]: It is clear that the question for the Tribunal is not whether there has been some breach of the disciplinary rules at large but whether the breach or breaches alleged or found by the primary decision-maker are established. For the reasons I have expressed in [14] - [25] herein, I consider that the change in its amended form raised a substantially different question from that considered by the primary decision-makers. It follows that I consider that the amendment was impermissible and that the Member has fallen into jurisdictional error.
I accept the applicant's submissions on this preliminary point. As noted, the NTSC squarely and clearly stated: On 8 December 2017, Mr Agha sabotaged 905 contacts in the Devine Concord client database by altering a digit or digits in the customer's telephone number record.
I do not accept that it is the responsibility of the applicant to attempt to infer from the 109 pages of the Supreme Court and Court of Appeal Decisions accompanying the NTSC that what the Commissioner was alleging in the NTSC was that the applicant was responsible for the sabotage through the acts of another, let alone that: Mr Coombe, as aided and abetted and enabled by and acting under the direction of the applicant was in concert with the applicant the person who directly manipulated the database.
Accordingly, I consider that Review Ground 1 must be confined to the Reviewer erring in affirming the Original Decision, in circumstances where the Original Decision was based on a finding that the applicant sabotaged the client records, but also found that the applicant may not have been directly involved in the sabotage of client records.
I pause to note that, as will be seen, I have declined to find that the applicant sabotaged the Devine Client Records. I would have reached the same conclusion as to whether the applicant sabotaged the Devine Client Records in concert with Mr Coombe, or that the applicant was responsible for Mr Coombe's actions, if indeed Mr Coombe undertook the direct acts of sabotage.
I turn now to a consideration of whether or not the applicant sabotaged the Devine Client Records.
The applicant submits that the Delegate accepted that they were not bound by the Supreme Court and Court of Appeal Decisions, but adopted those findings while disregarding most of the exculpatory evidence submitted to the Delegate by the applicant.
The applicant does not identify what that exculpatory material was. The material included the expert report of Mr Geoffrey Campey dated 14 November 2022, the applicant's statutory declaration of 14 November 2022 and the statutory declaration of Ms Jessica Carey also dated 14 November 2022.
In my view there is substance in the applicant's position. There is no reference in the Original Decision to the evidence of Mr Campey or the evidence of Ms Carey.
However, I am not reviewing the Original Decision, I am reviewing the Review Decision.
The purpose of the review was to "consider the merits of the decision to take disciplinary action against Wajih Agha by determining whether the grounds under ss 191(c) and 191(e) of the PSA Act have been established and the penalties imposed are appropriate in the circumstances".
Before the Reviewer was: 1. the expert report of Geoffrey Campey dated 14 November 2022; 2. the statutory declaration of the applicant dated 14 November 2022; 3. the statutory declaration of Jessica Carey dated 14 November 2022; 4. Telstra data records for the applicant's mobile account; and 5. a drop box link containing documents provided to Mr Campey on 28 October 2022.
The first component of the Review Decision considered s 191(2) of the PSA.
Under the heading "Facts relevant to the internal review", the Reviewer relevantly stated: On 4 December 2019, the NSW Supreme Court made findings against Mr Agha in the case of Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786. On 9 March 2021, the NSW Court of Appeal, in the case of Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29, upheld one ground of Mr Agha's appeal and dismissed the remaining. This ground related to one of the orders made in the Supreme Court judgment and did not alter the substantive findings. … Between 15 November 2017 and 8 December 2017, Mr Agha sent confidential client contact lists belonging to Devine Concord to his personal email address. In this regard, the Court of Appeal was satisfied Mr Agha engaged in breaches of confidential information by sending confidential client lists to his personal email prior to terminating his employment with Devine Concord. On 8 December 2017, between the times 8:52am and 10:23am, Mr Agha sabotaged 905 contacts in the Devine Concord client database by altering a digit or digits in the customer's telephone number record. This was the date that Mr Agha indicated to Mr Devine that he wished to leave the business and sell his shares. …
The Reviewer then noted that the applicant's submission stated: the delegate erred in finding that Mr Agha sabotaged the client records of Devine Concord by adopting the findings of the Supreme Court the delegate disregarded the mobile telephone records which show Mr Agha was not at the Devine Concord office between 9:00am and 9:09am on 8 December 2017 when he allegedly sabotaged the client records but rather, he was travelling to work in dismissing the significance of the Telstra records, the delegate stated note there is no information before me, despite the suggestion in the submissions accompanying the Telstra Records, that the client records could only be changed from the Concord Office Mr Agha gives evidence that in 2017 he only ever logged into the database using the desktop computer on his desk at the Concord office or laptop computer that he used at home. He did not have access to the database from his mobile phone and in 2017 he did not use his laptop outside his home because it did not work unless it was plugged into a power point evidence has now been provided by Geoffrey Campey, an expert in the area of mobile phone forensics. Mr Campey has analysed the Telstra records and concluded that Mr Agha's mobile phone was likely in or around the suburb of Russell Lea at 9am on 8 December 2017 and during the eight minute phone call made at 9am the mobile phone was moving in a westerly or south-westerly direction. Mr Agha gives evidence that between 8:59:38am and 9:00:34am on 8 December 2017, he read three text messages on his mobile phone and responded to those messages the delegate disregarded Mr Agha's evidence that he was engaged in other activities and it was not possible for him to simultaneously make changes to the database evidence has now been provided by Jessica Carey, a former sales agent at Devine Concord who regularly made changes to client records in the database. Ms Carey states that changing one digit of each client's telephone number in a list of clients generated by the database would take approximately 5 seconds per client and it was not possible to click or type in any other windows on the computer while simultaneously making changes to client records in the database the delegate's finding that Mr Agha sabotaged Devine Concord's client records in the Concord office until 935am on 8 December 2017, and then temporarily suspended his sabotage of the records in order to drive to the Strathfield office, where he immediately recommenced sabotaging the same records, is completely implausible if the delegate found that Mr Agha was not sabotaging Devine Concord's client records while he was driving to the Strathfield office, it would be inconsistent to find that Mr Agha was sabotaging Devine Concord's client records while he was driving to the Concord office that day there is ample evidence to demonstrate that Mr Agha could not have been the person who sabotaged Devine Concord's client records on the morning of 8 December 2017 the delegate erred in finding that Mr Agha's belief that he was entitled to take to client contact lists and some clients with him when he left Devine Concord was not reasonable the delegate erred in finding that Mr Agha's is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee if it is found that Mr Agha's did not sabotage Devine Concord's client records on the morning of 8 December 2017, then there is no basis for finding that Mr Agha is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee because he honestly believed he was entitled to take some of his clients and contact lists, regrets the conduct and will take steps to ensure this does not reoccur. (emphasis as in original)
The Reviewer then states: is unclear why the additional information now requested to be relied upon was not provided as part of the notice to show cause process. The information merely indicates Mr Agha may not have been directly involved in the alteration of the client records, however the fact remains that his password and username were used to alter client records, which still inexplicably occurred on the morning when Mr Agha planned to resign and set up a business in competition with the Devine Group. Mr Agha has admitted that multiple people working for the Divine Real Estate Group knew and / or had access to both [his] user name and password for the database. (emphasis as in original)
The Reviewer then concludes: Mr Agha's conduct clearly indicates a failure to comply with legislative requirements under the Corporations Act and the PSA Act and demonstrates a blatant disregard of his responsibilities to ensure confidentiality of client information and obligations to his employer regarding contractual agreements. Therefore, it is concluded that Mr Agha is not a person of good character nor does he possess sufficient moral integrity and rectitude that can be entrusted to be involved in the direction, management and conduct of the business of a licensee at this time.
As can be seen, the Reviewer made no reference to the expert evidence other than to repeat the applicant's submission. In those circumstances, it is not persuasive reasoning for a conclusion that the applicant sabotaged 905 contacts in the Devine Concord client database by altering a digit or digits in the customer's telephone number record.
In any event, that is now the role of the Tribunal. The Tribunal's role is to make the correct and preferrable decision on the material before it as it stands at the date of the hearing. This may include consideration of material that was not considered by the decision maker: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.

Applicant's submissions

In summary, the applicant makes the following submissions: 1. a finding that the applicant sabotaged the Devine data base is a serious one finding is serious one which must be satisfied in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 335; 2. the database records were changed on 8 December 2017 between the following times: 1. 8.52am-9.12am; 2. 9.l7am-9.35am; and 3. 9.52am-10.23am. 1. the evidence given by the applicant was that he was driving to work at about 9am on 8 December 2017. This is supported by the conclusions of Mr Campey that the applicant was likely not in the Concord office between 9am and 9.09am on 8 December 2017, but was moving in a westerly or south westerly direction from the area serviced by the Drummoyne BTS; 2. the applicant gave evidence that he travelled from the Concord office to the Strathfield office at about 9.30am on 8 December 2017 (which takes approximately 10 to 15 minutes), where he met with Mr Uribe for approximately 30 minutes; 3. Mr Uribe agreed in cross-examination that his meeting with the applicant took approximately 30 minutes. 4. accordingly, there was a period of approximately 40 to 45 minutes where the applicant could not have been changing records in the database; 5. as the longest break in the database records was 17 minutes (being between 9.35am and 9.52am), it is apparent that the applicant could not have been the one who altered those records; 6. in any event, it is inherently unlikely that that the applicant would have commenced sabotaging the database at 8.52am, then taken a break to print out his resignation letter, drive to the Strathfield office in order to resign, and then recommenced sabotaging the database at 9.52am; 7. furthermore, that the applicant was not intending to leave employment immediately, but upon completion of his sale of shares in the business. Accordingly, there was no reason for him to sabotage the database on that day; 8. finally, the applicant gave evidence in re-examination that he knew that any changes to the database could be reversed. This evidence is corroborated by Mr Melotti's emails to Ms Harris on 19 and 20 December 2017, and Ms Harris' evidence in cross-examination that it was standard practice for clients of Complete Data to have backups of the database from which data could be restored. Accordingly, there was no utility in the applicant sabotaging the database.

The Commissioner's submissions

In summary, the Commission submits: 1. there is no error in the Reviewer's finding that the applicant "may not have been directly involved in the alteration of the client records"; 2. witnesses Touma, Huguet, Melotti Mazzei, Uribe and Devine establish that though they may or may not have had knowledge of the applicant's password, they did not tamper with the phone numbers on the Devine Client List in the CRM module of the Complete Data System; 3. that evidence leads to the inexorable conclusion that of only one of two people sabotaged the Devine Client List; either it was the applicant himself or alternatively Mr Coombes, acting in concert with and enabled by the applicant; 4. it is important for the Tribunal to remember that Devine also took action against Mr Coombe for breach of the restraints in his employment contract and breach of Devine's confidentiality, and the Court's findings against Mr Coombe are of relevance; 5. although Justice Sackar did not make a direct finding that it was Mr Coombe who sabotaged the phone numbers on the Devine Client List, he did find that Mr Coombe was working in concert with the applicant to disrupt the business of Devine and divert as much business to himself and the applicant at Belle which he began working for alongside the applicant as early as January 2018 after he resigned from Devine on 20 December 2017; 6. the Tribunal is entitled to draw the inference from evidence the witnesses referred to in [112(2)] and the findings of the Supreme Court that Mr Coombe, aided and enabled by and acting under the direction of the applicant, was in concert with the applicant the person who directly manipulated the database.

Conclusion

For the reasons set out above, I have found that it is not appropriate to consider in this review whether or not Mr Coombe sabotaged the Devine records in concert with or aided and abetted by the applicant.
Therefore, I will only consider whether or not the applicant sabotaged the records. In my view, the evidence fails to establish on the balance of probabilities, applying the Briginshaw principle, that this is the case. I accept and find as facts those matters set out in the applicant's submissions and summarised at [111]. I accept the applicant's submissions on this issue which I find persuasive. I also note that the applicant gave robust and consistent evidence on this issue.
Pausing to consider the applicant's oral evidence and demeanour generally, I considered that the applicant was a truthful witness who was trying to assist the Tribunal. I have reached that conclusion as the applicant repeatedly gave responses to questions which were not in his interest to do, such as admitting that:

he did not understand that he had to put the interests of Devine (as an employee and director) ahead of his own interests
he did not understand that he owed Devine statutory obligations as a director;
that he did not understand that he had to act in the best interests of Devine.

That said, I do not accept the applicant's evidence that Mr Devine may have sabotaged the records of his own business.
In any event, as to the allegation that while not directly undertaking the sabotage but being responsible for it, there is no evidence that the applicant told anyone else to sabotage the database. Further, during his cross-examination, the applicant gave evidence that:

he believed that he told Mr Coombe on 8 December 2017 that he was resigning, but he does not remember whether it was before or after he handed in his resignation letter;
he did not remember when he told Ms Touma that he was resigning, and whether he told her before 8 December 2017.

In circumstances where Mr Coombe had the applicant's password for the database, the applicant submits that it is entirely possible that Mr Coombe thought it would be a good idea to sabotage the database and decided to do so without informing the applicant, but in any event there is simply no evidence that the acted in concert with Mr Coombe to sabotage the database, or that the applicant even knew about the sabotage at the time it occurred. And, had I decided to consider the issue, I would have rejected entirely the allegation that the applicant aided and abetted and enabled Mr Coombe.

Review Ground 2

Review Ground 2 was that the Reviewer erred in finding that the applicant's conduct demonstrated a blatant disregard of his responsibilities to ensure confidentiality of client information and obligations to his employer regarding contractual agreements, in circumstances where the applicant held an honest and reasonable belief that he was entitled to take client contact lists and some of his clients with him when he left Devine.

Applicant's submissions

As noted, Mr Agha admitted that he took some of his clients from Devine to Belle Property. In summary he submits that: 1. he believed it was the clients' choice as to which agent to use; 2. he had received legal advice that the restraint of trade clause in the Shareholders Agreement was unenforceable; 3. the principal of Devine, Mr Devine, told him on 8 December 2017 that he would not be paid out for his shares in Devine Concord and Devine Drummoyne unless he signed an agreement which contained a three year restraint of trade; 4. he was of the view that he should not be under any restraint until he was paid out for his shares; and 5. he did not receive any money in respect of his shares until April 20l8; 6. Mr Devine had no right to require the applicant to sign a separate restraint of trade agreement. As such, the statement that Mr Devine made to the applicant on 8 December 2018 - refusing to pay him out for his shares unless he signed such an agreement - constituted a repudiation of the Shareholders Agreement; 7. in light of Mr Devine's repudiation of the Shareholders Agreement - which the Supreme Court held was to be read as co-existing together with the Employment Agreement - the applicant's view that he should not be under any restraint until he was paid out for his shares is arguably correct in law: see Morris v Baron & Co [1918] AC 1 at 9, where Lord Finlay LC stated "[a] party to a contract which imposes certain obligations and confers certain rights upon him cannot claim to exercise these rights while repudiating his obligations in material particulars". See also: Nina 's Bar Bistro Pty Limited (Formerly Mytcoona Ply Limited) v MBE Corporation (Sydney) Pty Limited [1984] 3 NSWLR 613 at 632-633; and Ingram and Knee v Patcroft Properties Limited [2011] NZSC 49 at [31]-[32]; 8. because the applicant did not give evidence during the Supreme Court proceedings, however, there was no evidence of Mr Devine's repudiation of the Shareholders Agreement before the Court. As such, the Supreme Court was not asked to determine whether the applicant was bound by the restraints of trade while Mr Devine refused to pay out the applicant for his shares; 9. notwithstanding the fact that this question was never determined by the Court, it is submitted that the applicant had a reasonable basis for his belief that he was entitled to take some of his clients with him when he left Devine and went to work for Belle.

The Commissioner's submissions

In summary, the Commissioner: 1. submits that the applicant's submission that he did not understand that the client records that he stole from Devine were not confidential is both implausible and flies in the face of his keen awareness as to the post employment restraint in the Shareholders Agreement and the fact that he had sought and obtained legal advice; 2. relies on the findings and conclusions of Sackar J (which the Commissioner sets out over 6 pages of submissions); 3. submits that while much has been made in the submissions of the applicant of his decision not to lead evidence in the Supreme Court, what is evident in the judgment is that the extent of the objective documentary evidence is so overwhelming that even if the applicant had done so it would made little, if any difference, to the Court's findings concerning the applicant's blatant breaches of the restraints and breaches of confidence. 4. Justice Sackar findings with respect to the applicant's breaches of ss.181, 182 and 183 of the Corporations Act apply equally and with as much force to the applicant's misappropriation and misuse of Devine's confidential information.

Conclusion

In my view, there is substance in the Commissioner's submissions. The applicant did take Devine clients with him to Belle, and has admitted as much. He did use confidential information of Devine, notwithstanding that he thought he was entitled to do so, and in my view this was opportunistic and improper of him to do so.
I consider that the evidence establishes breaches of ss 181, 182 and 183 of the Corporations Act.

Review Ground 3

Review Ground 3 is that the Reviewer erred in finding that the applicant is not a person of good character and does not possess sufficient moral integrity and rectitude such that he can be entrusted to be involved in the direction, management and conduct of the business of a licensee at this time.

Applicant's submissions

The applicant commences his submissions by setting out the passage from Carr v Director-General, Department of Finance and Services (formerly Department of Services, Technology and Administration) [2011] NSWADT 157 where the Tribunal stated that: 57. Where there is evidence of misconduct, it has been held that relevant factors in determining a person 'fitness and propriety' are (a) the person explanation for the misconduct, (b) its seriousness to the particular activity, (c) the motivation of the person, (d) whether the misconduct is an isolated incident, (e) the person underlying qualities of character, and (1) the person conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform: see McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994: see, in particular, the judgments of Kirby P, at [21] to [26], and Powell JA, at [59] to [73]). 58. In Masic, at [56], Deputy President Handley accepted as relevant the factors raised by the respondent. These were '(a) the passage of time since the offending conduct occurred, (b) demonstration of insight into the offending conduct, (c) remorse, and (d) the impact on consumers.
The applicant then addresses each of those factors.

(a) The person's explanation for the misconduct

In relation to the taking of clients, the applicant's misconduct is explained by his honest and reasonable belief that he was not bound by the restraints of trade while Mr Devine was refusing to pay him out for his shares.
In relation to the taking of the Contact Lists, the applicant's misconduct is explained by his honest and reasonable belief that the Contact Lists were not confidential, and that he was entitled to take them with him when he left Devine.
Although the Court ultimately found that the applicant was not entitled to take clients or the Contact Lists from Devine, the fact that the applicant did so does not demonstrate that he is dishonest, or lacking in moral integrity and rectitude. It merely demonstrates that his genuinely held beliefs that he was entitled to do so were mistaken.

(b) Its seriousness to the particular activity

If the applicant's misconduct caused any damage, that damage was to Devine, where the question of damages is still to be determined by the Supreme Court).
The applicant did not cause any harm to consumers or to the public at large. In light of this, and given that the applicant's conduct in taking clients and the contact lists from Devine was due to his mistaken belief that he was entitled to do so - rather than dishonesty - such conduct falls towards the lower end of the scale in terms of seriousness (as opposed to stealing monies from a trust account, for example).

The applicant was not motivated by dishonesty, but acted in the way that he did because he believed that he was entitled to do so.

(d) Whether the misconduct is an isolated incident

The misconduct was an isolated incident. The applicant has never had any prosecutions or disciplinary action taken against him, and he has no criminal record.

(e) The person 's underlying qualities of character

The applicant's underlying qualities of character are attested to in the character references and client reviews provided to the Delegate.

(f) The person's conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform

The applicant has not engaged in any misconduct since he took some of his clients The applicant recognises that he was wrong to take clients from Devine Concord. He now has a much better understanding of his obligations relating to restraints of trade, and will do his best in the future to abide by any restraints of trade that apply to him.'
The applicant now understands that he was wrong to take the Contact Lists with him, and will ensure that he obtains legal advice before taking any information with him from any future employer, so that this does not happen again.

(g) The passage of time since the offending conduct occurred

It has been over six years since the offending conduct occurred and the applicant has not misconducted himself since that time.

(h) Demonstration of insight into the offending conduct

Here the applicant repeats what is set out at [135] and [136] above.

(i) Remorse

The applicant regrets taking clients and the Contact Lists from Devine, and will take steps to ensure that he does not repeat such conduct in the future.

(j) The impact on consumers

There is no evidence that the applicant's misconduct had any negative impact on consumers.

Conclusion

In Frugtniet v Commissioner for Fair Trading, Commissioner for Fair Trading v Travel Action Pty Limited [2004] NSWADTAP 12 at [209], the Appeal Panel summarised the principles involved in assessing fitness and propriety as follows: "the question must be determined with reference to the particular purposes of the regulatory regime involved; . . . account must be taken of the minimum standards of the profession or occupation being regulated, .. . matters such as 'character 'suitability', 'integrity' and 'trustworthiness ' - indeed, 'any aspect of fitness or propriety that is relevant to the public interest' - must be considered, . . . while an isolated act may suffice to show lack of fitness and propriety, this will not necessarily be the case, and 'deliberate prolonged conduct or a course of conduct' stands on a different footing; and finally... 'the evaluation of fitness involves a wide discretion'. "(Emphasis added)
The applicant submits that one of the principal purposes of the real estate licensing regime is to protect the public from dishonest or disreputable real estate agents. Critically, in this regard, the Delegate found that the applicant did not cause any harm to consumers. This finding was not overturned by the Reviewer.
In light of the matters set out above, the applicant submits that the Reviewer's finding that the applicant is not a person of good character and does not possess sufficient moral integrity and rectitude such that he can be entrusted to be involved in the direction, management and conduct of the business of a licensee at this time was erroneous.

Commissioner's submissions

In summary, the Commissioner submits that the facts show that the applicant: 1. siphoned or diverted clients to his new employer for his own personal advantage in contravention of the Shareholder Agreement and his employment contract; 2. sent himself (and used) confidential information in contravention of the Shareholder Agreement and his employment contract; 3. breached ss 181, 182 and 183 of the Corporations Act while both an employee and as a director of Devine after ceasing to be an employee; 4. failed to honour an undertaking made by his solicitor to Devine after ceasing employment to comply with the restraints in the Shareholder Agreement and his employment contract; 5. used confidential client information for personal gain to the detriment of Devine; 6. more probably than not aided and enabled systematic and repeated sabotage of contact lists belonging to Devine Concord; and 7. had no reasonable basis to belief he could take clients from Devine to his new employer or take and use the confidential information of Devine and that, 8. the facts indicate an intentional systematic course of conduct by the applicant designed to injure the business of Devine and gain an advantage for the applicant and in and of themselves strongly mitigates the applicant against being a fit and proper person to hold a real estate licence.
The Commissioner submits that it is worthwhile to note that, even leaving aside the issue of the sabotage of the phone numbers in Devine's client records, Justice Sackar described the breaches of the restraints through the misuse of the confidential information of Devine as having the character of "maliciousness, blatancy and extensiveness".

Applicant in reply

In reply, the applicant relevantly submits that there is no evidence that the applicant promised to return to Devine or otherwise destroy the confidential information he had taken, and that the applicant denied in cross-examination that he had promised to do so.

Conclusion

Contrary to the Commissioner's submissions, I am not satisfied that the applicant: 1. siphoned or diverted clients to Belle; 2. failed to honour an undertaking made by his solicitor to Devine after ceasing employment to comply with the restraints in the Shareholder Agreement and his employment contract; 3. more probably than not aided and enabled systematic and repeated sabotage of contact lists belonging to Devine Concord; 4. had no reasonable basis to belief he could take clients from Devine to his new employer or take and use the confidential information of Devine and that, 5. the facts indicate an intentional systematic course of conduct by the applicant designed to injure the business of Devine and gain an advantage for the applicant and in and of themselves strongly mitigates the applicant against being a fit and proper person to hold a real estate licence.
However, I am satisfied that the applicant: 1. sent himself (and used) confidential information in contravention of the Shareholder Agreement and his employment contract; 2. breached ss 181, 182 and 183 of the Corporations Act while both an employee and as a director of Devine after ceasing to be an employee; 3. used confidential client information for personal gain to the detriment of Devine.

Consideration of Review Grounds 4 and 5

The applicant has rolled up Review Grounds 4 and 5 as follows; the Reviewer erred in finding that the disciplinary action taken to: 1. cancel the applicant's real estate licence; 2. declare the applicant to be a disqualified person for the purposes of the PSA for a period of 2 years and 6 months; and 3. disqualify the applicant from being involved in the direction, management or conduct of the business of a licensee for a period of 2 years and 6 months; was proportionate and appropriate in the circumstances.

Applicant's submissions

In summary, given that: 1. the Reviewer did not make a finding that Mr Agha sabotaged the Client Records; and 2. neither the Delegate nor the Reviewer made a finding that Mr Agha did not honestly believe that he was entitled to take some of his clients and the Contact Lists from Devine Concord when he left; the applicant submits that the Reviewer's decision to cancel his real estate licence and disqualify him from being involved in the direction, management or conduct of the business of a licensee for a period of 2 years and 6 months was erroneous.
The applicant submits that the purpose of disciplinary action is not to punish the licence holder, but to protect the public: Hinton v Commissioner for Fair Trading (No 2) [2006] NSWADT 299 at [10].
The applicant submits that public is not in need of protection from the applicant in circumstances where the Delegate accepted that: 1. the applicant did not cause any harm to consumers; 2. the applicant has demonstrated remorse; 3. the applicant's misconduct occurred more than six years ago; 4. the applicant not engaged in any further misconduct, nor has any further misconduct been alleged. 5. the reviews of the applicant provided by his clients, and the character references provided, attest to the applicant's good character and work ethic within the real estate industry; and 6. no prior disciplinary action has been taken against the applicant.
The applicant submits that none of those findings by the Delegate were overturned by the Reviewer.
The applicant submits that he fact that the public is not in need of protection is further underscored by: 1. the content of the glowing reviews of Mr Agha given by his clients: 1. most of whom attest to Mr Agha's professionalism; 2. many of whom attest to Mr Agha's honesty; 3. one of whom attests to Mr Agha's trustworthiness; and 4. one of whom writes: [The applicant] has been a big part of our Real Estate Journey since early 2000 he has become not only our agent but a member of our family and true friend always looking out for our best interest and not his own like most agents... ; and 1. the content of the five character references provided for the applicant, which attest to his honesty, integrity and professionalism - and one of which states: ...I have always found him to work to the highest possible standard of ethics.
The applicant further submits that given that the Supreme Court proceedings involve exactly the same conduct the subject of the Notice to Show Cause issued by the Delegate, the following matters ought be taken into account in determining whether (or what) disciplinary action should be taken against him: 1. the fact that his misconduct constituted a civil wrong committed against Devine Concord (rather than any consumers) which is being redressed by the Supreme Court; 2. the fact that the applicant was effectively unable to work for more than a year as a result of an injunction granted against him in the Supreme Court proceedings; and 3. the fact that the applicant has had to pay approximately $1.5 million in legal fees in relation to the Supreme Court proceedings to date - and the proceedings are still ongoing after six years.
In light of these matters, it is submitted that: 1. there is no utility in taking any disciplinary action against the applicant; and 2. the Reviewer should have decided to take no further action against the applicant pursuant to s 193 of the PSA Act.
Finally, the applicant submits that, If, notwithstanding all of the above, the Tribunal determines that disciplinary action should be taken against the applicant, it is submitted that the proportionate and appropriate action to be taken in the circumstances of this case, where the only potential harm caused by the applicant's misconduct was to his former employer (and not to any consumers), is for a direction to be given to the applicant pursuant to s 192(l)(b) of the PSA Act requiring him to give an undertaking to the Respondent to the following effect: On the next occasion that I leave the employment of a real estate agency, I will obtain legal advice as to what my obligations are in respect of (i) approaching or soliciting clients of my former employer, and (ii) confidential information that has come into my possession during the course of my employment, including client contact lists; and I will comply with that advice."

Commissioner's submissions

In summary, the Commission submits that the applicant: 1. continues to display a lack candour and the tendency to act dishonestly in that he only admits dealing with three clients of Devine after the termination of his employment when in fact the evidence showed and the Court found that he had approached and dealt with no less than nineteen of Devine's clients; and 2. continues to display a lack candour and the tendency to act dishonestly in that he only admits to the taking of copies of contact list when the facts show that he also took the following confidential information of Devine (a) the "After Sale checklist"; and (b) the "compulsory sales checklist"; and (c) the "Open home cover document"; and (d) the "Sales Compliance Checklist" and (e) the "Marketing Book of the Devine Group"; and (e) the marketing price list of Devine; and (f) "property files and marketing items" of Devine; and 3. whilst still a director of Devine, not only breached ss 181, 182 and 183 of the Corporations Act by using the confidential information of Devine for his on advantage and diverting clients to himself after leaving Devine but he also could not be trusted to and consistently failed to honour the undertaking he had provided to Devine by his solicitor to abide by the restraints until such time as the matter came on for hearing.
The Commissioner submits that by the applicant's failure to demonstrate complete candour to the Tribunal and to honour undertakings made to Devine that the applicant has not demonstrated sufficient reformation of character to indict that he is a fit and proper person to hold a licence.
In those circumstances, the Commissioner submits that: 1. the appropriate censure is that as was found by the Reviewer; 2. if the sabotage allegation is not established, the high point of what the Tribunal would order in respect of the siphoning of clients and the taking of confidential information is cancellation of the applicant's licence and disqualification for 1.5 years, with the low point being a reprimand

Applicant in reply

In reply, the applicant's counsel said that he had been unable to find any published case involving disciplinary proceedings being taken against a real estate agent under the PSA Act for the type of conduct the subject of these proceedings, and that almost all cases involving cancellation of a real estate agent's licence involve dishonesty. (particularly in relation to trust accounts), convictions of crimes of dishonesty, or the bankruptcy of the agent.
The applicant submits that, as the conduct the subject of these proceedings does not involve dishonesty, the cancellation of the applicant's licence would be excessive.
This is said to be "all the more so" in circumstances where the Commissioner accepted that the applicant's conduct did not have a direct impact on customers given that: 1. one of the principal purposes of the real estate licensing regime is the protection of the public: see Ur Rehman v Commissioner for Fair Trading [2023] NSWCATOD 102 at [721-[73]; Creative Academy Group Pty Limited v White Pointer Investments Pty Limited [2024] NSWCA 133 at [163] at [163]; and 2. the purpose of disciplinary action is not to punish the licence holder, but to protect the public: Hinton v Commissioner for Fair Trading (No 2) [2006] NSWADT 299 at [10].
The Commissioner submitted that the difficulty with the undertaking proffered by the applicant to obtain and comply with legal advice on the next occasion that he leaves the employment of a real estate agency is that it puts a substantial obligation on the applicant to properly brief his solicitors with all of the necessary information, and for those solicitors then to properly advise the applicant about all of his obligations.
The applicant submits that that is no reason for the Tribunal not to direct the applicant to give the proffered undertaking, and that the applicant is willing to assume the obligation to properly brief his solicitors with all of the necessary information. And the possibility that the applicant's solicitors may not properly advise him about all of his obligations is a possibility that anyone faces when they obtain legal advice - it is not a relevant factor to be taken into account here.
On the question of whether the applicant conduct (absent the sabotage allegation being established) was a "one-off aberration about which an apology has been made, and which will not happen again", the Commissioner conceded that all she could point to against that proposition was the fact that the applicant continues not to understand his role as a director.

Conclusion

Section 191 of the PSA relevantly provides that disciplinary action can be taken against a person who is or was the holder of a licence or certificate of registration if 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: s 191(c).
Section 192(1) of the PSA provides a range of possible disciplinary actions which are set out above at [60].
The applicant submits that the appropriate disciplinary action is the Tribunal making a direction that he give an undertaking in the terms set out above. The Commissioner submits that that is an inappropriate outcome and, the sabotage matters not being made out, that the appropriate disciplinary action lies somewhere between a reprimand and cancellation of the applicant's licence and disqualification for 1.5 years.
There are some parallels between the Tribunal's function in this review where the primary legislation being considered is the PSA and the Tribunal's function when hearing complaints under the Health Practitioner Regulation National Law (NSW) (National Law). The parallel is that both Acts have purposes which are protective of the public (noting that the PSA does not include an objective similar to that found in s 3A of the National Law).
As the Tribunal noted in Health Care Complaints Commission v Akinci (No 2) [2024] NSWCATOD 104: 1. in Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA (with whom Basten and Emmett JJA agreed, held: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." (emphasis added) 1. In Health Care Complaints Commission v Bradley [2022] NSWCATOD 47, the relevant principles, as stated on many occasions by earlier decisions of the Tribunal considering the making of protective orders, were stated to include the following (at [101]): The relevant principles in determining a protective order have been stated on many occasions and include the following: (1) the protection of public safety and health is paramount; National Law, s 3A; (2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); (3) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; (4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; (5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Wales Bar Association v Meakes [2006] NSWCA 340; (6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]. (emphasis added)
I consider that those principles apply by analogy. The purpose of any protective order is specifically to protect the public, deter the person concerned, to generally deter others in the same profession or industry and to reassure the public of the Tribunal's understanding of the seriousness of the conduct thereby maintain public confidence in the profession or industry.
I have considered the various submissions. I consider that the disciplinary action proposed by the applicant to be an inadequate one and to not appropriately reflect the seriousness of the applicant's conduct. In my view, at the very least a reprimand is called for. As I have noted and found, the applicant sent himself (and used) confidential information in contravention of the Shareholder Agreement and his employment contract; breached ss 181, 182 and 183 of the Corporations Act while both an employee and as a director of Devine after ceasing to be an employee and used confidential client information for personal gain to the detriment of Devine.
Unlike the Reviewer, I did have the benefit of hearing the applicant's oral evidence and thus had the opportunity to gauge and measure his reliability and honesty.
I have considered at some length whether or not a period of suspension or cancellation was called for. I consider that there is substance in the submissions made on behalf of the applicant that he did not cause any harm to consumers; that he has demonstrated remorse; that his misconduct occurred more than six years ago has not engaged in any further misconduct, nor has any further misconduct been alleged.
Nevertheless, in weighing all these matters, in my view the appropriate disciplinary outcome is the cancellation of the applicant's real estate licence for a period of 12 months. This period of cancellation reflects the seriousness of the conduct I have found established and will act a deterrent to other practitioners not to engage in such like conduct, thus reinforcing the standards the public expects of real estate agents.
I propose to make the following orders: 1. the internal review decision of 16 November 2022 is set aside. 2. in substitution for the internal review decision of 16 November 2022 the Tribunal will: 1. cancel the applicant's real estate licence; 2. declare the applicant to be a disqualified person for the purposes of the PSA for a period of 12 months; and 3. disqualify the applicant from being involved in the direction, management or conduct of the business of a licensee for a period of 12 months.
I do not propose to make the direction proposed by the applicant as to the giving of an undertaking to the Commissioner. I agree that it is of limited utility.

Costs of the Referral

There remains the issue of the applicant's costs of the Referral application, which are reserved.

Preliminary issue

Neither party opposed me determining costs on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).
In this respect, I note that in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that: [i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions.

Applicant's submissions

The Commissioner having been unsuccessful in that application, the applicant seeks his costs.
In summary, in the submissions of 10 November 2023, the applicant submits that there are special circumstances warranting an award of costs being: 1. the Referral Application had no tenable basis in law, was misconceived and/or was lacking in substance; 2. despite the Applicant drawing the Commissioner's attention to the Court of Appeal's decision in Sudath v Health Care. Complaints Commission [2012] NSWCA 171 prior to the hearing of the Referral Application on 4 September 2023 and inviting the Commissioner to withdraw the application, the Commissioner proceeded with the application; and 3. in bringing and running the Referral Application, the Commissioner failed to fulfil her obligations as a model litigant.

Commissioner's submissions

The Commission relies on submissions dated 22 November 2023 and submissions filed 18 April 2024.

Submissions dated 22 November 2023

In summary, the Commission here submits: 1. there was nothing about the application that was out of the ordinary; 2. the Tribunal could not satisfied that the Referral application had not tenable basis in law, was misconceived and/or lacking in substance.

Submissions filed 18 April 2024.

Relevantly, the Commissioner submits that: 1. there are no special circumstances in this case; and 2. it was only the weekend before the Referral Application was heard that the applicant identified an authority that ultimately proved persuasive to the Tribunal's reasoning; 3. if the Commissioner is ultimately successful in the substantive proceedings, that would be a further reason for there to be no order as to costs on the application to refer a question to the Supreme Court; the fact that the applicant was successful in a step along the way should be balanced against the applicant's ultimate outcome in the proceeding. By analogy to judicial proceedings where interlocutory costs orders are often made on the basis that those costs be costs in the proceedings, this is a situation where any interlocutory success should only result in a costs order if the applicant ultimately succeeds in the proceeding. Ultimately his success or otherwise will depend on whether he is found to have engaged in a serious act and whether he is found to have given credible evidence to the Tribunal, matters that might fairly inform the general costs discretion.

Applicant in reply

In response to the submissions of 22 November 2023, the applicant submits that the submissions costs entirely ignore the conclusion reached by the Tribunal on the question of law, namely that: These matters lead to the conclusion that the application for referral should not be granted. The referral should not be granted as it would not be an abuse of process to allow the applicant to rely on the proposed evidence. On the contrary, it would be procedurally unfair not to allow him to do so. (emphasis added by the applicant)
As the Tribunal stated at paragraph 87 of the Referral Decision, Sudath provides "the clearest of guidance to this Tribunal". As such, the applicant submits that the Commissioner had no tenable basis for seeking to have the question of law referred to the Supreme Court. And the Commissioner should certainly not be attempting to re-argue the question of law in her submissions on costs, as she does at paragraphs 25 to 31. Nor is it open to the Commissioner to re-argue the question of law at the final hearing of this matter, as the question of law has been conclusively determined by the Tribunal in the Referral Decision.
In response to the submission made in the submissions filed 18 April 2024, namely this is a situation where any interlocutory success should only result in a costs order if the applicant ultimately succeeds in the proceeding, the applicant submits that the general rule in judicial proceedings, including for interlocutory applications, is that costs follow the event (Uniform Civil Procedure Rules 2005, r 42.1), and that an order that the costs of an interlocutory application be costs in the proceedings is a departure from the general rule.

Consideration

The first issue is identifying the relevant costs rule. The parties agree, and I accept, that the relevant costs rule is found in s 60 of the NCAT Act. That section relevantly provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant.
The Appeal Panel of the Tribunal has considered on many occasions the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party. The principles were summarised in The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6] - [15], paraphrased as follows:

"special circumstances" mean circumstances out of the ordinary but not to the degree of being exceptional or extraordinary;
a costs order is not made simply because one or more of the circumstances in s 60(3) of the NCAT Act is established. The special circumstances must be sufficient for the Tribunal to exercise its discretion in favour of making a costs order;
the party seeking costs bears the onus of persuading the Tribunal that the special circumstances are sufficient to justify departing from the usual principle in s 60(1) of the NCAT Act;
the discretion should be exercised judicially, with consideration that the usual principle is that by reason of s 60(1) of the NCAT Act each party bears its own costs, and the Tribunal must be persuaded to depart from that principle;
whether there are sufficient special circumstances to justify a costs order is a question of fact and each case must be assessed according to its circumstances.

In my view, there are special circumstances, that being the weakness of the Commissioner's application to refer matters to the Supreme Court. For the reasons I gave in the Referral Decision at [73] to [76], the application was an extremely weak one, so weak that the Commissioner should have seriously entertained withdrawing her referral application. And a consequence of the application was that 4 of the days set aside for the final hearing had to be vacated, with the final hearing then not being heard until 7 months later. This could be considered to have unreasonably prolonged these proceedings.
For those reason I find special circumstances established.
Having decided that special circumstances exist, the next issue is whether I should, in the exercise of my discretion, award costs. In Brodyn Pty Ltd v Owners Corporation - Strata Plan 73019 (No 2) [2016] NSWCATAP 224 the Appeal Panel said: 24 Further, where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account. These include: (1) Costs are compensatory: see Latoudis v Casey (1990) 170 CLR 334; (2) That an unsuccessful party bears the costs of the successful party: Oshlack v Richmond River Council [1998] HCA 11 at [134]; … 26 Overall, the Tribunal is to exercise its discretion in a manner that is fair and reasonable having regard to the circumstances of the particular case.
I note that the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94.
In my view, having found that special circumstances are established, and having considered the principles applicable to awarding costs generally, including that costs are compensatory, that this is a matter in which costs should be awarded.

The costs of these proceedings

The final matter for determination is the costs of these substantive proceedings.
I imagine that both parties may argue they had a measure of success. On the basis that both parties will be seeking a costs order, I will be directing that each party file their submissions (and if necessary evidence) within two weeks. Each party can respond to the other's submissions within a further two weeks. Replies can be made within a further week if necessary.
I ask each party to consider whether there are factors that might militate against the recovery of all of their costs; noting that a court or tribunal may deprive the successful party of the costs relating to an issue on which the successful party lost when that issue was clearly dominant or separable: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 at [64].
As with the costs of the Referral Application, I propose to deal with any further costs on the papers, but I would be sympathetic to an in person hearing if sought by one or other of the parties.
Submissions are to be limited to 10 pages.

Orders

The Tribunal orders: 1. The internal review decision of 16 November 2022 is set aside. 2. In substitution for the internal review decision of 16 November 2022 the Tribunal: 1. orders that the applicant's real estate licence is cancelled; 2. orders that the applicant be disqualified from being involved in the direction, management or conduct of the business of a licensee for a period of 12 months; and 3. declares the applicant to be a disqualified person for the purposes of the Property Stock and Agents Act 2002 (NSW) for a period of 12 months. 1. In relation to the costs of the respondent's application to have questions of law referred to the Supreme Court of NSW: 1. a hearing is dispensed with; 2. the respondent is to pay the applicant's costs as agreed or as assessed. 1. Any party seeking costs of the substantive application is to file and serve submissions (and if appropriate evidence) within two weeks of this decision. 2. The other party may respond within a further two weeks. 3. Replies may be filed within a further week if necessary.

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: 06 November 2024

Property Stock and Agents Act 2002(NSW)

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Judgment (67 paragraphs)

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Legislation Cited (5)

Cases Cited (34)

Cited By (1)