Director General, Department of Finance & Services v Porter - [2014] NSWCATAP 6 - NSWCATAP 2014 case summary — Zoe

NSWNSWCATAP

Director General, Department of Finance & Services v Porter

[2014] NSWCATAP 6

NCAT Appeal Panel|2014-02-20|Before: Wright J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2014-02-20

Before

Wright J

Catchwords

REAL ESTATE AGENTS - fit and proper person test - whether failure to take into account a relevant consideration - discretion as to disciplinary action

Source

Original judgment source is linked above.

Catchwords

REAL ESTATE AGENTS - fit and proper person test - whether failure to take into account a relevant consideration - discretion as to disciplinary action

Judgment (15 paragraphs)

[1]

Background 7In January 2005 the respondent first obtained a real estate agent's license and then in December 2007 became a director of the family held company, PMD Central Coast Pty Ltd (PMD). In November 2009 a manager was appointed to PMD and later at some point in 2010 the respondent withdrew from all involvement with PMD. 8On 23 August 2012 the appellant decided, under s 192 of the Property, Stock and Business Agents Act 2002 (NSW) (the PSBA Act), to: (1)Cancel the real estate licence of Mrs Porter, the respondent, on the basis that she was not a fit and proper person to hold such a licence; (2)Declare that the respondent be a disqualified person until 20 April 2014; and (3)Disqualify Mrs Porter from being involved in the "direction, management and conduct of a business of a licensee" until 20 April 2014. 9The respondent applied to the ADT to have this decision set aside.

[2]

Decision at First Instance 10In its decision the Tribunal concluded that: (1)The respondent resigned as a director of PMD on 14 January 2010 shortly after discovering her brother's mismanagement of the company finances and therefore was not a disqualified person under the PSBA Act, s 16 (1A)(d); (2)It was due to an administrative error, without any dishonesty or intention on the part of the respondent, that rent monies were paid into the company operating account and not the trust account as required under s 86 and cl 21 of the Regulations between 27 April 2011 and 14 June 2011, and the error was corrected without any disadvantage; (3)The respondent did not intentionally breach s 43 by employing her mother, Mrs Campbell, for while she was aware that she was not permitted to employ her as a real estate agent she believed that she was able to employ her in an administrative capacity since the appointed Manager of PMD had employed Mrs Campbell as a book keeper while she was a disqualified person; and (4)The evidence did not support the conclusion that the respondent was in breach of s 137 when she acted to acquire the rent roll of Coastwide Pty Ltd. 11As to the correct and preferable decision the Tribunal held: (1)Having considered the principles relating to fitness and propriety, the respondent should not have her license cancelled on the basis that she was not a fit and proper person to hold a license; (2)On the evidence the respondent was not a disqualified person for the purpose of s 16 despite the administrative error made and the respondent employing Mrs Campbell in contravention of s 43. Her actions were not sufficient to warrant disqualification from being involved in the direction, management and conduct of the business of a licensee; and (3)The more appropriate action would be a caution or reprimand of the respondent however in the circumstances that her license was cancelled for the period of 23 August 2012 to 6 September 2012 (when a stay of proceedings was granted), no further action should be taken and the earlier decision set aside.

[5]

The "fit and proper person" issue at first instance 14One issue which the Tribunal was required to consider was whether disciplinary action by way of cancelling the respondent's real estate licence under s 192(g) of the PSBA should be taken against the respondent. This involved consideration of whether the respondent was "not a fit and proper person" within s 191(e) of the Act. 15The effect of the appellant's relevant contentions at first instance (see [14] and [15]) was that cancellation of the licence was justified because: (1)the respondent was a "disqualified person" under s 16(1A)(d) of the PSBA Act; (2)from April to December 2011,she had breached s 86 of the PSBA Act and cl 21 of the Regulation when trading as Coastwide Real Estate; (3)from March 2011 she had sought to acquire and transfer the rent roll of PMD Coastwide Real Estate contrary to the instructions of the Manager appointed to that business (this was contended to have been in breach of s 137 of the PSBA Act - see [55]); (4)she had employed a disqualified person, namely her mother, in breach of s 43 of the PSBA Act, and, "when taken together, the contentions raise a question as to whether [the respondent] is a fit and proper person under the Act to hold any authority at all". In the light of the issues raised, it was then submitted that the appellant's decision to cancel the licence the respondent's real estate agent's licence should be affirmed. 16As noted above, the Tribunal held that the respondent was not a "disqualified person" under s 16(1A)(d) of the PSBA Act (see [41]) and had not breached s 137 of the PSBA Act in seeking to acquire and transfer the rent roll of PMD Coastwide Real Estate (see [62]). Neither of these conclusions was challenged on appeal. 17As to the remaining contentions, the Tribunal concluded that the respondent had breached s 86 and cl 21 as well as s 43. Indeed, these breaches had been conceded by the respondent. In each case, however, the Tribunal found that the breach had not been intentional - see [48] and [54]. In addition, in relation to the breaches of s 86 and cl 21 the Tribunal expressly held that they "did not involve any dishonesty" (see [48]). 18It should be noted here that, although the appellant was not successful in establishing all of the contentions relied upon, the Tribunal understood that the appellant's case was still that the contraventions found were sufficient to establish that the respondent was not a fit and proper person to hold a licence. At [68], the Tribunal said: The respondent contends that Mrs Porter is not a fit and proper person to be licensed under the Act in light of :

the employment of her mother, Mrs Jennifer Campbell, at Coastwide Pty Ltd, whilst Mrs Campbell was a disqualified person under the Act;
her receipting of trust funds to the operating account of Coastwide Pty Ltd; and
her actions in acquiring the Entrance Rent Roll.

19The Tribunal's consideration of the "fit and proper person" issue was primarily found in [63] to [75] of its reasons for decision.

[8]

Consideration 26Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J). 27Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J). 28Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision. 29In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination. 30In the light of the High Court's comments in Hughes and Vale Pty Ltd v New South Wales No 2 (1955) 93 CLR 127 at 156 it can be accepted in determining this appeal that honesty, knowledge and ability are each considerations which the relevant decision maker was bound to take into account in reaching a conclusion as to whether the respondent was a fit and proper person in the context of the PSBA Act. 31As to the duty of the Tribunal to give reasons and the adequacy of those reasons, s 89 of the ADT Act provided: (1) If the Tribunal makes an original decision or determines an application for the review of a reviewable decision, the Tribunal is to cause a copy of its decision to be served on each party to the proceedings for the decision. (2) The Tribunal may give reasons either orally or in writing for its decision. (3) If the Tribunal does not give reasons in writing for its decision: (a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and (b) the Tribunal must, within 28 days after receiving the request, give the party such a statement. (4) For the purposes of compliance with subsection (3), it is sufficient if the Tribunal gives the party a copy of a transcript of oral reasons previously delivered that complies with subsection (5). (5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 32Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 33When reaching its conclusion on fitness and propriety, the Tribunal addressed in turn each of the breaches and the other relevant conduct it had found in its reasons. Thus, it is appropriate for the Appeal Panel also to consider the Tribunal's reasons in respect of each of the types of breaches in turn.

[9]

Breaches of s 86 and cl 21 34At [69] to [71], the Tribunal considered the breaches of s 86 of the PSBA Act and cl 21 of the Regulation. Those legislative provisions required moneys received for or on behalf of any person by a licensee in connection with the licensee's business to be paid into and retained in a trust account within certain limited times. At [69] the Tribunal referred back to its earlier findings and reasoning concerning the breaches of s 86 and cl 21. At [44], the Tribunal had noted the respondent's concession that tenants had deposited rental payments into the general or operating account rather than the trust account of the respondent's business. At [47] the Tribunal concluded that this was in breach of s 86 and cl 21. It was also accepted at [47], however, that this occurred because of an administrative error in that the letter sent to tenants advising them how to deposit their rental payments provided the account number for the operating account rather than for the trust account. Those numbers apparently differed only as to the last two digits (see [45]). The Tribunal also noted at [47] that once the error was discovered the moneys were transferred from the general account to the trust account but the problem was not fully resolved for 2 months. Finally, the Tribunal found at [48] that the error was corrected without any disadvantage to either the relevant landlords or tenants and did not involve any dishonesty. 35The Tribunal then held at [69] "this was not an act of dishonesty by Mrs Porter but rather an administrative error resulting in tenants wrongly depositing rent payments into the Coastwide operating account rather than the relevant trust account." Further at [70] and [71], it was said: 70. The Tribunal is concerned by the error and by the fact that it took Mrs Porter two months to fully resolve the problem. The Tribunal accepts that this does not reflect well on the applicant's account keeping skills. The Tribunal is satisfied, however, that once the error was discovered all monies were accounted for and deposited into the relevant trust account. 71. The Tribunal is not satisfied, however, that this error alone would warrant the cancellation of the applicant's licence [on the ground of her not being a fit and proper person - see the context provided by [68]] or her disqualification from being involved in the direction, management and conduct of a business of a licensee. 36It is true that the Tribunal did not use the words "knowledge" or "ability" when reaching its conclusions on fitness and propriety in this regard. It does not follow from this, however, that these matters were not relevantly considered. 37As to knowledge, nothing in the circumstances in which the breaches of s 86 and cl 21 occurred suggested that there was any lack of relevant knowledge on the part of the respondent that would have rendered her not a fit and proper person. The Tribunal's finding was that the breaches were the result of administrative error not of defective knowledge on the part of the respondent. In addition, the case that was put against the respondent does not appear to have been that she breached s 86 and cl 21 because she did not know what was required of her under the PSBA Act and the Regulation. Accordingly, in these circumstances, there was no requirement for the Tribunal to address the consideration of knowledge expressly or specifically in reaching its conclusion as to fitness and propriety. Implicitly, the Tribunal proceeded on the basis that any lack of fitness or propriety was not based on lack of knowledge in this case. Such an approach should not be criticised in the circumstances. 38As to ability, as has been noted above, the Tribunal did turn its mind to the fact that the breaches did "not reflect well on the [respondent's] administrative skills" ([47]) and reflected "poorly on Mrs Porter's organisational and accounting skills" ([48]). The fact that the respondent's error did not reflect well on her account keeping skills and the length of time taken to resolved the problem were again considered specifically in [70] and [71] (which have been quoted above). Nonetheless, the Tribunal concluded that the error made in relation to the bank account numbers would not warrant cancellation of the respondent's licence on the ground that she was not a fit and proper person. 39The Appeal Panel is satisfied that by referring to these administrative, organisational and accounting skills in this way the Tribunal gave genuine, proper and realistic consideration to the respondent's ability as it was relevant to fitness and propriety in the context of the PSBA Act and as it was relevant to the breaches found by the Tribunal.

[10]

Breach of s 43 40The breach of s 43 of the PSBA Act was dealt with by the Tribunal at [49] to [54] and again, in relation to consideration of the respondent's fitness and propriety at [72] and [73]. 41Section 43 provided: (1) A licensee must not employ a person in any capacity in connection with the carrying on of the business conducted by the licensee if the person: (a) is a disqualified person (other than a person whose disqualification is on a ground that does not disqualify the person from eligibility to hold a certificate of registration), or ... Maximum penalty: 50 penalty units. (2) It is a defence to a prosecution for an offence under this section if the licensee establishes that the licensee did not know, and could not reasonably be expected to have known after diligent inquiry, that the person was a person whose employment by the licensee was prohibited by this section. 42At [50], the Tribunal noted that the respondent did not dispute that in 2012 she had employed her mother in her real estate business and that at this time her mother was a disqualified person and, at [53], concluded that this was a breach of s 43. 43The Tribunal referred at [51] and [52] to the evidence given by the respondent and a Mr Rick Porter (no relation of the respondent) concerning how the breach occurred. At [53], the Tribunal says that it accepted the respondent's evidence that she was aware that she was not permitted to employ her mother as a real estate agent but believed she was allowed to employ her in an administrative capacity. It was also satisfied that the respondent, in reaching this belief, was influenced by the fact that Mr Porter, who had been appointed by the appellant to manage the business on 11 November 2009 under s 126(1)(b) of the PSBA Act, had employed the respondent's mother as a bookkeeper, apparently with the approval of the appellant, despite the fact that she was a disqualified person at that time as well. Although the Tribunal found that s 43 had been breached, it concluded that the respondent's actions were not an intentional breach (at [54]). 44When considering the respondent's fitness and propriety in the light of the breach of s 43 at [72] and [73], the Tribunal repeated its earlier findings and noted that once the respondent was advised that she was not allowed to employ a disqualified person such as her mother she no longer did so (at [72]). 45The Tribunal then, at [73], noted that the contravention of s 43 was inadvertent and concluded: Taking into account all the circumstances as outlined above, the Tribunal finds that Mrs Porter's contravention of s43 of the Act does not sufficiently impact upon her fitness and propriety to hold a real estate licence as to warrant either the cancellation of her licence or her disqualification from being involved in the direction, management and conduct of a business of a licensee. 46The Tribunal's findings in relation to the s 43 breach mean that the respondent's honesty was not in question nor did the circumstances raise any question of lack of ability. Thus, although honesty and ability were required to be taken into account in a general sense in assessing fitness and propriety, in the specific circumstances of this breach, they had no substantive role to play in the making of that assessment. Thus, it should not be found that there was any failure to take into account any relevant considerations in this regard. 47As to knowledge, it was implicit in the Tribunal's findings that the respondent's knowledge of the law was not totally lacking in that she knew that she could not employ a disqualified person as a real estate agent. Furthermore, she was influenced in believing that she could employ her mother in an administrative capacity by the fact that her mother had been employed in such a role by a manager appointed to the business by the appellant. The Tribunal had regard to these matters and concluded in [73] that the s 43 breach did not "sufficiently impact upon her fitness and propriety to hold a real estate licence as to warrant ... cancellation ... or ... disqualification". Taking the Tribunal's reasons in this regard as a whole, the Appeal Panel is satisfied that the Tribunal gave genuine, proper and realistic consideration as to how the breach of s 43 reflected upon the respondent's knowledge as relevant to her fitness and propriety. Thus, there was no failure to take into account this consideration. Further, the Panel is of the view that the Tribunal's reasons disclose that it sufficiently considered the evidence, made findings of fact, expounded its understanding of the law and exposed its reasoning process in this regard.

[11]

The Respondent's Actions in acquiring the Entrance Rent Roll 48The respondent's actions in attempting to acquire the rent roll of the business in respect of which Mr Porter had been appointed manager under s 126 (which was referred to by the Tribunal as the Entrance Rent Roll) were dealt with by the Tribunal at [55] to [62] and again, in relation to consideration of the respondent's fitness and propriety at [74]. 49In this regard, it had been contended by the appellant that the respondent had breached s 137 of the PSBA Act by her conduct in attempting to acquire the Entrance Rent Roll. Section 137 provided: A person must not hinder, obstruct or delay a manager in the exercise of his or her functions under this Division. 50This contention was not accepted by the Tribunal. The Tribunal's consideration of the evidence and findings are found at [56] to [61] and again at [74]. In summary, the respondent admitted that she took steps to acquire the Entrance Rent Roll by asking tenants who had already signed management agreements with the business of which Mr Porter was the manager under the PSBA Act to sign such agreements with her or her company. The Tribunal accepted that the respondent had been initially encouraged by Mr Porter to acquire the Entrance Rent Roll in this way. Subsequently, on his appointment as receiver of the business of which he had been manager, Mr Porter told the respondent not to seek any further management agreements and to transfer into the business's trust account moneys received from tenants who had earlier signed management agreement with the respondent or her company. The respondent followed this instruction. She did not benefit from those actions in relation to the Entrance Rent Roll. The Tribunal did not accept that the conduct amounted to a breach of s 137. Further, at [75] the Tribunal concluded that the respondent had not by her actions in relation to the Entrance Rent Roll acted "in a way that has any bearing on her fitness and propriety to hold a real estate licence". 51Given the findings and reasoning of the Tribunal which preceded this last conclusion, the Appeal Panel is satisfied, once again, that implicit in that conclusion is a consideration of each of the elements of honesty, knowledge and ability to the extent that they were raised by the conduct in relation to the Entrance Rent Roll. In the circumstances as found by the Tribunal, there was no reason to question to any significant degree the respondent's honesty, knowledge or ability. Thus, it was appropriate and sufficient for the Tribunal to record its consideration of fitness and propriety in the context in the wrapped up form quoted in the preceding paragraph.

[12]

Conclusion on the First Ground of Appeal 52At [75] the Tribunal stated its general conclusion based upon all of the conduct which it took into account in the following terms: On the basis of the evidence before it, the Tribunal finds that whilst the applicant has been responsible for administrative errors in the conducting of her business, the Tribunal is not satisfied that she has behaved dishonestly in the conduct of her business. On the evidence before it, and despite the finding of administrative error on the part of Mrs Porter, the Tribunal is not satisfied that Mrs Porter's licence should be cancelled on the basis that she is not a fit and proper person to hold a licence. 53This conclusion further confirms that the Tribunal took into account not only the honesty of the respondent but also such aspects of her knowledge and ability as were raised by the administrative errors she made in the conduct of her business and by her other relevant activities. No other aspects of those three considerations were engaged by the facts and circumstances as found by the Tribunal. Accordingly, there was no requirement on the Tribunal that it should address in detail any other aspects of the respondent's honesty, knowledge or ability in its reasons. 54Furthermore, when read as a whole, the reasons did include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that led the Tribunal to the conclusions it made 55The Tribunal's consideration of the respondent's knowledge and ability as well as honesty was reflective of how the submissions were put to the Tribunal and, in our view, was adequate in the circumstances. On the bases set out above and taking the Tribunal's reasons for decision as a whole, the Appeal Panel concludes that the Tribunal did not fall into error by: (1)failing to consider adequately or at all whether the respondent possessed the requisite knowledge and ability to hold a real estate licence; or (2)failing to give adequate reasons for its decision in regard to the respondent's fitness and propriety. 56As such, the first ground of appeal is rejected.

[14]

Third Ground of Appeal: Misdirection by the Tribunal as to its discretion to take disciplinary action under the PSBA Act 62The appellant's third ground of appeal was formulated as follows: Assuming either questions 1 and 2 above [the first and second grounds of appeal] or both are answered in the affirmative; did the Tribunal misdirect itself as to the exercise of tis discretion to impose a penalty on the [respondent] under the [PSBA] Act?" 63In oral submissions, the solicitor for the appellant clarified that this ground did not raise a separate error of law and was not in effect a separate ground of appeal. Rather it was an attempt to raise the issue of whether the Tribunal's conclusions that: (1)it should take no further action under s 193 of the PSBA Act; and (2)the appellant's decision should be set aside, should be allowed to stand if the Appeal Panel concluded that the Tribunal had made an error of law. 64Mr Nicoletti make submissions on the seriousness of the conduct involved in the various breaches found by the Tribunal and invited the Appeal Panel to set aside the Tribunal's decision and cancel the respondent's licence under s 192(1)(g), declare the respondent to be disqualified for a period under s 192(1)(h) and disqualify the respondent under s 192(1)(i). 65Mr Rogers submitted that the Appeal Panel should, even if it found the errors established, decide not to take any disciplinary action under s 193 of the PSBA Act. He also made the point that it would cause unnecessary cost to remit the matter to the Tribunal for further consideration. 66The Appeal Panel has concluded that there was no error of law in the way in which the Tribunal considered the respondent's fitness and propriety. Thus, no reconsideration of the Tribunal's orders is required on this ground. 67The Tribunal's reasons at [78] indicate that the erroneous finding that the respondent's licence had been cancelled for the period from 23 August to 6 September 2012 played a significant part in the Tribunal's concluding that no further action should be taken against the respondent, as was permitted under s 193. Thus and as a result of the Panel's conclusion that the Tribunal did err in law in finding that the respondent's licence had been cancelled in August and September 2012, the Tribunal's orders need to be reconsidered. 68Given that there was no application to extend the appeal to review the merits of the decision, the Appeal Panel is not in a position to determine and take into account the relevant factual matters that might be addressed in determining what is the correct and preferable decision in the circumstances. For these reasons, the Appeal Panel is of the view that the most appropriate course is for the matter to be remitted to the Administrative and Equal Opportunity Division of NCAT in accordance with cl 13(1)(b) and (2)(e) of Schedule 1 to the Act for determination of what disciplinary action, if any, should be taken against the respondent. 69Accordingly, the Appeal Panel orders that: (1)the appeal be allowed in part; (2)the decision of the Tribunal made on 27 September 2013 be set aside; (3)the matter be remitted to the Administrative and Equal Opportunity Division for determination in accordance with these reasons. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Director General, Department of Finance & Services v Porter

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