Do v Commissioner of Fair Trading

NCAT Occupational|2016-03-30|Before: Hennessy DP

REASONS FOR DECISION

The applicant Mr Huang Thinh Do (also known as Tom Do) applied to this tribunal on 14 October 2015 for review of a decision made by the Manager Enforcement, Compliance and Enforcement Division, of New South Wales Fair Trading on 4 November 2014, to cancel his licence in accordance with s 192(1)(g) of the Property Stock and Business Agents Act 2002 (the PSBA Act), to declare him in accordance with s 192(1)(h) to be a disqualified person for the purposes of that Act until 12 June 2024, and in accordance with s 192(1)(i) of that Act, to disqualify him from being involved in the management, direction or conduct of the business of a licensee under the Act until 12 June 2024.
The applicant applied to the respondent on 16 September 2015 for an internal review of its determination of 4 November 2014. As under s 53(2)(d) of the Administrative Decisions Tribunal Act 1997 (ADT Act) applications for internal review had to be lodged within 28 days after the applicant was notified of the making of the reviewable decision, that application was some 10 months out of time. The respondent by letter dated 1 October 2015 declined to grant additional time to the applicant to seek an internal review and dismissed the application.
Under cl 23(3) of the Civil and Administrative Tribunal Rules 2014 an application to the tribunal for review must also be lodged within 28 days. At a preliminary hearing on 15 March 2016 before Hennessy DP the matter was listed for 30 March for a preliminary hearing on the issue of whether an extension of time for the lodgement of the review application to the tribunal under s 41 of the CAT Act should be granted.

Applicable legislation

The provision governing extensions of time for applications before the tribunal and other matters is thus s 41 of the CAT Act. Section 41(1) provides that "The Tribunal may, of its own motion or on application by any person, extend the period of time or the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation". Such an application may be made even though the relevant time period has expired: s 41(2).
The Property, Stock and Business Agents Act 2002 (PSBA Act) s 14 provides as follows: 14 Eligibility for licence or certificate of registration (1) A natural person is eligible to hold a licence only if the Director-General is satisfied that the person: (a) is at least 18 years of age, and (b) is a fit and proper person to hold a licence and each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (c) has the qualifications required for the issue of the licence, and (d) is not a disqualified person, and (e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence. (2) A corporation is eligible to hold a corporation licence only if the Director-General is satisfied that: (a) the corporation is a fit and proper person to hold a licence, and (b) each director of the corporation is a fit and proper person to hold a licence, and (c) the corporation, and each officer (within the meaning of the Corporations Act) of the corporation, is not a disqualified person, and (d) at least one of the directors of the corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on, and (e) the corporation has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence. (3) A person is eligible to hold a certificate of registration only if the Director-General is satisfied that the person: (a) is an individual who is at least 16 years of age, and (b) is a fit and proper person to hold a certificate of registration, and (c) has the qualifications required for the issue of a certificate of registration of the type concerned, and (d) is not a disqualified person. Note. The grounds of disqualification in section 16 (1A) do not disqualify a person from eligibility to hold a certificate of registration. (4) The requirement that at least one of the directors of a corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on does not require a director to be accredited as an auctioneer under section 21 merely because the corporation carries on or proposes to carry on the business of an auctioneer.
Disqualified persons are dealt with by s 16. Under s 16(1)(a), a person is a disqualified person for the purposes of the Act if the person "(a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General as determined under subsection (2) that the offence should be ignored". Subsection (2) states that "The Director-General may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence".
The issue in this case is thus whether the time for filing an application for review with the tribunal should be extended pursuant to s 41 of the CAT Act in accordance with the principles established for the exercise of that power.

Applicant's evidence

At the hearing on 15 March, the applicant had relied on his affidavit sworn on 3 February 2016 (exhibit A1). At the 30 March hearing, the applicant replaced that with a further affidavit, dated 30 March 2016 (exhibit A1A), in which he amended his earlier affidavit, saying that since swearing it he had become aware that he had made errors in it and wished to amend them. He had not realized his mistakes at the time of swearing the affidavit.
In his affidavit of 30 March, the applicant stated that he entered custody following sentence on 13 June 2014, with an earliest release date of 6 September 2015, and on 13 June 2014 was incarcerated at St Helier Correctional Centre (Muswellbrook). In or about September 2013, before going into custody, he contacted the law firm of AKN & Associates which had acted for him in his criminal matters and spoke with Michael Pham, the brother of Ms Mai Pham, who was the senior solicitor in that firm. Mr Pham introduced himself as "a lawyer and Mai's brother" and said she had asked him to look after his case involving the Department of Fair Trading, explaining that Mai was too busy. He said he had read the letter from the department and asked them for an extension of time "for us to respond". Explaining that he was not too familiar with the area of law involved, he said he would need to do some research and would get back to the department for the applicant.
The applicant then said he was a little worried that the matter would not be completed in time. He needed AKN to ensure that they supplied the department with whatever they required, as working in real estate was his only income for his family. Mr Pham had replied that it was under control.
Approximately six weeks later he attempted to contact Michael Pham at AKN to get an update about the matter. He had been calling them on a regular basis for an extended period of time, and on each occasion would ask the receptionist if he could speak to Michael but was told that he would need to leave a message. Mr Pham at no time returned his call. About two weeks later, the applicant and his mother attended at Mai Pham's office and met with her. He had said that he needed her to look after the matter for him and she had replied that she would see what she could do for him.
In or around March 2014, he telephoned AKN and spoke to Mai Pham, asking her if the Department of Fair Trading had confirmed that they were satisfied with the show cause explanation. He said he assumed that Michael had sent them something, because he had not heard from him. Ms Pham replied that Michael was dealing with the matter and she was not aware of what stage he had reached. The applicant had replied that it was ridiculous, that he could not call the department to ask what was going on. He needed his licence but no one would return his calls from their office, and Ms Pham did not even know what was going on.
At the date of his sentencing in June 2014 he was represented by Mai Pham of AKN. He understood that Ms Pham primarily practices in criminal law, and it was on that basis that he had engaged her to represent him in his criminal proceedings in Parramatta District Court. A few weeks after he had been incarcerated, she had visited him in custody, saying that she needed him to sign some documents for the criminal matter. She also said "I have also received a letter from the Department of Fair Trading about a notice to show cause". When he asked what that meant, as he had received nothing from the department, she explained that it meant that the department was considering taking disciplinary action against him for various breaches of his obligations as a director of the real estate practice.
He had then said he was worried as this was very serious. He asked her to look after it for him and make sure it was under control. He was stuck in jail, and was unable to make or receive telephone calls. She had said that she would handle it.
While in custody he experienced difficulty adjusting to his new environment and suffered from anxiety, finding it difficult to concentrate on his matters with the Department of Fair Trading. He believed, as he had not heard from Michael Pham at AKN, that the matter was being handled in accordance with his instructions to them. In or about October 2014, he became concerned that no one at AKN had updated him on the progress of his matter with the department and consequently decided to call the department himself. During that time, he called the general information line, and was told that the matter had been allocated to Anne McManus. He could not leave a message on her voicemail, however, as he could not be called back on a contact number while in jail.
At that time he was unaware as to whether his lawyer had even contacted the department to discuss the show cause notice with them. He therefore wrote direct to Ms McManus at the department on 27 October 2014. On or about 11 November 2014, while in custody, he received a letter addressed to him by the department, which appeared to enclose a determination notice. He became extremely anxious, as the letter stated that the determination would take effect within fourteen days. There was also some legislative material attached, which he did not read. After reading the determination he was shocked that he had been disqualified until 2024. He immediately made an appointment to see the welfare officer at St Helier, as he wanted to contact the officer with carriage of his matter, Mr Rod Kammel. After a two-week wait, he saw the welfare officer and was permitted to make a phone call to the department. After he explained his predicament, Mr Kammel suggested he write a letter to the department, by hand if necessary, setting out his reasons why disciplinary action should not be taken against him. He should also state whether he wished to have an internal review of the decision.
A few days later he sent a letter to the department to that effect. At that time he believed his matter would be stayed until he was released from custody, and assumed that the department would not finalize the determination until then. In April 2015 he was assaulted while at St Helier and required treatment from the local doctor. He was then transferred to Parklea Correctional Centre and is unaware whether the department sent any additional material to him at St Helier after his transfer. He was released from custody on 6 September 2015.
On 16 September 2015, he telephoned and emailed the department. He explained to Mr Kammel that he wanted to speak about his matter because he needed his licence. Mr Kammel told him that the department had written to him on 4 November 2014 and put him on notice that a determination had been made to cancel his licence. If he wished to challenge that decision, he would need to seek an internal review. The applicant agreed, but added that while in custody it was very hard to contact the department and that his lawyer had not seen or spoken to him for over a year. On that day he emailed Mr Kammel at the department seeking an internal review. On or about 1 October 2015, he received a response from the department (exhibit R5, p 3) refusing his application for an internal review. He therefore applied for a review to this tribunal on 17 October 2015.
Since his release from custody he has found it very difficult to obtain employment because of his record. He has a limited history of working in factories, but his main employment skills are based on his real estate experience. He is married with two children and his wife is currently the sole income earner. They are finding it difficult to live on the one income. On occasion he obtains casual work in a factory, but it is not regular or sufficient to support the household.
He stated that if he is permitted to work in real estate again, he would comply with any restrictions that might be imposed on him by the tribunal. He deeply regrets his previous decision to become involved in criminal activity. His decisions have impacted on his family and adversely affected his children. He had paid the fines associated with Home Centre Realty Pty Ltd trading without a corporation licence and would ensure that this never happened again.
In cross-examination the applicant said that Michael Pham had said he was a lawyer. As he was working in the law office, Mr Do thought he was. Exhibit A1A para 5 was not incorrect, he believed it was accurate although he did not know what had been said. Asked why, in that case, he had reproduced the conversation in his affidavit, he replied that he had talked to Mr Pham, who had given him a card. He disagreed with Mai Pham's statement in exhibit R2 that the firm was not representing him in connection with the show cause notice. Reminded that he had said he could not recollect the terms of the conversation, he said after a long pause that he could not remember the precise words, but did recall their meaning.
Mr Nicoletti who appeared on behalf of the Respondent then put it to him that Michael had never said he was a lawyer, but that the applicant had simply reached that conclusion himself. The applicant hesitated for a time before replying that he remembered speaking to Michael, who had said he would act on the show cause notice. He had not been mistaken about Michael's saying he was a lawyer. Although he could not remember the exact words, he did remember the details of the conversation because he had spoken to Michael by telephone at his office. It had been lodged in his memory. He had spoken to Michael because he had said he would look after the matter and that he was a lawyer. He recalled the conversation in exhibit A1A because he had spoken to Mai Pham earlier and she had said she would look after it. Asked why this apparently important conversation had not been referred to in his original affidavit (exhibit A1), he replied that as Michael had contacted him, he had no doubt about the matter.
In relation to para 8 of exhibit A1A, the applicant said he had not seen any explanation prepared by AKN in response to the show cause notice. At that stage he was still at liberty and was able to go to their offices. The notice was dated June 2013, but nine months later he was still telephoning AKN about it and had attended at their offices many times in connection with his criminal matters. On telephoning he had been told that both Mai and Michael were busy. Michael had told him he would research the matter. He had paid money into AKN's trust account in connection with fees for the criminal proceedings. When it was put to him that those payments did not relate to the show cause notice, he replied after a lengthy pause that he did not recall, as he had paid so many bills. He might have made some payments for that purpose, as he paid whatever she asked, but he could not recall. He did not receive receipts for all payments, but did receive bills, although he no longer had them.
In relation to Mai Pham's letter of 10 July 2013 to Fair Trading (exhibit R5, p 131), he disagreed that AKN had acted only in relation to obtaining an extension of time to respond to the notice. His visits to their offices were not only in relation to the criminal matters, but also the notice. He had thought they were acting for him in that connection. He acknowledged that his letter to Fair Trading dated 27 October 2014 said nothing about AKN acting for him, but said that because he was incarcerated, his main focus was on replying to the notice. He simply wanted to tell Fair Trading that he regretted his misdeeds and hoped for a second chance, as his current situation was affecting his family. He had been mistaken not to mention AKN, but he was worried and wanted Fair Trading to understand his situation. He had not been happy about AKN's handling of the matter.
He said he had been honest with Ms McManus in his letter to her dated 27 October 2014 (exhibit R5, pp 133ff), but had not mentioned the charge in relation to the cultivation of cannabis 25 Union Street, Riverwood, where he had been living, as he had thought it was irrelevant. He had not sought to conceal the Riverwood charge from Ms McManus, although he had supplied no specifics in relation to that charge as he had in relation to the Condell Park offences, as he had said that he had "recently been sentenced on charges for drug offences". Because he had been convicted on all the charges, and had been interviewed by the compliance section, he thought Fair Trading already knew about them.
A Corrective Services case note report dated 30 September 2015 recording an interview at the office of a staff member, Mr Michael Glover (exhibit R3, p 25), records that Mr Glover "reiterated previous advice that it might be better not to draw the tribunal's attention to the fact that he had been incarcerated for drug-related offences and was on parole….CI [apparently meaning the applicant] appeared to accept this and said he could see the sense in what author [apparently Mr Glover] was saying". The applicant did not agree that this note meant that he understood that revealing his drug convictions would not help his case in relation to the show cause notice. In any event the note was not a correct record. He acknowledged that Fair Trading would not be pleased to know about his involvement with drugs, and that the more convictions he had of that nature, the worse it would be for him. When again asked, however, whether he did not tell Ms McManus about the Riverwood convictions because he understood that informing her would harm his case, he became flustered and said that he had pointed out many times that he had said there were several drug charges, but he did not know whether this McManus had understood. He had been interviewed by compliance and therefore assumed that she must have known about the Riverwood matters, but as she had only mentioned Condell Park, he had replied in relation to Condell Park only. As he had said "charges" and the Riverwood offences had been mentioned twice in his Fair Trading interview with Phillip Dyball on 6 June 2013, he saw no need to refer to the Riverwood matters.
While at St Helier he had access to the telephone, but there were cost limits placed on the number of calls he could make. He acknowledged that the telephone record showed no calls as having been made to AKN, although he could have called them, but said he did not have their telephone number. He had phoned his mother and asked her to speak to Mai Pham for him at the AKN office. The communication referred to in exhibit R3, p 7 related to a notice of intention to apply to the Court of Criminal Appeal for leave to appeal. He agreed that his email to Mr Kammel of Fair Trading dated 15 September 2015 (exhibit R5, pp165-166), a year after the determination, was his first request for an internal review, but said that once he had been released he was free to make such a request. He had until then relied on AKN to take care of the matter for him.
In re-examination the applicant said he had not told Mr Glover at the 30 September 2015 interview that it would be better if he said nothing about his drug convictions and, moreover, Mr Glover had not suggested that he should. The charges listed in the respondent's reasons for determination (exhibit R5, p 123) clearly included both the charges relating to Condell Park and to Riverwood. He had thought Fair Trading had known all about them when he replied to the show cause notice.
He had not telephoned AKN after going into custody, as to do so he would have to put their number on a list and obtain approval for it. He did not have AKN placed on his list after going to jail because there was no reason to do so. He had seen Mai Pham once at Silverwater three weeks after his incarceration. He had spent part of his sentence at Silverwater, part at St Helier and had been released from Parklea. At each institution there were different practices in relation to telephone calls and stationery, but purchases could be made every nine days, but on different days in the different institutions. He worked at various prison jobs to earn money, which was limited to $14 per week. On occasion he had run out of writing materials. He had asked for some more but without success, though other inmates had shared their supplies with him. Each move to a different jail entailed establishing new relationships and in each case there was a time lag of between three weeks and two months to see the welfare officers. Incoming mail was checked by security, with resulting delays.
At the conclusion of the applicant's oral evidence, Mr Nicoletti said that Mai Pham was available but did not wish to give evidence and was not prepared to be cross-examined. A direction was then made for the issue of a summons to Ms Pham at the applicant's request to give evidence and produce documents, and the matter was stood over to 7 June 2016.
On the adjourned date the applicant was unrepresented, as his legal representative had filed notice of ceasing to act. Ms Pham appeared in response to the summons to give evidence. In her evidence in chief she stated that she is the principal of the law firm of AKN and Associates. Her email to Mr Nicoletti dated 8 March 2016 (exhibit R2) was treated as her witness statement. It had been tendered by the respondent on the first hearing date on the basis that Ms Pham would give oral evidence in relation to the matters contained in it.
In the email Ms Pham stated that the applicant was a client of AKN, having been engaged in 2012 to represent him in his criminal matters. In July 2013 Mr Do instructed the firm to seek an extension of time to respond to a notice to show cause (SCN), which they sought and subsequently obtained. Shortly after that Ms Pham had a conference with him together with Steven Zhang, solicitor, and gave him some preliminary advice in relation to the SCN. The applicant instructed AKN not to respond to the SCN, as at that time he had criminal proceedings outstanding. After that time her firm had no further dealings with the matter.
After the applicant was sentenced, Ms Pham did visit him in custody and gave him advice about the prospects of an appeal against his sentence. She remembered that he was extremely stressed and anxious, as it was the first time he had been incarcerated. He was very concerned about his family, particularly his mother's mental state. He was also concerned about his real estate licence and the outstanding issues he had with the Department of Fair Trading. She was unable to help him or properly advise him, as she was not experienced in that area. Mr Do asked her to find out what had happened to his licence, and she agreed that she would try to do so. She did not believe that to be giving him legal advice, nor that she was acting for him in relation to the SCN. In hindsight, she thought that perhaps the applicant did not fully understand that, as he was extremely stressed at the time.
It was not represented to the applicant that Mr Michael Pham was a lawyer, or that he had carriage of the matter. AKN did not believe that they were instructed in relation to the SCN in 2014 or 2015. Other than the initial advice mentioned above, they did not give the applicant any further legal advice in relation to the matter. They received a "cc" letter from the Department of Fair Trading dated 4 November 2014 that was addressed to Mr Do in custody, and they were copied in. They assumed that the letter was sent to him direct in custody, and thus did not inform him about the letter, nor did they give him any advice about its contents.
In oral evidence in chief the witness said they had not prepared a reply to the SCN because of the criminal matters outstanding. They did, however, apply for an extension of time from July to August 2013. After that the applicant said he would contact the Office of Fair Trading directly. Thereafter AKN had no further contact with Fair Trading.
Ms Pham said that the applicant had tried hard to overcome his problems. He was apprehended in 2012 and was later the subject of charges and the SCN, and had gone to work for another company. She came to visit him at Silverwater while he was on remand as his mother had asked her to visit him. She could not recall whether she had any documents for him to sign on that occasion, but advised him about the prospects of criminal appeal. He had mentioned that he was concerned about his licence and had been in contact with Fair Trading before his incarceration.
She had no further contact with him after that. He had said he would contact Fair Trading to ascertain the result of the SCN. She had tried to contact Fair Trading but had been unable to reach the relevant officer. As the letter she had received concerning the decision was only a "cc", she had thought the applicant would deal with the matter himself and therefore had no further contact with him. After his release from custody he had come to see her on 15 September to obtain a copy of the fact sheet to use in his licence application to Fair Trading. The firm had also obtained for him a copy of the transcript and the judge's sentencing remarks, which he had collected at the office.
In cross-examination the witness agreed that her letter of 10 July 2013 addressed to Fair Trading (exhibit R5, p 131) had been prepared in relation to the extension of time request, and that no other documents had been prepared in relation to that matter. The email from Mr Fred James to Mr Zhang of AKN dated 7 November 2013 was Fair Trading's response to that letter, and granted an extension of time to 5 August 2013 (exhibit R5, p 132).
Ms Pham agreed that the applicant's decision not to respond to the SCN because of his criminal charges was a strategic decision made by him. She had received no further instructions in relation to the SCN as he had said he would handle it directly. Their firm was mainly involved with his criminal matters. He had tried very hard to rehabilitate himself and had done everything he could. At the time he had been in much turmoil and deserved another chance to have the matter reviewed.
The applicant also called as a witness Mr Dean Stojanovski, director of the Quest Realty Group at Bankstown. As he was intending to give character evidence only, Mr Nicoletti agreed to his being called although no witness statement had been filed in relation to him. The witness said he had known the applicant for five years in the real estate industry when Mr Do had initially been conducting his own business. Mr Stojanovski opened his own business three years ago, and about two years ago Mr Do had approached him to see if he would be interested in purchasing Mr Do's rent roll. He had asked Mr Do to come and work for him in order to assist with his Vietnamese clients. In about March 2013, Mr Do had joined Quest Realty and proved to be a good employee, always following the firm's procedures. All his clients were happy to deal with him and the firm had lost no business. He had left Quest when he began his sentence, having told him about his forthcoming sentencing about a month before the event. Mr Stojanovski had written a character reference for him and had given character evidence for him in the criminal case. He had told him that once he recovered his licence he should come back to see him. If he could be reinstated with a certificate or a licence, he would take Mr Do on, as clients were still asking for him. He believed that the applicant had learned a lesson.
In cross-examination the witness said he had not enquired as to whether the applicant's business was licensed, and the applicant had not told him that it was not licensed. The witness had only enquired about the rent roll.

Respondent's evidence

The respondent relied on the s 58 documents and the other documentary exhibits. The respondent also tendered an affidavit of Mr Geoffrey O'Reilly (exhibit R1), senior correctional officer with Corrective Services New South Wales, sworn on 14 March 2016. In it Mr O'Reilly said inter alia that inmates have access to both incoming and outgoing mail that circulates between correctional centres from inmate to inmate. Incoming mail is subject to a number of restrictions, primarily security based. Within those parameters, incoming mail is provided to inmates, and if lacking the necessary funds they can be assisted in a number of other ways.
An inmate may send out an unlimited number of letters and will be supplied with up to 2 stamped envelopes per week. In addition the inmate may purchase as many stamped envelopes per week as he or she can afford. The only limit is the state-wide weekly limit on inmate spending, currently set at $80. Writing materials may also be purchased and if lacking the necessary funds the inmate may be assisted in other ways.
If the inmate experiences difficulties with reading and writing, a number of officers can transcribe the letter for the inmate. Mr O'Reilly .had personally done that on occasion.
Incoming telephone calls are not generally available for inmates, but a person may contact the correctional centre in which the inmate is located, and a message will be passed on to him or her if appropriate. Correctional Services provides inmates with access to outgoing telephone calls. The telephone unit is not a conventional unit, but one that employs a common auto dial list. That system allows a particular telephone number to be allocated to a particular number on the list. Thus a person might submit their mother's telephone number to the telephone officer by means of a prescribed handwritten form. The inmate might indicate that the number be placed into position 1 on the list. When then making a call to that number, they simply dial 1, not the actual telephone number. Calls are limited to 6 minutes for personal calls and ten minutes for legal calls. The telephones are placed in inmate common areas. Corrective Services will pay for three local calls for an inmate who is awaiting sentence and one local call for a sentenced inmate per week. Telephone calls are also regularly facilitated by welfare officers, wing officers and case officers, outside the OTS system.
The inmate has access to professional and legal visits. Those visits are generally conducted in the centre where the inmate is housed at the time of the visit. During ordinary business hours, an inmate is not denied a visit with their legal representative as long as the representative can identify himself or herself as such. Lawyers from the Prisoners Legal Service visit inmates in correctional centres according to a prescribed schedule which varies from centre to centre. An inmate wishing to see the service may contact their wing officer to book an appointment with it. The witness was not required for cross-examination.

Applicant's submissions

The applicant filed and served a written outline of submissions on the application for leave to file out of time pursuant to s 41 of the CAT Act, pointing out that the application for internal review should have been brought by about 2 December 2014. The administrative review application was filed on 14 October 2015, thus some 10 months out of time.
In Jackson v New South Wales Land and Housing Corporation [2014] NSWADTAP 22, the tribunal cited the decision of McHugh J in Gallo v Dawson [1990] HCA 30, 93 as an informative exposition of the factors permitting courts and tribunals to extend time limits. In Jackson at [22], the presiding member of the appeal panel stated that "It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable".
In this case the explanation for the delay was as follows:

AKN made no submissions on behalf of the applicant, despite having sought an extension of time to reply to the show cause notice. The applicant was sentenced on 13 June 2014. It was highly likely that AKN had failed to do anything on behalf of the applicant after he was sentenced. The applicant's affidavit confirmed that.
After the applicant received a determination on about 11 November 2014, he sought to make enquiries quickly to ensure that the disqualification did not take effect "14 days after determination". He did not read the attached material titled "relevant legislation". At that stage he was unaware that he had twenty-eight days to file an internal review application.
Despite the inherent communication difficulties associated with being incarcerated at the time and the problems with making telephone calls, the applicant called Mr Kammel and subsequently sent correspondence to the department asking that no action be taken against him. The applicant thereafter wrongly assumed that no action would be taken until he was released. He formed that opinion through having believed that the department was aware of his situation, that is, being in custody and unable to deal with the matter properly.

The applicant was released from custody on 6 September 2015. He then proceeded to call Mr Kammel, send him emails and ultimately filed the application now before the tribunal.
Those facts constituted a reasonable explanation for the delay and showed that the applicant at no time sat on his hands and did nothing about the matter. He was unaware of the statutory time limits. He reasonably assumed that the determination would be stayed until his release and was diligent in then taking action, acting within 2 weeks following his release. No prejudice would flow to the respondent if the application were granted. The decision in issue profoundly impacts the applicant in that it effectively takes away his livelihood and his ability to support his three children and his wife, who are financially dependent on him.
As regards the merits of the application, the applicant accepted that the conduct complained of was capable of justifying a period of disqualification. The applicant's letter of 27 October 2014 to the Department sets out in detail what was occurring in his life at the time and the financial strain placed on him. His conduct was motivated by desperation, not greed. The author of the pre-release report stated inter alia that "Mr Do presented as a motivated and hard-working young man whose ambitions appear to have exceeded his experience in the real estate industry, creating an unmanageable financial situation that seems to have led to his involvement in the subject offences".
Craigie DCJ on sentence described the "offender's prospects of rehabilitation as being good" and rated the prospects of re-offending as low. In that regard the applicant relied on the psychological report of Mr Sam Borenstein, which noted inter alia that the applicant -

had completed courses in business, construction and information technology in prison;
volunteered regularly at the Cabramatta Buddhist temple;
had expressed genuine guilt and remorse;
at the time of the offences was suffering from a severe depressive disorder;
realized that going it alone and not sharing concerns with close family members potentiated his depression and impacted negatively on his decision-making. He had since learned to ask for assistance and expressed confidence that past mistakes would never be repeated;
had learned an important life lesson; and
had an extremely low risk of reoffending in a similar fashion.

The applicant submitted that he was fully rehabilitated and pointed out that he had never had a drug or other addiction for which he needed to demonstrate rehabilitation. He had been out of the industry for an extended period and was subject to a parole order that expires on 6 December 2016.
Pursuant to ss 192 and 200 of the PSBA Act, it was open to the tribunal to consider the imposition of a condition on the applicant's license, or alternatively to reduce the period of disqualification which, the applicant submitted, was excessive in all the circumstances.
At the hearing on the adjourned date, the applicant in person made oral submissions. He said that he had been too young at the time he had operated Home Centre Realty. He was twenty-six and he found it too difficult to handle the business and found himself in financial difficulties. He was newly married with two children. He was wrong in accepting the money but had paid the penalty and was currently at liberty on parole. He had learned much about real estate from Dean Stojanovski and found it hard to work in any other industry. He was currently employed at Coles Ready Retail at Smithfield, which was Coles's wholesaling operation, and had been working there on a casual basis for two or three months to date. He wanted to apologize to his mother and wished to raise his sons to be good citizens. He had a black mark against him, but had changed and sought to avoid bad people. Drug dealers had come to his office and asked him to help them. At the time of the offences they wanted to rent a house and offered to pay him if he helped them. He had made a big mistake by listening to them.
In reply he said that in October 2013, when he was at liberty, he had seen Ms Pham, who had told him no action should be taken in relation to the SCN until the criminal matters were concluded. She was not expert in these matters and had advised him to contact Fair Trading directly. Nevertheless he still trusted her to deal with the matter. In September 2015 on his release, his first action had been to email Fair Trading (exhibit R5, p 164) and he had spoken on the telephone to Mr Rod Kammel and another officer, and had told them that he had been unable to obtain access to writing materials and did not know what to do in relation to the SCN. While in prison he had tried to contact Fair Trading after receiving their determination but was unable to do so and did not know what to do.
His letter to Ms McManus of 27 October 2014 (exhibit R5, pp133-135) did not specifically mention the offence of cultivating cannabis at Riverwood, but he had thought it was a proper response as, having been interviewed in October 2012 by Fair Trading, he thought they knew about the other charges and by referring in the letter to his "other drug charges", he had meant to include Riverwood. While in custody he had not contravened any regulations and had participated in as many activities as possible. He had obtained he had completed a business course and a Salvation Army course on positive lifestyles, receiving certificates of completion for them. He had undertaken the courses on the advice of a priest named Father Gerard, who had encouraged him to develop a more positive attitude to life. While in prison he had found it difficult to respond to the SCN. He had been assaulted by another inmate and had to be transferred to Parklea, where there were few facilities and a wait of between two and three months to see the welfare officers. He had only been able to contact his mother's and his wife's telephones.

Consideration

In considering the application for an extension of time under s 41 of the CAT Act, it is helpful to set out a chronology of the events:

24 June 2013: Fair Trading issues a notice to show cause to the applicant;
10 July 2013: AKN Lawyers seeks a 21-day extension of time to respond to the SCN;
11 July 2013: Fair Trading confirms that the time for responding to the SCN has been extended to 5 August 2013;
27 October 2013: applicant by letter responds to SCN;
13 June 2014: applicant sentenced in the District Court and enters custody;
4 November 2014: Fair Trading sends a notice of determination to the applicant informing him of his disqualification and of appeal rights;
11 November 2014: applicant receives the determination:
6 September 2015: applicant is released from custody;
16 September 2015: applicant requests an internal review of the disqualification decision made on 4 November 2014;
1 October 2015: Fair Trading informs the applicant that an internal review is refused as the request was out of time;
14 October 2015: applicant files an application for administrative review in this tribunal.

The facts in this case thus show three instances of failure to comply with time limits: the failure to respond to the SCN by the extended deadline of 5 August 2013, the failure to apply for an internal review of the determination within 28 days, the request being some 10 months out of time, and failure to apply for administrative review in this tribunal within 28 days following the determination, that application also being some 10 months out of time. For present purposes the material instance is the last-mentioned one, the failure to apply for review in this tribunal within 28 days, the time specified in part 6 of the Civil and Administrative Tribunal Rules 2014. That application also was some 10 months out of time and it is the one for which the applicant seeks an extension of time under s 41.
The principles governing applications for extension of time to appeal under s 41 and similar provisions have been laid down in a number of cases, including Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 per Wilcox J, Jackson v New South Wales Land and Housing Corporation [2014] NSWADTAP 22, [22], and most recently in Salmon v Department of Justice (Corrective Services New South Wales) [2016] NSWCATAP 122, [7] where the Appeal Panel, following Jackson, had this to say: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Length of the delay and reason for it

The delay of approximately 10 months in the applicant's seeking review in this tribunal is substantial, given that time allowed is 28 days. His explanation for the delay on the first day of the hearing was that he had instructed Michael Pham, Mai Pham's brother, at AKN to act for him in relation to the SCN, being under the impression that he was a lawyer. After a conversation with Mai Pham in or about September 2014 in which he said she reiterated that Michael was attending to the matter and she knew nothing about it, he felt that Mai no longer had an interest in the matter and in October 2014 contacted Fair Trading and was told that his matter had been allocated to Anne McManus. He did not leave a message on her voicemail at the time, as she could not call him back in jail. He thereupon wrote the letter of 27 October 2014 to Fair Trading, to the attention of Ms McManus.
Shortly afterwards he received the determination dated 4 November 2014. He did not read the attached legislative material. As a result of receiving the determination, he saw the welfare officer on 18 November, at which time "I was permitted to make a phone call to the Department of Fair Trading". At that time he had a telephone conversation with Mr Kammel, who advised him to write to the department setting out why disciplinary action should not be taken against him and stating whether he wished to have an internal review. He said he then wrote a letter to the department to that effect, but no such letter is in the s 58 documents or otherwise in evidence. On the basis of these communications he believed that the matter would be stayed until he was released from custody and that the department would not finalize the determination until then. Following his release from custody on 6 September 2015, he contacted the respondent on 16 September and was advised by Mr Kammel to seek an internal review, which he did. The department on 1 October 2015 refused an internal review on the basis that the application was out of time. He then applied for review in this tribunal on 17 October 2015.
It will thus be seen that his explanation is essentially in two parts. First, that he was relying on AKN, and in particular Michael Pham, to act for him in relation to the SCN; secondly, that as result of his communications with Fair Trading, he believed that the matter would be stayed until he was released from custody and, besides, because of his incarceration he was suffering from anxiety and found it difficult to concentrate. It was also difficult for him to make telephone calls as there were delays and cost limits.
His evidence on the first point was less than impressive. He had set out in his affidavit of 30 March 2016 (exhibit A1A, para 5) the conversation with Michael Pham, but said in cross-examination that he could not recall what was said in the conversation. When pressed on the point, he said after a long pause that he could not recall the precise words but did remember their meaning. After a further pause he reiterated that he had spoken to Michael, who had told him that he was a lawyer and would look after the matter. Asked why he had not referred to that conversation in his initial affidavit (exhibit A1), he said that as Michael had contacted him, he had no doubt that AKN was representing him in relation to the SCN. He was also hesitant about his claim that some of the payments he had made to AKN related to the SCN, and appeared to retract that assertion, saying after a long pause that he could not recall whether any payments related to the SCN because he had paid so many bills.
Even more damaging to his submission on this point was the evidence of Mai Pham, his own witness who appeared on summons at his request. Ms Pham said that AKN had been instructed to act for the applicant in relation to his criminal matters, including the possibility of an appeal, but as regards the SCN they had been asked only to seek an extension of time, which they did. He had been very concerned about the SCN and said he had been in contact with Fair Trading before going into custody. He said he would contact Fair Trading to ascertain the result of the SCN, and as AKN received the notice of the termination only on a "cc" basis, they believed that he would deal with it himself, and had no further contact with him until he was released from custody and that they supplied him with a copy of the fact sheet and the sentencing remarks for use in his application to Fair Trading.
Ms Pham gave no evidence about any contacts of the applicant with Michael Pham and was not asked any questions about him. She was emphatic that her firm had prepared only the application for an extension of time and had not been involved in dealing with the SCN in any other way, as the applicant had said he would attend to it directly. It was thus on his instructions that no reply to the SCN had been made. She agreed in cross-examination that he had made a strategic decision not to respond to the notice. The applicant's submission that AKN had informed him that it was acting for him on the SCN was thus contradicted by his own witness. In his submissions on the second day, he appeared to have abandoned that point, but still maintained that he had relied on AKN to attend to the matter. In the light of all the evidence, I find that this point is without substance.
His second main point was that he believed that Fair Trading had stayed the matter until his release from custody. The evidence in relation to this claim was scant. Nothing in his communications with Mr Kammel or Ms McManus gave any ground for believing that a stay was in effect. The determination and its supporting documents both gave details of internal and tribunal review options and supplied a 1300 telephone number if he wished to seek more information from the tribunal. The applicant did not challenge the adequacy of the information provided by the respondent in the determination. In his evidence he indicated a number of times that it was difficult for him to make telephone calls. For example, in exhibit A1A para 20, he states that "I was in custody, and it's very hard to contact the Department. I can't even make phone calls to my own family on some days". In his affidavit exhibit A1, he stated that after seeing the welfare officer on 18 November 2014 "I was permitted to make a phone call to the Department of Fair Trading", giving the impression that it was somewhat special privilege. In para 3 of the same affidavit, he alleges a conversation with Mai Pham in which the said to her "I am stuck here, I can't make phone calls, or receive calls".
The unchallenged evidence of Mr O'Reilly, however, indicates that the applicant would have had ample opportunities for contacting the department or anyone else. Even more telling are his prison telephone records (exhibit R4), consisting of 43 pages listing 35 telephone calls per page, a remarkable total for a 15 month period. If there were cost limits, as he claimed, they must have been generous. The entries begin on the day after his entry into custody and finish two days before his release.
One can accept that the applicant was in an anxious and agitated state as a result of his incarceration. Ms Pham's evidence was supportive on that point. But he had ample opportunity to collect himself and take appropriate steps with a view to safeguarding his position (including reading the attachments to the determination). I therefore find that his submission that he was under the impression that a stay of the determination was in effect is unreasonable and cannot be sustained. His explanation for the delay is thus inadequate.

Applicant's prospects of success

As the Appeal Panel has explained, this consideration normally depends on whether the applicant can be said to have a fairly arguable case. In this instance, as Mr Nicoletti submitted, that turns on whether (1) the Director-General (and by derivation the tribunal) can be satisfied that Mr Do is a fit and proper person to hold a licence under s 14(1)(b) of the PSBA Act, and (2) whether, as a result of having been convicted of an offence of dishonesty within 10 years, he is subject to mandatory disqualification under s 16(1)(a) of that Act
In an often-quoted passage in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, [63], Mason CJ considered the meaning of "fit and proper person": The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation 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".
Bond also makes it clear that it is necessary to keep in mind the kinds of activities in which the person will be engaged in a licence is granted.
In assessing fitness and propriety, three characteristics are to be considered: honesty, knowledge and ability: Hughes and Vale v New South Wales (No.2) [1955] HCA 28, (1955) 93 CLR 127.
Prominent among relevant considerations are the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted, and the likelihood that he will re-offend: Saadieh v Director-General, Department of Transport [1999] NSWADT 68.
The conduct giving rise to the disqualification of the applicant was egregious. Specifically, he:

Operated an unlicensed real estate corporation for a period of approximately 3 years in contravention of s 9 of the Act;
Failed to disclose particulars of criminal convictions in his application for restoration of a licence as a real estate agent at work relevant to the determination of that application;
Failed to notify the respondent that he had been charged in late 2012 with serious offences under the Crimes Act 1900;
Admitted to Fair Trading investigators to not understanding a number of relevant requirements as a real estate agent under the Act; and
Was subsequently convicted and sentenced on 13 June 2014 to 2 years and 6 months' imprisonment for the offences under the Crimes Act. These were cultivating a prohibited plant in a commercial quantity, using or consuming or wasting electricity without authority, and accepting a benefit for concealing a serious indictable offence (Crimes Act s 319(2)).

The matters he failed to disclose included common assault and six traffic matters. He did not dispute these particulars or the facts underlying the convictions, but did dispute that he had withheld from the respondent particulars of his cannabis cultivation charge relating to Riverwood. As he had some reason to believe that the respondent was already aware of that charge as a result of interviewing him and in his declaration used wording broad enough to include it, I regard this as a less serious count, although it does indicate a certain tendency to give himself the benefit of the doubt in a manner inconsistent with the intendment of the legislation.
In this context the fact that all three of the 2014 criminal charges arose directly out of his activities as a real estate agent is an aggravating factor. Further, the applicant is still subject to a sentence of imprisonment not expiring until 6 December 2016. The business of a real estate agent involves an element of public trust, including in the handling of sometimes substantial amounts of other people's money. Issuing a licence to a person still under sentence of imprisonment, including for an offence of dishonesty, would hardly be calculated to enhance public confidence in the licensing scheme. A person in that position could not normally be said to be a fit and proper person to hold a licence, and no authorities suggesting the contrary were drawn to my attention.
The sentencing judge considered the likelihood of his reoffending to be low and noted that the applicant has made efforts to rehabilitate himself. Ms Pham supported that assessment, and Mr Stojanovski expressed a willingness to re-employ the applicant "when the day comes" when he recovers his real estate licence. He has had no drug or other addiction problems to overcome. Nevertheless, the offences and the contraventions of the PSBA Act are serious and bear on all three characteristics, honesty, knowledge and ability. The compounding offence and the furnishing of incomplete and misleading information to the respondent relate to honesty, his admission of ignorance concerning regulatory requirements goes to knowledge and his operating a real estate corporation without a licence, perhaps together with the fact that he ran his business into serious financial difficulties (as well as his admitted failure to read the attachments to the determination) reflect on his business ability and his ability or willingness to remain within the law. The offences and derelictions are also relatively recent.
Where an applicant has displayed serious deficiencies in standards of conduct and attitudes, clear proof may be required to show that the applicant has established himself or herself as a different person: Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325, [35]. The unimpressive nature of some of his evidence in these proceedings also does little to inspire confidence. He does not appear to have an arguable case and the prospects of his satisfying the fitness and propriety requirements of s 14(1)(b) of the Act at this stage must be regarded as slight.

Order

Extension of time refused. 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: 21 June 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Cases Cited (12)