Garland v Commissioner for Fair Trading [2025] NSWCATOD 28

1. The Respondent filed documents under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (R1). The Respondent also filed written submissions (R2).
2. The Applicant did not file written submissions, but attached some further documents to his Administrative Review Application which was filed with the Tribunal on 2 October 2024 (A1).

1. On 11 April 2024, the Applicant applied for the Certificate. In that application, he disclosed to the Respondent:

(1) that he had been convicted of 3 offences in the last 10 years, being 1 count of grievous bodily harm, 1 count of common assault, and 1 count of breach of an Apprehended Domestic Violence Order (ADVO); and

(2) that he was subject to two good behaviour bonds, due to expire on 10 January 2025 and 10 July 2025 respectively.

1. He provided supporting documents with the application (R1 p1-11), and also some additional material requested by the Respondent on 4 July 2024 (R1, pp16-33).
2. On 14 August 2024, his application was refused, as the delegate was not satisfied that the Applicant was a fit and proper person to hold a Certificate as required by s 14(3)(b) of the PSA Act, because he had been convicted of serious offences and was subject to community correction orders until 2025.
3. On 27 August 2024, the Applicant requested an internal review. On 16 September 2024 the internal review affirmed the refusal.
4. As noted above, the Applicant applied to the Tribunal for administrative review on 2 October 2024; his Grounds for Application (at A1) said:

"I have admitted since Day 1 that I have a criminal record and the crimes I committed don't go against the criteria that is set out in the Property and Stock Agents Act. If I'm good enough to complete the course and I haven't broken any real estate laws then I believe I should have my licence."

1. It is a requirement under s 10 of the PSA Act to hold a certificate of registration in order to carry on the duties of an assistant agent.
2. Section 19 requires the Secretary to refuse an application unless the applicant is eligible to be granted the certificate.
3. The relevant eligibility requirements are in s 14(3):

14 Eligibility for a licence or certificate of registration

...

(3) A person is eligible to hold a certificate of registration only if the Secretary 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.

1. The Applicant's reference (set out at paragraph 11 above) to "the criteria that is set out in the Property and Stock Agents Act" reflected his understanding that only offences that met the criteria in s 16 of the PSA Act would be a possible bar to the issue of the Certificate. But as explained at the hearing, s 16 doesn't apply (and was not relied upon by the Respondent); the Applicant's offences weren't "offences involving dishonesty", so he was not a "disqualified person" under s 16 or for the purpose of s 14(3)(d). Nor are the requirements of s 14(3)(a) and (c) in dispute. I find that those provisions are therefore all satisfied. But the issue remains whether he met the requirements of s 14(3)(b).

1. It is not in dispute that the Applicant was convicted of three criminal offences in on 11 July 2023 (Criminal History and reports were included in R1).

(1) (Incident 1): Assault occasioning actual bodily harm (DV)-T2 under s 59(1) of the Crimes Act 1900 (NSW) (Crimes Act).

(2) (Incident 2): Common Assault (DV) - T2 under s 61 of the Crimes Act; and

(3) (Incident 3): Contravene prohibition / Apprehended Domestic Violence Order (ADVO) under s 61 of the Crimes Act.

and that he received Community Correction Orders - for 2 years in respect of the conviction for Incident 1 (expiring 10 July 2025), and for 18 months in respect of the convictions for Incidents 2 and 3 (which expired 10 January 2025).

1. The Applicant didn't file any statement or affidavit. He was sworn in at the beginning of the hearing, and the Respondent's solicitor asked him questions. The essence of his testimony - as supplemented by the documents before the Tribunal - is set out below:

1. The Applicant was taken through the Facts Sheet dated 15 December 2022 (R1, p23ff), which recorded the incident that morning as reported to police by the Applicant's partner. Following police arriving at the scene, the Applicant was cautioned, arrested and conveyed to the police station.
2. It is sufficient to say that the recorded events included throat grabbing and biting, and he was charged with three common assault charges.
3. The Applicant told the Tribunal he "blacked out" and didn't remember the part of the incident that related to the "throat grabbing" (or taking his partner's phone), although he conceded he saw marks on his partner and therefore "I have to have done it" - because nobody other than him was there. He also said this incident was the only time he had blacked out "with rage".
4. He confirmed that he was charged with 3 offences in respect of Incident 1, but was convicted only in respect of the biting. This was consistent with the records before the Tribunal.

1. A further incident took place on 21 February 2023. The Facts Sheet was before the Tribunal (R1, p21). The Applicant said he had a better memory of the events that occurred, and didn't "black out" on that occasion. He confirmed he and his partner argued, and they cut their hand after falling into a pot plant. He said he didn't mean to push or hurt them.
2. The following day, his partner reported the incident to police; the Applicant attended the police station and was subsequently arrested.

1. The AVDO was put in place on 21 December 2022 following Incident 1. The Applicant confirmed that he was subject to bail conditions from that date, which included not approaching or contacting his partner, and not drinking alcohol. He accepted that he had breached those conditions, including by meeting with his partner, attending a pub with them where they were seen drinking alcohol together (R1, p25).

1. In other cross examination (and in response to questions the Tribunal also asked):

(1) Prior record: He said he previously had a clean record for 43 years, without even a speeding ticket.

(2) Employment history: He said his prior jobs had included working for 20 years as a security officer (until 2016). He is currently employed working for an air conditioning factory which supplies parts to air conditioning units. In cross-examination, he was taken to the Facts Sheet which suggested he had told the police that his employment was as a "rabbi". He said that he had never said he was a rabbi, but confirmed he had not sought to amend the Facts Sheet.

(3) "One mistake": He said "[My partner] and I are still together - this was a one off incident".

(4) His religion: he is a member of the Church of Jesus Christ of Latter Day Saints. He said that he helps people. He mentioned the church that he attended, but did not say how regularly.

(5) Counselling and therapy: He said he had contacted the church straight after the first incident, who had put him in touch with a therapist. He said he did sessions "around about 12 times", and that he did them by a video call. There was no record before the Tribunal of those attendances, or when they started and ended. The Applicant said that he didn't need to see him anymore. He said he attended a doctor because he "knew I needed help". He also said that he attended therapy with his partner (a lady in Gosford who did energy healing).

(6) Remorse: He said that he had spoken to his partner as part of the counselling, admitted he did wrong, and had asked for their forgiveness. He said that it was "minor" in his partner's experience, who accepted his apology because that was why they were still together.

1. The Applicant's partner attended the hearing by telephone, and was sworn in. They had provided a letter dated 9 April 2024 addressed to "Dear Sir/Madam" in support of the Applicant's application for a Certificate (R1, p14). It did not specifically refer to any of the incidents or convictions.
2. The gist of his partner's testimony was that:

(1) The Facts Sheets, although recording what they had said to police, overstated the events that occurred (and corrections had been sought by writing to the judge before the Applicant's court hearing).

(2) Following that theme, in respect of Incident 1, no real harm had been done, the Applicant had acted "out of character", he was "not violent before", and that it was "more of a mental breakdown". In respect of Incident 2, they took the blame for not being in a good frame of mind, having not slept for three nights, and leading to them (again) overstating the severity of the incident to police.

1. Nonetheless, the Applicant's partner confirmed the Applicant had breached the terms of the AVDO by meeting with them at the pub, where they had an (alcoholic) drink together. Their version was that it was "very harsh" because they had 1 drink only, and they rarely drink at all.
2. Regarding the Applicant's counselling, his partner said the Applicant did go to a psychologist "for a while"; they had both attended quite a few sessions with a friend of theirs located on the Central Coast who did intensive therapy, healing and counselling, but not recently.

1. There was a one page typed document from Ms X. It was undated and unsigned. The Applicant said she was a friend; he had met her in 2019 through his ex-wife, so had known her for more than 5 years. The document referred in general terms to his membership of the church, and his assistance to other members of the public. It said he had an "out of character experience and acted in a way that is beneath his character", but without any specific reference to any events.
2. The Applicant said that he had told Ms X about all the charges, and what he had done to his partner, but he couldn't say for sure if she had read the police fact sheets.
3. Having regard to this, and to its very general terms, I find this document to be of minimal weight.

1. The Tribunal has jurisdiction under the ADR Act to review a decision of the Respondent to refuse to grant the application for a Certificate under s 27 of the PSA Act.
2. In determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law: ADR Act, s 63. The Tribunal makes its own decision in place of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1 FCR 353 at 357. The civil standard of proof (balance of probabilities) applies in these proceedings, and there is no onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34].
3. Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal isn't restricted to material before the decision-maker; it may (and should) have regard to any relevant material before it at the time of its review: Shi v Migration Agents Registration Authority [2008] HCA 31.

1. "Fit and proper person" is not defined in the PSA Act. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. Public interest considerations play a role in assessing fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37].
2. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake (here, assistant agent activities). In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ of the High Court said:

"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."

"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."

1. In Hughes and Vale Pty Ltd v The State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 the characteristics of fitness and propriety were said to be knowledge, honesty and ability.
2. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper":

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence...but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public...as a person to be entrusted with the sort of work which the licence entails."

1. The Tribunal has considered the assessment of criminality in relation to fitness and propriety in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] (Grenfell). Judicial Member Molony said:

"The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an 4assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation."

1. In McEvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183, the Land and Environment Court refused a person's registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view the Court said "Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character".
2. In the case of Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, Senior Member Montgomery stated at [82]:

"... the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time and the Applicant's present circumstances and reputation..."

1. In Saleh v Commissioner for Fair Trading [2015] NSWCATOD 68, the Tribunal set aside the Respondent's decision on the basis of evidence that Mr Saleh had completed his sentence and parole supervision in relation to his criminal offences over two years before the proceedings, demonstrated he was a changed man and provided a number of references from professional associates.
2. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15, the Tribunal affirmed the Respondent's decision to refuse Mr Cooper a certificate of registration as a strata manager on the grounds that he was not fit and proper. Mr Cooper remained on a good behaviour bond at the time of the hearing. The Tribunal found at [76]:

"If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered."

1. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, the Tribunal, when assessing an applicant's suitability and fitness to be authorised to drive a taxi, noted the following factors for consideration:

"● the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

● the nature, seriousness and frequency of any complaints made against the applicant;

● the applicant's driving record;

● the applicant's reputation in the community; and

● the likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences.

In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicants circumstances such as increased support from friends, family or professional service providers."

1. In Giri v Roads and Maritime Services [2012] NSWADT 241 at [38], the comment was made that it was the applicant's conviction for the offences which must be considered by the Tribunal in assessing whether he is a fit and proper person to be authorised to hold the licence, not the sentence imposed. Further, the Tribunal may have regard to the circumstances of the offence and what those circumstances indicate.

Is the Applicant a fit and proper person to hold a Certificate?

1. The Applicant was open and candid with the Respondent. He disclosed his offences on the form when he applied for the Certificate.
2. The Applicant told the Tribunal that he was remorseful, has apologised to his fiancée, and taken accountability for his past actions. He assures the Tribunal that he would not be likely to reoffend, and has no intention of ever doing so. I accept he holds those views and that he has expressed remorse. I accept that he has a strong faith and that he is committed to trying to do the right thing.
3. These are all positive factors. But they must be viewed in light of, and weighed against, the following matters arising from my assessment of all the evidence presented:
4. First, the nature of two of the convictions (and the actions underlying them) involve assault in the context of domestic violence, a matter of great public concern. I accept that no custodial sentence was imposed. But there is more than one conviction, which negates some of the Applicant's submissions and references suggesting it was a one-off or single matter and therefore "out of character". In having regard to the evidence of his partner, there are inconsistencies between their evidence before the Tribunal and the Facts Sheets (being a contemporaneous record of the statements made to police). Their evidence given orally to the Tribunal may be an honest recollection today of what they believe occurred at the time. But it also significantly downplayed the severity of the Applicant's actions recorded in the Facts Sheets. In those circumstances, the Facts Sheets are considered a more reliable record of the events which occurred.
5. Second, the offences are relatively recent, with the actions of the Applicant occurring in late 2022 and in 2023, and convictions less than 2 years ago (in July 2023).
6. Third, the Applicant is in his forties; no longer a young man in his teens or twenties. Accordingly, the events that occurred cannot be put down to the vicissitudes of youth (c.f. Grenfell), where greater leniency may be warranted.
7. Fourth, the Applicant accepts that he breached the specific conditions imposed by the Court. They were in clear terms. A failure to abide by legal requirements is of clear relevance to the issue of a Certificate which requires ongoing compliance with the terms of the PSA Act and its related regulations.
8. Fifth, although one of the periods of the Community Court Orders has expired, the other remains in place until the middle of the year. Consistent with past guidance of the Tribunal referred to above, I consider it would not be in the interests of the public for a person in that position to be granted the privilege of a Certificate.
9. Sixth, on the basis of the evidence presented by the Applicant, or by his character referees, I cannot be satisfied that he has demonstrated sufficient reformation of character or rehabilitation since his convictions, including taking appropriate measures to ensure that he has addressed his personal issues. It is unclear that the Applicant attended any counselling sessions "post" his convictions, although I note his partner mentioned that they may have done so. Even if I accept that he underwent counselling and/or therapy, mere attendance is insufficient. The precise nature of the counselling was not explained. In any event, in the usual course, the Tribunal would expect a certificate from the practitioner and/or other evidence confirming the changes that have occurred to positively address matters of concern, and limit the chance of reoffending to an acceptably low level.
10. I have taken into account the Applicant's assurances, but they must be measured against the offences themselves, and the compliance or otherwise with conditions imposed. The recent nature of the offences, the breach of the AVDO terms, and the fact that the Applicant remains at this time under a Community Correction Order which does not expire until July this year, are matters which carry great weight.

1. For the reasons above, I am not satisfied for the purpose of s 14(3)(b) of the PSA that the Applicant is a fit and proper person to hold a certificate of registration.
2. It follows that:

(1) he is not an eligible person to hold a certificate of registration under s 14(3) of the PSA; and

(2) section 19 of the PSA requires that he not be issued with a Certificate.

1. The correct and preferable decision is therefore that his application for a Certificate should be refused.
2. This decision does not prevent a later application by the Applicant to the Respondent. It would be assessed, at that time, on its merits.

(1) The decision of the Respondent to refuse the application 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.