Dosovic v Commissioner of Fair Trading

NCAT Occupational|2023-04-11

REASONS FOR DECISION

This is an application to the Tribunal under s 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) for a review of the decision by the Respondent to refuse the Applicant's application for renewal of his class 2 real estate licence pursuant to s 19 of the Property and Stock Agents Act 2002 (NSW) (PSAA). That decision was made on the grounds that the Respondent was not satisfied that the Applicant is a fit and proper person to hold a certificate of registration and, therefore, does not meet the eligibility requirements in s 14(1)(b) of the PSAA (decision under review). That is a decision which is administratively reviewable by the Tribunal by virtue of s 27 of the PSAA.
As described below, in making the decision under review the Respondent relied on the fact that the Applicant had been charged with certain offences between 2019 and 2021 including but not limited to offences related to prohibited drugs, dealing with the proceeds of crimes and sexually touching without consent. In respect of the latter conviction, this was subsequently set aside by the District Court on appeal.
Certain documents relating to the criminal proceedings were obtained by the Respondent in advance of the hearing of this application in response to a summons issued by the Commissioner of Police, New South Wales Police Force to the various Courts that entered the convictions as against the Applicant. Those documents are now in evidence before the Tribunal.
The question the Tribunal needs to determine in these proceedings is what is the correct and preferable decision having regard to the material now before it including any relevant factual material and any applicable written or unwritten law: s 63 ADR Act.

Material before the Tribunal

In addition to the Applicant's chronology, the Applicant relied upon: 1. The Applicant's application dated 3 January 2023 attaching a copy of the internal review as well as: 1. a letter from Maroubra Medical Centre dated 3 January 2023; and 2. a document entitled "Annexure A" which I treat as part of the Applicant's submissions. 1. Written submissions dated 21 March 2023 and marked "A1" attaching a bundle of documents including: 1. District Court of NSW court order dated 9 February 2023; 2. Correspondence from N G Farah Real Estate (being the Applicant's former employer) including the Applicant's letter of termination. 3. Correspondence from the Department of Customer Services; 4. Psychological report prepared by Dr Rose Cantali; and 5. Three character references. 1. Written submissions of the Applicant on a stay application which was heard on 16 January 2023 (marked "A2") and which I will treat as part of the Applicant's submissions.
The Respondent relied upon: 1. Outline of written submissions dated 5 April 2023 with attachments (marked "R1"); 2. The "section 58 bundle of documents" (marked "R2"); 3. Written submissions of the Respondent on the stay application referenced above (marked "R3") and which I will treat as part of the Respondent's submissions; 4. Bundle of documents beginning with an email dated 11 April and attaching documents produced to the Local Court Waverly relating to certain drug offences for which the Applicant was convicted (marked "R4"); and 5. Documents produced by way of summons in envelopes "S1", "S2", "S3" and "S4" produced by the Downing Centre Local Court, Waverly Local Court, Downing Centre District Court collectively marked "R5".

The Applicant's qualifications and work background

The Applicant was issued with a property certificate on 14 August 2017. The certificate transitioned to a certificate of registration as an assistant agent, real estate agent, sales or leasing on the commencement of the real estate and property reforms on 23 March 2020. The certificate authorised the Applicant to carry out the activities of an assistant real estate agent with the condition that the applicant only exercised real estate sales or leasing functions or on-site residential property manager functions whilst employed and under the supervision of a licensee in charge of a real estate licence. The certificate of registration is due to expire on the 22 March 2024.
Additionally, on 1 July 2020 the Applicant was also issued a class 2 licence authorising him to carry out the activities of real estate agent with condition that he only exercise real estate sales or leasing functions or on-site residential property management functions (the Class 2 Licence).
Prior to termination of employment, the Applicant had been employed by NG Farah Real Estate for around five years and held the position of Business Development Manager. He has been unable to work in this position since 15 November 2022 given the Respondent's refusal to renew the Applicant's licence. On 20 January 2023, the Applicant received a letter of termination from his former employer

The application to renew and refusal

The Class 2 Licence was due to expire on 30 June 2022. On the day that it was due to expire, the Applicant lodged a renewal application and declared that since his last disclosure, he had been convicted in NSW of an offence. The Applicant indicated he did not have time to obtain a police check but briefly listed the details of the circumstances leading to each criminal offence or charge as follows: "* supply - had illicit drugs in car and also had cash and pulled over by police; * alcohol/ give particulars to owner - crashed car late at night in home arrest, walked home, police came, charge me with drink driving even though was sober * possess prohibited drug/ remain on premises - refused entry than searched and had illicit drug on me * sexually touch/ possess prohibited drug - girl in club accused me of touching her inappropriately which I didn't, then got searched by police"
The Applicant also stated in his renewal application that he was awaiting an appeal in respect of the charges of sexual touching and possessing a prohibited drug.
On 14 November 2022, the application to renew was refused in accordance with sections 19 and 14(1)(b) of the PPSA on the ground that the Applicant was not a fit and proper person to hold a licence under the PPSA due to his criminal record.
On 8 December 2022, the Applicant requested an internal review and the decision was affirmed on 21 December 2022.
On 3 January 2023, the Applicant lodged an application for review in this Tribunal.

The criminal charges

On 21 December 2018, the Applicant was charged with supplying a prohibited drug and dealing with property proceeds of crime with the value of the property being less than $100,000.
According to the police fact sheet, police were patrolling in the vicinity of Ryan's Bar in the city of Sydney, NSW. At this time, the Applicant was seen occupying the drivers' seat of a car which was stationary near the bar. Occupying the front seat was a female known to police. The car has remained stationary for some time and then quick U-turn before pulling over to the curb at which time, a male approached and entered via the rear passenger side. The car has driven for about 30 seconds before the male in the back seat has exited while the car was at a traffic light.
Police stopped the vehicle and removed the Applicant and the female passenger. Prior to commencing a search, the police questioned the Applicant as to whether there were any drugs in his vehicle to which he stated "Yea 7 bags in the middle".
Police discovered: 1. seven small resealable bags containing cocaine containing 5.35 grams; 2. $1250 in various denominations; 3. a further $300 in $50 denominations in the glove box; and 4. a mobile phone on which there were various messages detailing a meet up for drug exchange.
On 12 June 2019, the Applicant was convicted pursuant to s 193C(2) of the Crimes Act 1900 and s 25(1) of the Drug Misuse and Trafficking Act 1985. He was sentenced to a Community Corrections Orders for two years (which expired on 11 June 2021) and fined $1000.
On 28 November 2019, the Applicant was charged with not giving particulars to the owner of property in contravention of regulation 287 of the Road Rules 2014 and driving a vehicle under the influence of alcohol.
According to a letter written on behalf of the Applicant as part of his submissions for the purposes of the internal review, the circumstances were as follows: "Our client was involved in an accident with an unoccupied parked car in the street that he lived on, he then went home to obtain advice from his parents and gather a pen and paper in an attempt to note his details and leave them on the windshield of the affected vehicle. However, the police arrived at his home shortly after the incident preventing him from returning to the affected vehicle and leaving his details"
On 10 September 2020, the Applicant was convicted and ordered to pay a fine of $550 in respect of the charge related to not giving particulars. The charge of driving under the influence was dismissed.
On 24 January 2021, the Applicant was charged with possessing a prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 as well as a charge of excluded person remaining in the vicinity of a licensed premise.
According to the police fact sheet, on 24 January 2021, the Applicant attended the Coogee Pavilion but was refused entry along with the other males he was present with. A verbal argument broke out and security was threatened with one of the males stating: "I'm going to fucking shoot you, I'm with the Commanchero's, I'm going to get the Commanchero's onto you"
The Applicant and the other males were repetitively asked to leave. The Applicant then got into a car in the car park behind the hotel which was later identified by the police. When police activated their siren, the car suddenly stopped and the Applicant fled from the car sprinting away from the scene. Police pursued the Applicant and arrested him. The police discovered that the Applicant was in possession of 0.25 grams of GBL which the Applicant stated was for "personal use".
On 9 June 2021, the Applicant was convicted and ordered to pay a fine of $700 in respect of the drug possession and $200 fine in respect of the charge related to remaining in the vicinity of a licensed premise.
Five days later, on 14 June 2021, the Applicant was: 1. again charged with possession of a prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985; and 2. sexually touching another without consent.
According to police fact sheet, on 13 June 2021, the Applicant attended a nightclub in Potts Points, Sydney. Prior to arriving, the Applicant had consumed about 1.6 standard drinks. While at the nightclub, the Applicant consumed five to ten vodka and lemonade in short glasses. The Applicant also consumed a couple of millilitres of Gamm-hydroxybutyrate commonly referred to as GHB or "G".
At approximately 11.55pm, a man approached a woman from behind. That man allegedly danced against the woman for a short period of time, placed his hand between her legs, reached to the front and applied pressure to her vagina while sliding his hand back. The woman has turned and confronted the man and pushed him away. The woman has then informed her friend and then informed an RSA Marshal who was wearing a hi-vis vest. The RSA Marshall has then approached the man and asked him to leave the venue due to being intoxicated. The fact sheet describes the CCTV footage, which was viewed and obtained by the police that evening, as showing a male matching the Applicant's description dancing close to the alleged victim, being pushed away on two occasions, and then being spoken to by an RSA Marshall before leaving the venue. The Applicant admitted in his interview with police being spoken to by the RSA Marshall.
Shortly after this, police attended the location to conduct a standard business inspection. The woman informed the police of the alleged events and the police obtained statement and the CCTV footage as described above. The police were then informed by security that a male had been asked to leave and that he was "hanging around" and requested police to move him away. The police approached the Applicant who, the police assessed, matched the image from the CCTV footage. The Applicant denied all allegations. The Applicant was placed under arrest, The police discovered that the Applicant had GMB in his possession which weighed 28.42 grams (including the container).
On 25 February 2022, the Applicant was convicted. In respect of the first charge, a conditional release was ordered for 12 months commencing 25 February 2022 supervised by the Community Corrections Service with the Applicant ordered to engage in drug and alcohol counselling and psychological treatment for anxiety and depression. With respect to the second charge of sexually touching another without consent, the Applicant was subject to a conditional release order for 12 months and ordered to engage in drug and alcohol counselling and psychological treatment for anxiety and depression.
On 9 February 2023, the District Court set aside the conviction and penalty imposed for the offence of sexually touching another without consent. The reasons for setting aside the conviction are not clear as the Court's reasons have not been provided. In any case, the conviction and sentence with respect to possession of a prohibited drug was not set aside.

The Submissions

The Applicant argues that the focus of the Application is limited to the charges that post-date the granting of the Applicant's initial licence on 27 April 2020. That is, the events of: 1. 24 January 2021 when the Applicant was charged with possessing a prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 as well as a charge of excluded person remaining in the vicinity of a licensed premise; and 2. on 14 June 2021, the Applicant was again charged with possession of a prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 and sexually touching another without consent.
In respect of the events of 14 June 2021, the Applicant contends that the charge of sexually touching another without consent may be disregarded given that it was ultimately set aside and otherwise the prohibited drug charge is "trivial in nature" with its "objective seriousness being low".
Additionally: 1. the Applicant relies upon the character references, including character references relied upon in the proceedings before the Local Court in February 2022 and describe the Applicant in positive terms, for example: 1. a "good-hearted individual" with "the most pure intentions" by a friend, Mr Fadi Saad; 2. "caring, empathetic, hardworking and loyal" by another friend, Ms Amelia Elchaar; and 3. his former employer, Mr Damiem Caruana of NG Farah Real Estate, as having a "hard work ethic, professionalism and always willing to help"; and 1. the Applicant has demonstrated contrition with respect to his actions.
Otherwise, the Applicant sought to emphasise the hardship experienced by him to date and in the future if his licence was not renewed and contended that the situation has caused him immense distress.
Conversely, the Respondent contends that the convictions of the Applicant are objectively serious as reflected in the maximum penalties that can be imposed for them. In respect of the Applicant's submission that only the more recent convictions be considered, the Respondent disputes this as a matter of principal and contends that the Tribunal is not limited in this way and should look at the "entire picture" and all the evidence in making the correct a preferable decision.
With respect to the character references relied upon by the Applicant, the Respondent submits that: 1. little weight ought to be given to them because while some of the references refer to certain charges, the referees do not establish that they are informed of all of the various offences for which the Applicant has been convicted and the sentences imposed. 2. with respect to Mr Fadi Saad's letters of reference, the Respondent, in oral submissions, drew the Tribunal's attention to the fact that an almost identical reference letter was written dated 19 February 2021 in the context of the Applicant's conviction of drug possession to that dated 17 February 2022 in the context of the Applicant's conviction of 25 February 2022. Both of those letters refer to the actions of the Applicant being out of character and as a result of recent hardship due to the death of several friends of the Applicant. The duplicity of these assertions almost a year later draws into question the accuracy of presenting the Applicant's conduct as out of character and exceptional.
Otherwise, the Respondent contended that the hardship of an applicant in having their licence refused is irrelevant to the Tribunal's consideration of whether he is fit and proper.

Consideration

The question the Tribunal must determine is whether it is satisfied that the Applicant is a fit and proper person to hold a certificate of registration as an assistant agent.

Fit and Proper Person

In Lukas v Commissioner of Police [2021] NSWCATAD 268, the Tribunal summarised the authorities relating to the meaning of fit and proper person as follows: 88.Determination of whether a person is "fit and proper" requires an evaluative judgment, as explained in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. At 380 Mason CJ explained: 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. 89. Toohey and Gaudron JJ said at 380: The expression "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 on 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 indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 90.A person's fitness is to be considered in the light of the activities that the person will undertake: see Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41]. 91. In Sobey v Commercial and Private Agents Board (1979) 22 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 devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character 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. (emphasis added)
The PSAA establishes that integrity, honesty and trustworthiness are central to the certification and licensing regime for persons engaged in the real estate industry in NSW: Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 at [44]. Section 16(1)(a) of the PSAA underscores the centrality of honesty, integrity and trustworthiness to the concept of fitness and propriety as an eligibility requirement to hold a licence or certificate.
As the Tribunal noted in Maher v Department of Fair Trading [2019] NSWCATOD 21 at 124: A licensed real estate agent carries privileges and obligations. Agents are entrusted to hold deposits on sales of properties and to receive rent on behalf of landlords. The industry is regulated to provide the public with a measure of confidence that agents follow rules in respect of trust money and conduct themselves competently, honestly and fairly.
While it is true that an assistant agent must be employed and supervised by a licensed real estate agent and is not responsible for trust accounts, they do, as an employee, carry on the functions of a real estate agent and may still be involved in transactions which involve significant sums of money changing hands.

Conduct giving rise to the charges against the Applicant

I reject the Applicant's contention that the focus of the Application is limited to the charges that post-date the granting of the Applicant's initial licence on 27 April 2020. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what the correct and preferable decision in connection with the particular administrative discretion is.
Secondly, with respect to the Applicant's contention that the Tribunal should disregard the evidence related to the charges of sexually touching another without consent because the conviction was set aside, I also reject this argument. In considering the question of fitness and propriety there is no reason why the Tribunal should not consider evidence of matters that were the subject of criminal charges that did not lead to convictions: Joseph v NSW Commissioner of Police [2017] NSWCA 31 at 63.
It is not necessary for the Tribunal to determine if the Applicant was, on the balance of probabilities (as opposed to the higher criminal standard of proof) "guilty" of the charges against him. What the Tribunal here needs to consider is the conduct which gave rise to those charges: EMB v Commissioner of Police [2020] NSWCATAD 255 at [29].
As the Tribunal noted in Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30]: The Tribunal accepts that the charges made against Mr Esterman following the altercation were subsequently dismissed by the Local Court. However, the Tribunal's role is different to that of a court: it is not the Tribunal's role to consider whether Mr Esterman's actions amounted to criminal behaviour, rather how they are to be seen when considering whether Mr Esterman is a fit and proper person to hold a security licence and whether it would be in the public interest for him to do so. It is, for these reasons, the conduct rather than the conviction that is of concern to the Tribunal. Bazouni & Ors v Commissioner of Police, NSW Police Service [2002] NSWADT 100
As the Appeal Panel observed in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20]: We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven.
While there are documents from the Court files in the criminal proceedings which is before the Tribunal, the Tribunal does not have before it the entirety of the evidence in the proceedings. Accordingly, caution must be exercised.
In approximately three years, the Applicant has been charged and convicted of offences related to prohibited drugs three times, charged three other times in respect of other offences and convicted in respect of two.
His criminal record to date, noting that he is 25 years old, has him coming to the adverse attention of the police six times. With respect to the events leading to his most recent conviction of possession of a prohibited drug pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985, the events leading to this conviction occurred only five days after being convicted of drug possession and convicted of the charge related to remaining in the vicinity of a licensed premise and only three days after the conclusion of the Community Correction Order to which he was sentenced in June 2019.
The evidence therefore establishes a serious and consistent disregard for the law, a lack of control and the inability to exercise good judgment. I further accept the submission of the Respondent that the offences are objectively serious but, in any case, the number of offences and their consistency is a further cause of great concern and a sufficient basis to find that the Applicant is not fit and proper.
Further, I am not persuaded based upon the reference letters and accept the submissions of the Respondent in this regard as summarised above. I do not find that this evidence is persuasive as a basis to find that the Applicant has made improvements to his character and conduct. In this respect, while the Applicant refers to his alleged "contrition" in the submissions made on his behalf, that alleged "contrition" does not find support in the evidence. Although the Applicant's submission dated 15 November 2022 as included in the s 58 documents is described as an "apology letter", it appears substantially invested in setting out the Applicant's background, participation and enjoyment of the real estate industry. Rather than contrition, the letter repeatedly denies any wrongdoing. In this respect, my findings are consistent with the observations made in the internal review decision of the Respondent.
As for the Applicant's submissions with respect to hardship, I accept that the loss of the Applicant's licence is an event that has caused the Applicant distress. However, that has little bearing on the assessment of whether the Applicant is fit and proper for the purposes of s 14(1)(b) of the PPSA which requires, consistent with the authorities cited above, proof that the Applicant is possessed of sufficient moral integrity and rectitude of character 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. I am not satisfied, based upon the evidence before me, that the Applicant is possessed of sufficient moral integrity and rectitude of character.
In view of this, I consider that the Applicant cannot, at this time, demonstrate that he is a fit and proper person to hold a licence in accordance with s 14(1)(b) of the PPSA and the renewal of the application must be refused in accordance with s 19 of the PPSA Act.
The correct and preferable decision is that the decision under review should be affirmed.

Orders

The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2023

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