The matter before the Tribunal is a review of the decision to refuse a Real Estate Agent licence to Mr Darren Bobroff on the basis that Mr Bobroff is not a fit and proper person for the purposes of the Property, Stock and Business Agents Act, 2002 ("the Act").
Mr Bobroff applied for a licence as a Real Estate Agent on 5 April 2017. The Respondent refused the licence because Mr Bobroff had been struck off the roll of legal practitioners in South Africa by order of the High Court of South Africa in December 2016. The Respondent considered this meant that Mr Bobroff was not a fit and proper person to hold a real estate licence in NSW - given the similarities between the responsibilities of a legal practitioner and those of a real estate agent.
In the present case the Tribunal must decide whether Mr Bobroff is a fit and proper person to hold a Real Estate Agents licence under the Act.
[4]
Relevant Law
Section 8 of the Act provides that a person must not carry on the business of a real estate agent unless the person is the holder of a real estate agent's licence.
Section 14(1)(b) of the Act provides that a person is eligible to hold a licence only if the Secretary of the Department is satisfied that the person is a fit and proper person.
Section 19 of the Act states that an application must not be granted if an applicant, such as Mr Bobroff, is ineligible to be granted the licence.
[5]
Summary of the Respondent's case and submissions
In 2016 Mr Bobroff was granted a certificate of registration as a Real Estate Salesperson.
On or about 19 September 2016, the Respondent received an enquiry from a journalist in South Africa, Tony Beamish, concerning Mr Bobroff's ability to hold a real estate agent's licence. Mr Beamish referred to Mr Bobroff as being a "fugitive from the South African criminal justice system" .
The Respondent commenced an investigation into Mr Bobroff's background.
On 5 April 2017, Mr Bobroff submitted an Application for a Real Estate Agent Licence - Individual - to the Respondent.
On the 6 July 2017, Mr Bobroff attended an interview at the offices of the Respondent.
On 20 October 2017, the Respondent was advised by email from the Law Society of the Northern Provinces in South Africa (LSNP) that Mr Bobroff was suspended from the Roll of Attorneys in South Africa on the 26 April 2016 and was struck off the roll on 8 December 2016. That email attached the following documents:
1. News article entitled "The LSNP calls on attorneys Ronald and Darren Bobroff to return to SA to face charges against them";
2. Order of the High Court of South Africa - Gauteng Division, Pretoria dated 24 March 2016;
3. Order of the High Court of South Africa - Gauteng Division, Pretoria dated 8 December 2016;
4. Judgement of Makgoka J, in Law Society of the Northern Provinces v Graham and Others (61790/2012) [2016] ZAGPPHC 270 (14 March 2016) ("the Judgement of Makgoka"). This judgement suspended Mr Bobroff from the Roll of Attorneys on and from 26 April 2016.
The Respondent then requested that Mr Bobroff provide further information under section 14 of the Licensing and Registration (Uniform Procedures) Act 2002.
On 16 November 2017, Mr Bobroff sent an email to the Respondent attaching a 34 page document titled "Response to the default striking judgement by Ranchod J. - Case Number 20066/2016". The "striking judgement" is the judgement of Ranchod J, in Law Society of the Northern Provinces v Bobroff and Others (20066/2016) [2017] 4 All SA 85 (20 July 2017) ("the judgement of Ranchod J").
Mr Bobroff's response annexed a significant amount of material concerning Mr Bobroff's history as a lawyer in South Africa relating to events leading up to his striking off the Roll of Practitioners. The Tribunal has summarised the contents of Mr Bobroff's response below.
Mr Bobroff also provided various references in support of his application.
On 13 December 2017, the Respondent advised Mr Bobroff of the refusal to grant him a Real Estate Agents Licence.
On 9 February 2018, Mr Bobroff requested internal review of the decision not to grant a Real Estate Agent licence.
The Respondent conducted further enquiries into Mr Bobroff's conduct while a lawyer in South Africa. This uncovered the following documents publicly available over the internet:
1. Ronald and Darren Bobroff finally disbarred;
2. NPA seizes millions from Bobroffs; and
3. Bobroff money frozen in Israel.
On 12 April 2018, the Respondent, after the internal review, confirmed the original decision not to grant Mr Bobroff a Real Estate Licence.
[6]
Summary of the Respondent's submissions
The Respondent made written and oral submissions.
The Respondent also provided documentary material, including judgments of South African courts and media articles. The Respondent alleged that defamation proceedings had been initiated against Mr Bobroff. This was all evidence that he was not fit and proper to be a licensed real estate agent in NSW.
Judgements of the High Court in South Africa in numerous proceedings had found Mr Bobroff and his father in contempt of court. They had suspended them from practice and refused their applications to adjourn proceedings. The judgements contained criticisms of the Bobroffs for their appeals, challenges and adjournment applications. These had been an attempt to use their knowledge of the legal system to frustrate and delay proceedings. There were allegations that the Bobroffs had deliberately evaded service of proceedings; and did not appear in order to frustrate proceedings. The Respondent submitted that the history demonstrated a lack of honesty and candour with the governing law society and the courts and their processes. This behaviour was directly relevant to Darren Bobroff's fitness and propriety to enter into a field that was regulated in a similar way and involved the management of trust funds and recordkeeping.
The Respondent summarised the conduct found by Ranchod J to warrant Mr Bobroff's striking from the roll of legal practitioners in December 2016 as follows:
1. Overreaching (overcharging) of clients;
2. Gaining an unfair advantage over clients through concluding multiple fee agreements with the various clients, on the basis (the firm) may elect which agreement should be applicable on finalisation of the claim;
3. Failing to keep accurate records of time spent on matters;
4. Misappropriation of trust funds - including forging a signature of another director of the firm;
5. Payment made to Mr Bobroff's wife (L. Berman) in the "De La Guerre" matter and recorded as "referral fee";
6. Payment to a "J Kingsbury" who was unknown to the client in the "Pombo" matter in circumstances the Court found this had the effect that income was understated;
7. Existence of 3 accounts (Bidvest, a/c No.11521 and "Zunelle") to avoid being taxed on interest earned;
8. Creation of "fictitious" disbursements in 8 matters;
9. Payments to an employee of the firm out of client ledgers; and
10. Failure to record fees in the accounting records.
The Respondent submitted that this conduct demonstrated a propensity not to conduct transactions or dealings fairly, honestly or openly and posed a material risk to consumers in the day to day operations of a Real Estate Agent.
The judgement of Ranchod J concluded by stating Mr Bobroff "persisted in using every possible avenue to delay, frustrate and avoid facing up to serious charges of a practice wide conduct of overreaching clients, contravening the Contingency Fees Act by relying on unlawful contingency fee agreements, making clients sign several different fee agreements with a view to using the one that was later the most advantageous to the firm, and other unprofessional, dishonourable and even fraudulent conduct". See Law Society of the Northern Provinces v Bobroff and Others (20066/2016) [2017] 4 All SA 85 (20 July 2017)
[7]
Res judicata
The Respondent relied upon the principle of "res judicata". The judgments of the South African courts were final. Their findings could not be reopened in this jurisdiction. The Tribunal could not go behind the final judgements of the High Court in South Africa. The Tribunal was not the jurisdiction in which to challenge the decision of Ranchod J to strike Darren Bobroff from the roll of legal practitioners in South Africa. Mr Bobroff was seeking to introduce evidence that the Respondent could not challenge. He was circumventing due process and the principles of natural justice by attempting to relitigate matters to which the Respondent could not reply.
[8]
Not fit and proper
The Respondent referred to the long line of cases dealing with fitness and propriety of practitioners. Fitness and propriety had been defined as having the "knowledge honesty and ability" to carry on a profession. It was necessary to weigh up the issues both for and against Mr Bobroff in relation to his fitness and propriety to undertake the activities of a real estate agent. See Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127; Sobey v Commercial and Private Agents Board 20 SASR 70 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
In this instance Darren Bobroff did not possess the honesty and the ability to act fairly and openly with consumers.
Public perception was important. A practitioner's standing as a respected member of the community is an aspect of fitness and propriety. It was important for consumers to have confidence in practitioners. Consumers in New South Wales would not have this confidence in Mr Bobroff on the basis of the evidence that was before the Tribunal. See Dixon v Legal Practice Board of Western Australia [2012] WASC 79.
Specifically, the activities that Mr Bobroff would need to undertake as a real estate agent included dealing with assets of great monetary value; negotiating to induce purchasers into transactions; managing trust accounts and collecting rents. This meant that there was significant amount of trust and reliance to be placed upon a real estate agent.
The judgement of Ranchod J showed that Mr Bobroff's conduct was not consistent with honesty and integrity required for the role of a real estate agent. Further Mr Bobroff's conduct during the protracted litigation showed that he lacked candour and honesty with the court and the South African law society. This suggested that he would not demonstrate moral integrity and cooperate with the regulatory regime for real estate agents in New South Wales. The laws of New South Wales concerning registration of real estate agents are in place to protect consumers. Consumers would assume that practitioners would comply with the standards of the profession.
Mr Bobroff had blamed a vendetta against him for the protracted litigation in which findings were made against him. However, he had not in his case addressed his lack of candour with the law society or the courts in South Africa. Even though he had been subject to High Court judgements critical of his conduct, Mr Bobroff had not accepted that he had been involved in wrongful conduct.
Mr Bobroff had presented references from Dr Peter Cashman, Dr Owen Samuels and Professor Gordon Elkington. These references were of little value as they did not refer specifically to Darren Bobroff's conduct.
[9]
Reformation of Character
Mr Bobroff had been removed from the roll of legal practitioners in South Africa in December 2016. The mere passage of time was insufficient to demonstrate a reformation of character. Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357
It was necessary for the Tribunal to be positively satisfied of Mr Bobroff's fitness and propriety - it was insufficient for there to be a lack of evidence against him.
[10]
The judgement of Ranchod J, in Law Society of the Northern Provinces v Bobroff and Others (20066/2016) [2017] 4 All SA 85 (20 July 2017)
The Judgement of Ranchod J outlined the history of the litigation Mr Bobroff had been involved in leading up to his striking off the Roll of Legal Practitioners. The judgement stated at paragraph [7], "There have been several applications, counter applications, interlocutory applications including applications for postponement and for a declaratory order, by the various parties". The relevant judgements are contained in the following High Court cases:
1. De La Guerre v Ronald Bobroff & Partners Inc and Others (22645/2011) [2013] ZAGPPHC 33 (13 February 2013);
2. Graham and Others v Law Society of the Northern Provinces and Others (61790/2012) [2014] ZAGPPHC 207 (15 April 2014);
3. Graham and Others v Law Society of the Northern Provinces and Others (61790/2012 [2014] ZAGPPHC 496 (15 April 2014);
4. Ronald Bobroff and Partners Inc and Others v Vivian (2013/27388) [2014] ZAGPJHC 220 (30 June 2014);
5. Graham and Another v Ronald Bobroff & Partners and Another (5203/2015 [2015] ZAGPPHC 126 (17 March 2015);
6. Law Society of the Northern Provinces and Others (Road Accident Fund Intervening) v Ronald Bobroff and Partners Inc. and Others (61790/12) [2015] ZAGPPHC 1118 (26 August 2015);
7. Judgement of Makgoka J, in Law Society of the Northern Provinces v Graham and Others (61790/2012) [2016] ZAGPPHC 270 (14 March 2016) ("the Judgement of Makgoka");
8. Ronald Bobroff and Partners Inc and Others v Motara and Others, In re: Motara v Ronald Bobroff and Partners Inc and Others (995/2015) [2016] ZAGPJHC 388 (21 October 2016);
9. Bobroff and Another v Law Society of the Northern Provinces and Others; In re: Law Society of the Northern Provinces v Bobroff and Others; In re: Law Society of the Northern Provinces v Graham and Others (2066/2016, 61790/2012) [2017] ZAGPPHC 81 (7 February 2017); and
10. Law Society of the Northern Provinces v Bobroff and Others (2066/2016) [2017] ZAGPPHC 704; [2017] 4 All SA 85 (GP) (20 July 2017).
Mr Bobroff had stated he was struck off and was denied an opportunity of submitting an opposing affidavit rebutting the allegations against him. The judgement of Janse Van Nieuwenhuizen J in Bobroff and Another v Law Society of the Northern Provinces and Others, In re: Law Society of the Northern Provinces v Bobroff and Others, and In re: Law Society of the Northern Provinces v Graham and Others (20066/2016; 61790/2012) [2017] ZAGPPHC 81 (7 February 2017) dealt with the Bobroffs' application to strike out the LSNP's application to have him struck from the Roll of Practitioners or to postpone the LSNP's application.
In relation to the conduct of Mr Bobroff, Van Nieuwenhuizen J stated:
"(The) Bobroffs, being attorneys possessing specialised knowledge of the rules of court were, no doubt, acutely aware that their conduct resulted in the Law Society being incapable of serving the application in strict compliance with the provisions of rule 4.
In my view, the conduct of the Bobroffs was mala fide to the extreme..."
"(The) Bobroffs utilised their knowledge of court procedure to effectively prevent the court from examining their alleged misconduct. In endorsing this kind of conduct the court would bring the legal profession into disrepute".
Mr Bobroff was represented by Counsel solely on the issue of service of the LSNP's application.
[11]
Allegations of lack of honesty and candour by Mr Bobroff
Apart from the findings of Ranchod J, relating to the direct conduct of Mr Bobroff as a lawyer in South Africa, the Respondent submitted that the High Court cases referred to in the entire litigation process demonstrated a complete lack of honesty and candour on the part of Mr Bobroff to the Court and its processes and to the LSNP, the regulatory body for lawyers in South Africa.
[12]
Contempt of Court finding
In Graham and Another v Ronald Bobroff & Partners and Another (5203/2015) [2015] ZAGPPHC 126 (17 March 2015), Mr Bobroff was found to be in contempt of court and fined R100,000 suspended, on condition that he comply with the order of which he was in contempt.
The Respondent submitted that these matters are directly relevant to Mr Bobroff's fitness and propriety to be a real estate agent as Mr Bobroff was seeking to enter a field also regulated in the same manner with respect to trust money and record keeping.
[13]
Mr Bobroff's Case
Mr Bobroff provided a range of documents to the Respondent during the course of the application and internal review process. These included:
A document dated 16 November 2018 titled "Response to the Default Striking Judgement by Ranchod J";
written submissions to the Tribunal dated 12th of November 2018 which canvassed other matters.; and
affidavit material from Ms Martha Kok and Mr Coleman which had been referred to in his submissions. This was provided to the Tribunal after the hearing.
Mr Bobroff relied on his written and oral submissions. He did not give sworn evidence.
Mr Bobroff sought to call his father Ronald Bobroff to give evidence. The Tribunal declined to hear from Ronald Bobroff. He had not previously provided a statement to the Tribunal or the Respondent. The Tribunal did not consider it was procedurally fair to rely upon his evidence in these circumstances. The Tribunal also noted that Mr Ronald Bobroff had been the principal in the firm. He had been subject to the same striking off proceedings as Darren Bobroff. The Tribunal was satisfied that his evidence in relation to this could carry little weight.
The Tribunal did consider a document from Ronald Bobroff which outlined his son's difficult life circumstances.
[14]
Summary of Mr Bobroff's case
In summary Mr Bobroff did not deny that findings had been made against him in South African courts or that he had been struck off the roll of legal practitioners in South Africa. However, Mr Bobroff said that the Tribunal should not rely on these events to find that he was not fit and proper to be granted a real estate licence in New South Wales. This was because the proceedings against him and his father had been the result of a vendetta against him from a third-party health insurer in South Africa - Discovery.
Four affidavits of Law Society Attorneys filed in proceedings against him exposed a plot by South African health insurer Discovery to destroy his legal practice in revenge for the Bobroffs defending of clients. An affidavit from his business partner Mr Bezuidenhout set out the threats that had been made by Discovery to "destroy you all." There was an email from Senior Counsel representing him and his father which also attested to the threats made by Discovery's in-house lawyer to "destroy you all".
The Respondent had not taken into account documented proof that the Discovery health insurer had hijacked the senior management of the Law Society. By hijacking the Law Society management, Discovery had fulfilled its repeated threat to destroy Mr Bobroff, his father and their partner in the legal practice.
He also alleged there was a significant amount of corruption in South African governance structures.
Mr Bobroff noted that there had been a reliance on hearsay against him - website reports and articles. The Department of Fair Trading had taken into account wild allegations in a Google article. This was not valid evidence against him.
As recently as June 2019 the South African Attorneys Fidelity fund had confirmed that there were no misappropriation claims lodged by clients against him.
In the 27 months since they had left South Africa no charges had been brought against him and his father by the NPA. In any event the NPA was regarded in South Africa as a corrupt body.
Mr Bobroff submitted that he had never been convicted of any professional misconduct in any jurisdiction. He was struck off the roll of attorneys in South Africa on 8 December 2016 by default. He said he had been denied an opportunity of submitting an opposing affidavit rebutting the allegations made against him. The Law Society had not afforded him and his father an opportunity to appear before a Law Society disciplinary committee to deal with the allegations against them.
Mr Bobroff said that the Respondent should not have relied on the report of Mr Faris a private accountant and a "hired gun" who had been instructed by those colluding with Discovery to produce a report. He had not been engaged by the Law Society. Mr Faris had relied on documents which had been stolen from their practice by an employee.
The Graham proceedings had been bought by a representative of the Grahams who had a vendetta against Mr Bobroff. These proceedings were not supported by the Law Society.
The Bobroffs' practice had been inspected by Mr Reddy at the behest of the Law Society. Contrary to decades' long Law Society protocol, they were not afforded an opportunity to respond to the inspector's report. Mr Reddy had made allegations in general and vague terms that the firm posed a risk to the Attorneys Fidelity fund. However, the court appointed Curator stated in his 16 November 2016 report that detailed accurate reconciled records had been maintained and were available on request. All balances were in place. The trust fund balanced. The system integrity check found all to be in order. Mr Bobroff noted that there had been an unfair withholding of the Curator's report from the strike off proceedings by the Law Society. This report would have shown that the Law Society's allegation that he had misappropriated clients' funds was malicious and false.
Despite coverage in the media, not one client had come forward to lodge a claim against the Attorneys Fidelity fund. This indicated that neither Mr Bobroff nor any of the practice's directors had misappropriated client trust funds.
Mr Bobroff specifically denied that any client funds were moved to bank accounts in Israel. It was common practice for Jewish South African citizens to have bank accounts in Israel. They had only ever used these for their personal savings.
Their absence from South Africa did not prevent the National Prosecuting Authority from pressing charges against Mr Bobroff and his father. However, this had not happened.
Mr Bobroff referred to allegations made in the South African Jewish report critical of Mr Bobroff and the firm as ludicrous and wholly without substance. The false allegations made against them by elements of South Africa's criminal justice system was evidence that the South African system was corrupt.
The practice auditor Mr Andrew Fischer had rebutted the allegation that the practice had avoided the payment of tax.
It was dangerous to rely on articles in the press written by Mr Tony Beamish who had been hired by Discovery to wage a relentless media war against their practice and the Law Society Council.
Mr Bobroff referred to the threats he had received - including threats of arrest by the Hawks and of destruction of himself and his practice. Mr Bobroff's mother was arrested and detained without an arrest warrant or proper charge sheet on the instructions from the attorney for Discovery. His concern for his family had led to him and his father leaving South Africa prior to the completion of proceedings against them.
Mr Bobroff stated that persons they had hired to investigate the theft of documents from their practice had been harassed and victimised by South African law enforcement services the Hawks and NPA.
Mr Bobroff said that he, his father and the family had left South Africa lawfully. They had been unable to return because of concerns for their safety.
The allegations that they had entered into multiple fee agreements with their clients was incorrect. The Law Society had issued an advisory urging its members to enter into alternative fee agreements with their clients in a context where the common law contingency fee agreement was subject to proceedings for its validity. It was only in the circumstances that the practice's common law contingency fee agreement were to be held invalid that the client would be charged fees in accordance with alternative fee agreements the client had signed.
[15]
Mr Bobroff's response to the striking off decision of Ranchod J
Mr Bobroff provided a lengthy written submission dealing with the reasons for decision of Ranchod J in the South African High Court to strike himself and his father off the roll of legal practitioners in South Africa. After the judgement they immediately instructed representatives to lodge an appeal. However, they received the reasons for the decision seven months later. By this time their funds had been depleted after a seven-year battle. They intend to appeal once they are in funds again. They had sought an adjournment of the strike off proceedings which was refused and hence they were denied the opportunity to be heard. The Law Society did not reveal in the proceedings that the Bobroff's had previously filed materials rebutting all of the material against them. The proceedings had relied on the evidence of witnesses who had stolen documents from the firm. They had not been provided with some of the documentary material in the matter.
Mr Bobroff considered that the court that had struck them off did not have the background before it of Discovery's vendetta against them. He objected to the fact of contingency fee agreements being used against them as these had been heavily promoted by the Law Society in previous times.
[16]
Response to specific matters in Ranchod J's striking off judgment
[17]
Failure to engage representation
Mr Bobroff responded to criticism that he had not instructed attorneys in the striking off application. He said it was difficult as many attorneys were scared off from acting for the Bobroffs and by this stage their funds had been depleted. The income of the practice had been ceased after the Curator was appointed. It was much later that they obtained the assistance of attorney Cameron who sought an adjournment. Attorney Cameron had a forensic auditor lined up to deal with the report prepared for the Law Society by Reddy - so they had not dealt with the matters in Reddy's report themselves. The Law Society had told them that they would have an opportunity to address this in disciplinary proceedings. They did not get a hearing before the Law Society's disciplinary committee and therefore did not have the opportunity to contradict the evidence against them.
[18]
Delay and frustration tactics
They had been accused of delay and frustration tactics. The applications to strike him off had been brought by the Grahams and Discovery - not by the Law Society. Therefore, it was not the case that they were not cooperating with their regulatory body. They were entitled to exercise their rights in law. Delays in the proceedings had been caused by the Law Society, Discovery and the Grahams.
[19]
Refusal to give access to firm records
Mr Bobroff defended his firm's provision of limited access to practice records based on the interpretation of orders made by the High Court. It had been up to the Law Society to organise inspection of their records. Mr Bobroff noted that judgements had ignored the role of their partner Mr Bezuidenhout, focussing on himself and his father. They had relied on advice from their legal advisers in how they had conducted the proceedings.
[20]
Overreaching
The allegations of overreaching their clients were incorrect. They had been caught up in the uncertainty concerning the contingency fees act. It had been necessary to have alternative arrangements in relation to payment if the contingency fees agreements had been struck down.
[21]
The Pombo matter
In the Pombo matter the allegations against him had been fabricated. They had also been caused by the negligence of their bookkeeper.
[22]
Tax evasion
Mr Bobroff denied that they had evaded VAT and income tax. The report of the chartered public accountant Mr Andrew Fischer had rebutted the allegations made by Mr Reddy, the Law Society auditor.
He and his father had thought that they would get an opportunity before the Law Society disciplinary committee to defend themselves and counter the allegations against them. They had not provided certain evidence to the courts on advice from their advisers - perhaps mistakenly.
[23]
The role of the Tribunal
The Tribunal is to decide what the "correct and preferable decision" is having regard to the relevant factual material and applicable law (s. 63(1) Administrative Decisions Review Act 1997 (NSW)). This is a review on the merits of the case on the material produced at the hearing: YG & GG v. Minister for Community Services [2002] NSWCA 247 at [25] per Hodgson J (with whom Foster and Brownie JJA agreed) and Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 at [8] per full Court Beazley P, and Meagher and Emmett JJA.
[24]
Standard of Proof
This Tribunal adopts the standard of proof set out in section 140 of the Evidence Act 1995 NSW:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
The judgments of the High Court in South Africa made findings against both Mr Darren Bobroff and Mr Ronald Bobroff. These judgments largely do not distinguish between the individual conduct of Darren and Ronald Bobroff. In his submissions Darren Bobroff did not seek to minimise his role in relation to these joint findings about himself and his father. He did however allege that he had been singled out by the courts and in media attention.
Ranchod J stated at paragraph [115] that "the court must determine whether the offending conduct has been established on a preponderance of probabilities, which is a factual enquiry." This Tribunal is satisfied that this meets the requirements of "the balance of probabilities."
The Tribunal accepts as fact that there have been findings against Mr Darren Bobroff in proceedings in South African courts. One of those decisions is the decision to strike Mr Darren Bobroff (and his father) from the roll of legal practitioners in South Africa. This decision has not been appealed. The Tribunal understands that this decision remains, and that Mr Bobroff has not had his name restored to the roll.
Mr Bobroff submitted that the Tribunal should go behind these decisions on the understanding that they were prompted by a vendetta against him in circumstances of media vilification and corrupt governance systems in South Africa.
The Tribunal was presented with media articles critical of Mr Bobroff. The Tribunal gives no weight to the allegations contained in these articles as they were not tested before the Tribunal.
The Tribunal was also advised that defamation proceedings have been instituted against Mr Bobroff. The details of these proceedings were not canvassed before the Tribunal. The Tribunal gives no weight to the fact that defamation proceedings may have been instituted against Mr Bobroff in its consideration of his fitness and propriety.
[25]
Findings of Ranchod J.
This Tribunal adopts the following findings about the Bobroffs' conduct set out in Ranchod J's decision.
At paragraph [36] Ranchod J noted that on 17 March 2015, Matojane J held that the Bobroffs were in contempt of court for their failure to comply with aspect of a previous order made by Mothle J in the matter of Graham v Law Society NP 2014(4) SA 229 (GP)
In reaching her decision, Matojane J had stated:
"It would seem that this is a deliberate strategy which is employed by the Bobroffs to delay as long as they can the investigation of their financial affairs in the face of serious allegations of impropriety that are being made against them.
The Respondents are no ordinary litigants, they are senior officers of this court who are duty-bound to ensure that court orders are complied with instead of abusing the leave to appeal processes in a transparent attempt to delay an inspection and investigation of their practice's financial affairs. Such conduct in my view calls for sanction in order to vindicate the legal profession and further this court's inherent disciplinary oversight of its officers." See Graham and Another v Ronald Bobroff and Partners and Another (5203/2015)[2015]ZAGPPHC 126
At paragraph 52, Ranchod J stated
"The matters of Vivian, De La Guerre and Motara provide, in my view, clear examples of overreaching."
At paragraph 92, Ranchod J stated
"Until March 2011, monies received were held in the trust bank account and fees were seldom debited. The firm issued cash cheques for fictitious disbursements to enable the partners to take money from the practice. This no doubt amounts to tax evasion."
This Tribunal is satisfied that the judgement of Ranchod J resulted in Mr Bobroff being struck from the Roll of Legal Practitioners as not fit and proper. The Orders of the Court made on 24 March 2016 (the Judgement of Makgoka) including the appointment of a Curator Bonis to his law firm, were confirmed. Accordingly, a final Order is in place.
[26]
Res Judicata
The Respondent submitted that the various judgements of the High Court of South Africa in respect of Mr Bobroff must stand as being accurate. The judgements were final and conclusive as to the merits and any issues of fact had been judicially determined. To seek to go behind them or refute their accuracy offended the principle of Res Judicata.
The Respondent objected to the admission of Mr Bobroff's document entitled "Response to the default striking judgement by Ranchod J " and its associated annexures. Mr Bobroff was effectively:
Seeking to challenge the findings of Ranchod J. This is not the jurisdiction for that challenge; and
Seeking to introduce evidence that the Respondent cannot challenge; and
Is circumventing due process and principles of natural justice by re-litigating matters to which the Respondent cannot reply.
The Respondent objected to any evidence that sought to either (a) challenge the Orders in South Africa and/or (b) look behind the reasons for those Orders.
Mr Bobroff referred to the decision of the Australian High Court in the matter of Ramsay Health Care Australia Pty Ltd v Adrian John Compton [2017] HCA 28 (Ramsay). This matter concerned the circumstances in which a bankruptcy court may "go behind" a judgement to be satisfied that the debt relied upon by the petitioning creditor is truly owing. A majority of the High Court held that where a creditor's petition is based upon a judgement debt which resulted from a contested hearing, yet there are substantial reasons for questioning whether behind that judgement there was in truth and reality a debt due to the petitioner, the bankruptcy court has a discretion to "go behind" the judgement to investigate whether the debt relied upon is truly owing. The majority of the High Court stated that first, the fact that the judgement was obtained without collusion or fraud after a contested hearing does not preclude the possibility of there being sufficient reason for questioning the underlying debt; and second, that "miscarriage of justice" is not limited to cases where the judgement is so tainted that it may be set aside. Section 52(1) of the Bankruptcy Act 1966 (Cth) imposes an obligation on the bankruptcy court to be satisfied that the debt on which the petitioning creditor relies, is still owing. In the matter the High Court determined that the lower court was correct to conclude that the bankruptcy court should proceed to investigate the question of whether the debt relied upon was owing.
The Tribunal understood Mr Bobroff's argument to be that it was not necessary for him to show that the decisions of the South African courts had been obtained through collusion or fraud and that the term miscarriage of justice should be interpreted in his case with the broader meaning. He invited the Tribunal to examine whether the findings of the South African courts should be relied upon as valid findings.
The Tribunal notes that the High Court's decision focused on section 52(1) of the Bankruptcy Act 1966 (Cth) which imposes an obligation on the bankruptcy court to be satisfied that the debt on which the petitioning creditor relied was still owing. The Tribunal is satisfied that this is a different issue to that which this Tribunal needed to determine. The matter before the Tribunal did not turn on a single issue of whether a striking from the roll of legal practitioners still applied or was valid. Even if the Tribunal were to determine to reject the South African Court's decision to strike Mr Bobroff from the roll of legal practitioners, there were other issues before the Tribunal such as Mr Bobroff's relationship with clients, his approach to the regulatory body and the litigation process which prompted the Respondent to determine Mr Bobroff was not fit and proper to be licensed as a real estate agent.
As set out, the Tribunal distinguishes the circumstances of the Ramsay matter from those of Mr Bobroff. Further, the Tribunal did not have before it the parties to the findings of the South African courts. The Tribunal is satisfied that it should not overturn the findings in relation to Mr Bobroff's conduct made by Ranchod J, nor the decisions that he was not fit and proper and that his name should be taken from the roll of Legal Practitioners. The Tribunal had the opportunity to hear Mr Bobroff's views - but not those of the Law Society in South Africa. The appropriate step to change these findings would have been for Mr Bobroff to appeal the decision. He has not done this.
[27]
Fit and Proper
The expression "fit and proper" has been considered in a number of cases, the leading one being Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127. In that case the characteristics of fitness and propriety were said to be "knowledge, honesty and ability". In this matter, Mr Bobroff's honesty and his ability to act fairly and openly with consumers are in issue.
In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:
"In my opinion what is meant by that expression is that (the Applicant) must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence...but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public...as a person to be entrusted with the sort of work which the licence entails."
The Tribunal has frequently cited the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of "a fit and proper person". In that case Toohey and Gaudron JJ stated (at page 380):
"The expression "a fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question."
This passage highlights the importance of public perception and the practitioner's standing as a respected member of the community. Their Honours further stated at page 388:
"The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person whose fitness and propriety are under consideration."
In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12 the Tribunal stated that the attestation to an Applicant being a fit and proper person must be positive and not simply a failure of the case against the practitioner to meet a reasonable doubt.
This Tribunal's synthesis of the requirements set out in the case law is that Mr Bobroff's fitness and propriety must be determined in the light of the role as a real estate agent. The Tribunal must consider all the evidence before it about Mr Bobroff's knowledge, honesty and ability as it relates to being a real estate agent. It is a determination to be made taking into account and weighing up matters both contrary to and in favour of Mr Bobroff .
The Respondent made submissions about the nature of the responsibilities of a Real estate agent. The Tribunal accepts the Respondent's characterisation. Real Estate Agents do much of their work alone and with a high degree of autonomy. They are dealing with a complex market environment and are routinely dealing with assets of great monetary value. A real estate agent carries on a business which includes real estate transactions, negotiating with a view to induce any person to enter into or to make or accept an offer to enter into, a real estate transaction, for the introduction of a prospective purchaser, lessee or licensee of land to another agent or to the owner, or the agent of the owner, collecting rents payable in respect of any lease of land and for any other activity in connection with land.
Significantly, the business of a real estate agent involves the exchange of large sums of money to be held on trust. It follows that there is a significant amount of trust and reliance to be placed upon a Real Estate Agent. Not only must she/he be a person of utmost good faith and character, but she/he must have a reputation of equal standing.
The Real Estate industry is such that reputation is a matter that consumers would rely upon. Such consumers would look upon the Respondent to licence only those people they would feel confident in dealing with. The Tribunal is satisfied that consumers would not have this confidence in light of the evidence before the Tribunal.
The Tribunal accepts that Mr Bobroff was entitled to challenge the actions against him through the courts. However, the Tribunal also notes the comments of Matojane J and Ranchod J about the manner in which Mr Bobroff challenged these actions. This includes being held in contempt of court and having punitive costs ordered because of evasive delay tactics "to avoid and frustrate scrutiny". This is not consistent with the responsibilities of a legal practitioner as an officer of the court. The Tribunal accepts the Respondent's submission that the manner in which Mr Bobroff dealt with complaints into his conduct does not demonstrate sufficient moral integrity and is not consistent with the purpose of the regulatory regime relevant to the practice of a Real Estate Agent. The Tribunal is satisfied that consumers would also be concerned about Mr Bobroff's approach to the consumer protective licensing and regulatory system for professionals. See Boumelis v Building Services Corporation, Commercial Tribunal of New South Wales, unreported 9 June 1995
[28]
Fitness and Propriety - References
The Tribunal is required to consider all the circumstances when assessing fitness and propriety. The Tribunal accepts that others, properly informed of allegations and findings against a person, may offer a different assessment of the person's character. Mr Bobroff supplied a number of references in support of his application. There is an unsigned reference from Dr Peter Cashman addressing the character of Ronald Bobroff, Mr Bobroff's father. This does not assist the Tribunal in assessing Mr Darren Bobroff's fitness and propriety.
Professor Gordon Elkington provided a written reference and gave evidence in the hearing. Professor Elkington stated that he was a member of the Legal Qualifications Committee of the Law Extension Committee and was involved in the assessment of qualifications of overseas lawyers - including those of Mr Bobroff. In this capacity he became acquainted with Mr Bobroff. Professor Elkington commented on the existence of corruption in South African governance.
The third reference from Dr Owen Samuels, a Consultant Psychiatrist and Clinical Director for Northern Sydney Local Health District, appears to have been written for the purpose of Mr Bobroff applying for a renewal of his practising certificate with the New South Wales Law Society.
In Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and the Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Tribunal found that testimonials only provided real value when they disclosed a full knowledge in the referee of the matters against the Applicant. The Tribunal notes that there was scant description in the references by the referees of what actually occurred as result of the court proceedings in relation to Darren Bobroff.
The Tribunal is not assisted by these references to counter the implications of the findings made in South African High Court against Mr Bobroff and the decision to strike him from the roll of legal practitioners.
[29]
Reformation of Character
The mere passage of time since the wrong act is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. In determining that the practitioner was not a fit and proper person, the court said:
"Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man."
Mr Bobroff did not accept that he had been involved in any wrongful conduct. He did not present evidence concerning reformation of character.
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal set out factors for consideration by a decision maker concerning cancellation of an authority and how a practitioner might demonstrate changed character and reputation. Those considerations are:
"the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the Applicant;
the Applicant's driving record;
the Applicant's reputation in the community; and
the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences."
In assessing the last factor, the following considerations are relevant:
• the length of time since the offences were committed and the circumstances in which they were committed;
• whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse;
• the efforts the Applicant has made to rehabilitate himself or herself during that time;
• any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.
[30]
Conclusion
The Tribunal is satisfied that Mr Bobroff lacks the requisite honesty and integrity to be a licensed real estate agent in NSW. This is based on:
1. The fact he is not fit and proper to be on the Roll of Attorneys in South Africa;
2. contempt orders for wilfully and with mala fide not complying with a Court order;
3. findings that he deliberately evaded service to frustrate a strike-off application, found to be "mala fide in the extreme"; and
4. disregard for consumer protection and professional standards inherent in these actions.
[31]
Decision and Orders
1. The decision of the Respondent to refuse Mr Bobroff's application for licence as a real estate agent in NSW is affirmed.
2. The Application is dismissed.
[32]
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: 14 August 2019