Jones v Commissioner for Fair Trading

Introduction

1. This is an application by Mr Cameron Jones ("the Applicant") for review of a decision by a delegate of the Commissioner for Fair Trading ("the Respondent"). The Respondent's decision was to refuse the Applicant's application to renew his Class 1 agent - Real Estate - Sales or Leasing and Class 1 agent - Stock and Station licence lodged under the Property and Stock Agents Act 2002 ("the Act").
2. The notice of refusal dated 3 November 2022 stated that the application was refused under subsections 14(1)(b) and 16(1)(a) of the Act.
3. The Applicant's counsel, Mr Donnelly, applied for an internal review of the decision to refuse the Applicant's application. The internal review affirmed the original decision, and the Applicant has applied to the Tribunal for external review.

Background

1. The internal review reasons for decision provide a reasonable background to the application: Records show that Mr Jones was granted licence number 20159720 on 22 June 2017 in the category of real estate agent and stock and station agent. On 22 March 2020, the licence transitioned to the category of class 1 agent real estate sales or leasing and class 1 agent stock and station. The licence expired on 21 June 2022. On 6 December 2021, Mr Jones was convicted of offences of "Dishonestly obtain financial advantage etc by deception" (two counts) and sentenced to an intensive correction order for 18 months commencing on 6 December 2021 and concluding on 6 June 2023 requiring supervision by community corrections, 60 hours community service and payment of $12,599.00 in compensation. On 16 September 2022, Mr Jones lodged an application to renew his class 1 agent licence number 20159720. On 3 November 2022, the application was refused on grounds he is a disqualified person and is not a fit and proper person to hold a licence.
2. At the time of the offences, the Applicant was employed as a contractor by the Gunnedah Stock & Station Agents Association ("the GSSAA"). It is apparent that the Applicant entered a guilty plea in relation to two offences - an offence that resulted in a loss of profit to the GSSAA of $19.27 ("Offence Sequence 1") and an offence that resulted in a loss of profit to the GSSAA of $12,599.02 ("Offence Sequence 5"). Sequences 2, 3 and 4 for the financial years 2014/2015, 2015/2016 and 2016/2017 were withdrawn and dismissed in full and final satisfaction of the plea to sequences 1 and 5.
3. The parties differ to some extent on the circumstances surrounding the offences and the role played by the Applicant. However, the sentence imposed is not in dispute. I note that in arriving at its decision, the court made findings of fact and the sentences that were imposed are based on those findings. The transcript of the Local Court proceedings shows the following findings: Plea of guilty was accepted by the prosecution in full satisfaction to sequences 1 and sequence 5. In relation to those matters, there is a statement of agreed facts. The statement of agreed facts outlines what occurred. Mr Jones was employed as a contractor. He was employed by the GSSAA. The organisation was the Gunnedah Stock and Station Agents Association, that is it was an association of people that looked after the selling of the cattle and arranged the yards, the opportunity, the mechanism for the sale of cattle which is integral to farmers within the community. He arranged for the sale and the buying of cattle. It arranged for the corralling of the cattle during the sale process. It arranged the facilities for that to take place. Mr Jones's role was integral to that operation. He had taken over after a person had long been in the position. In relation to the charges, there is two offences that are now before the Court. There were originally five matters before the Court when the matter was listed for hearing. Sequence 1 is one of the offences before the Court. It relates to the period ending 30 June 2014. On that day the facts indicated that the accused raised 50 tax invoices for receiving 110,000 head of cattle and for conducting branding of some 45,491 of those over the previous year. There was an over invoicing of some 2,051 head of cattle. When it was reconciled, there being an allegation there was only 41 head overbranded amounting to a loss of profit to the Association of $19.27. The five charges included offences in the period ending June 2015, 2016 and 2017. Those three matters have been withdrawn by the police in acceptance of the plea to sequence 1, which I have already outlined, and sequence 5 which was the final year of the period ending 30 June 2018. In that year, there was some 49 invoices that were raised by the accused in relation to receiving over 123,000 head of cattle with branding figures and a discrepancy in those that required branding of 26,441. After reconciliation of 6,120 head a total of 20,321 were said to have been overbranded, relating to a loss to the Association of $12,599.02. The fee structure that was set up meant that the Association charged for each head of cattle that went through. For that fee that was paid for each cattle sold, it included the receipt of the cattle, the corralling of them, the moving them through the stock agents, the positioning to allow for the sale, to allow for buyers to come into the premises, for the weighing of the cattle and then for the role that Mr Jones took on which was the onward distribution. It involved a certain fee that he was paid which was absorbed by the Association for those buyers that wanted to have their cattle branded. When we say branded in this sense, it does not mean in the usual sense, it is a paint that is applied to allow easy distribution and knowledge as to the owners as to which head of cattle were theirs and how they were going to be moved onwards from there. It was a paint brand rather than an actual brand. The allegations themselves relate to Mr Jones indicating that he had branded more cattle than actually he had. It related to an overcharging for that branding. He was paid a certain amount for each head of cattle that he moved and under the pricing structure that he had with the Association an additional amount which varied over the years per cattle that were branded. It is clear from my knowledge of the hearing, and I accept some of the submissions that Mr Donnelly has indicated, that some of the procedures of checking and verifying what Mr Jones said had been branded were lax. It is a situation where he was not under significant scrutiny but it is important to understand that the reason for that was because Mr Jones was in a position of trust to the Association. His role was to deal with the matters and honestly tell the Association how many cattle he had been branding. The fact that there were no checks and balances or insignificant checks and balances in place as to that meant that there was opportunity for Mr Jones or someone in his position to misrepresent how many cattle had been branded and to then overcharge on the invoices that he submitted.
4. I note that Mr Donnelly has disputed some aspects of the Magistrates findings on the basis that they do not reflect the facts that were agreed between the parties. Mr Donnelly says that the agreed facts on which the plea of guilty was entered accepted that the cattle were in fact branded. It was the accountability for the cattle that were branded that the prosecution pursued.
5. I accept that the facts agreed between the parties are the relevant 'acts or omissions giving rise to the offence' for the purposes of this matter: see section 16(2) of the Act.
6. It is common ground that the Applicant complied with the Local Court orders which included the intensive correction orders, 60 hours community service and payment of $12,599.00 in compensation.

The Tribunal's approach

1. The Act regulates the licencing of real estate agents in NSW. The Tribunal has jurisdiction to review a decision of the Respondent to refuse to grant a licence application under section 27 of the Act. This jurisdiction is exercised under the Administrative Decisions Review Act 1997 ("the ADR Act").
2. Section 63 of the ADR Act provides that 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. 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) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34].
3. Under section 28(2) of Civil and Administrative Tribunal Act 2013 ("the 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: section 38(2) of the NCAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issue for determination

1. The Tribunal is to determine whether the correct and preferable decision is to refuse the Applicant's licence application.
2. This determination requires consideration of whether the Applicant is a disqualified person for the purposes of the Act. If so, the Tribunal must also consider whether the Applicant's offences should be ignored, because of the time that has passed since the offences were committed, or because of the triviality of the acts (or omissions) giving rise to the offences. the Tribunal must also consider whether the Applicant is no longer a fit and proper person to hold a licence under the Act.

Relevant legislation

1. A person cannot act or carry on the business of an agent under the Act unless they hold the relevant licence: section 8 of the Act. Section 19 of the Act requires the Secretary to refuse to grant an application unless the applicant is eligible to be granted the licence concerned.
2. Section 14(1) of the Act provides: 14 Eligibility for a licence or certificate of registration (1) An individual is eligible to hold a licence only if the Secretary is satisfied that the individual - (a) … (b) is a fit and proper person to hold a licence and each person with whom the individual is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (c) … (d) is not a disqualified person ...
3. Section 16 of the Act provides: 16 Disqualified persons (1) A person is a disqualified person for the purposes of this 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 Secretary has determined under subsection (2) that the offence should be ignored, or … (2) The Secretary 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. …
4. The Respondent contends that the Applicant is a disqualified person as a consequence of his convictions and that the Applicant is a not a fit and proper person to hold the licence that he is seeking.
5. Section 37 of the Act provides that the regulations may prescribe rules of conduct to be observed in the course of the carrying on of business or the exercise of functions under a licence or certificate of registration. For the purpose of section 37, the applicable regulation is the Property and Stock Agents Regulation 2014 ("the Regulation"). Schedule 1 of the Regulation details the general rules of conduct applying to all agents and assistant agents. Clauses 2 and 3 of Schedule 1 state: 2 Fiduciary obligations An agent must comply with the fiduciary obligations arising as an agent. 3 Honesty, fairness and professionalism (1) An agent must act honestly, fairly and professionally with all parties in a transaction. (2) An agent must not mislead or deceive any parties in negotiations or a transaction. …
6. Section 192E of the Crimes Act 1900 provides: 192E Fraud (1) A person who, by any deception, dishonestly-- (a) obtains property belonging to another, or (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty--Imprisonment for 10 years. (2) A person's obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. (3) A person may be convicted of the offence of fraud involving all or any part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time. (4) A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for the offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.
7. As noted above, after entering a guilty plea, the Applicant was convicted of offences of "Dishonestly obtain financial advantage etc by deception" and he was released subject to a Community Corrections Order ("CCO") for 18 months commencing on 6 December 2021 and an intensive correction order ("ICO") for 12 months commencing on 6 December 2021. Those order have expired without any issues of concern.
8. Section 7(1) of the Crimes (Sentencing Procedure) Act 1999 provides: 7 Intensive correction orders (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community. (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence. (3) This section does not apply to an offender who is under the age of 18 years. (4) This section is subject to the provisions of Part 5. Note - Among other matters, Part 5 provides that a single offence cannot be the subject of an intensive correction order if the imprisonment imposed exceeds 2 years, and that multiple offences cannot be the subject of an intensive correction order or orders if the imprisonment imposed exceeds 3 years.

Fit and proper person

1. As noted, the Respondent contends that the Applicant is not a fit and proper person to hold a licence under the Act. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal.
2. 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. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
3. 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. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ 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.
4. They went on to say at 388: 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.
5. 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 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.
6. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Material before the Tribunal

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act ("the section 58 material"). This material includes records relating to the Applicant's licence application as well as material related to his prosecution, including the relevant Facts Sheet and outcome.
2. The Local Court transcript of the 6 December 2021 hearing before Magistrate Thompson is included in the Respondent's material. Ms Robosa, the Respondent's solicitor, also provided written and oral submissions.
3. The Applicant relies on his own evidence. He attended the hearing gave evidence and was cross-examined. He also relies on a number of character references which appear to have been provided in support of his case in the Local Court. While it is clear that those providing the references were aware of the charges against the Applicant and nevertheless speak highly of him, the references are not addressed to the issues that are before the Tribunal.
4. Mr Donnelly made both written and oral submissions in support of the Applicant's case.
5. The Applicant has indicated that he would agree to a condition on the licence restricting his business to only dealing with livestock. The Respondent does not consent to a conditional licence.

The Respondent's Case

1. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. Its position is that by reason of the offences committed by the Applicant he is a disqualified person and that the offences should not be ignored for the purposes of section 16 of the Act. The Respondent further contends that the Applicant is not a fit and proper person to have a licence under the Act.
2. It is not in dispute that the conduct occurred in the 2014 and 2018 financial years. At the time, the Applicant's company, CKJ Contracting Pty Ltd, was engaged by GSSAA. The Respondent contends that anomalies were found when audits were conducted for the financial year end 2014 and 2018.

Financial year ending 30 June 2014

1. The Respondent submits that CKJ Contracting raised 50 tax invoices for receiving 110,376 head of cattle with branding figures of 45,491 over the previous year with 43,440 requiring branding. It was alleged that CKJ Contracting had invoiced for branding that had not been carried out. When reconciled, the allegation was made of overbranding of head of stock. As a result, GSSAA suffered a loss of profit of $19.27.

Financial year ending 30 June 2018

1. The Respondent submits that CKJ Contracting raised 49 invoices for receiving 123,835 head of cattle with branding figures of 73,838 over the 12 month period. Of these, only 47,397 required branding. After reconciliation, a total of 20,321 were over branded. As a result, GSSAA suffered a loss of profit of $12, 599.
2. The Respondent notes that the offences involved dishonesty and each of the offences carries a maximum penalty of 10 years imprisonment. It is submitted that the Applicant's conduct was not trivial and that in view of the seriousness of the offences, insufficient time has passed to warrant the offences being ignored.

Has enough time passed for the offences to be ignored?

1. In regard to the exercise of the section 16(2) discretion the Respondent relies on the views expressed by the Appeal Panel in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37. The Appeal Panel stated at paragraph [34] 34 … In our view, the construction of s 16(2) exhaustively states the factors to be taken into account in determining whether an offence should be ignored. We note that only two factors are listed: "the time that has passed since the offence was committed", and "the triviality of the acts or omissions giving rise to the offence". In this regard, the provision is different from the relevant legislative provision in [Eleter v Director-General, Department of Fair Trading [2002] NSWADT 138], which, in addition, also lists as relevant factors "the subsequent good behaviour of the offender" and "any other ground prescribed by the regulations". We also note that the wording of s 16(2) - "the triviality of the acts or omissions giving rise to the offence" - invites an examination of the conduct of the person at the time the offence was committed.
2. The Respondent provided a summary of a number of decisions that have considered the issue of whether enough time had passed for the particular offences to be ignored.
3. In the present matter, the Respondent referred to the offences, the court orders and the amount of time that has passed since the offences. Ms Robosa noted: In this matter it is clear that: i. The offence for which the Applicant was convicted on two (2) counts is a serious offence involving dishonesty. ii. He was sentenced to:

• an ICO for 12 months - commencing 06/12/2021 & concluding 05/12/2022
• a CCO 18 months - commencing 06/12/2021 & concluding 05/06/2023 iii. He was ordered to pay compensation in the sum of $12,599.02 for Offence 5. iv. It has been nearly nine (9) years since Offence 1 was committed in June 2014, and nearly five (5) years since Offence 5 was committed in June 2018. v. It has been seventeen (17) months since he was convicted on 6 December 2021.

1. Ms Robosa submitted that the passing of nearly five years since the commission of Offence 5 is insufficient to warrant the exercise of the discretion to ignore the Applicant's serious offence.
2. In regard to the issue of whether the Applicant is fit and proper to be the holder of a licence under the Act, Ms Robosa referred my decision in Rosenstrauss v Department of Finance and Service (NSW) [2012] NSWADT 264 where I considered a number of decisions that have discussed the process of assessment of that issue. At paragraph [72] I referred to views expressed by Judicial member Huntsman, as she then was, in Giri v Roads and Maritime Services [2012] NSWADT 241. At paragraph [38] she stated that it is 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.
3. I also referred to views expressed by Hennessey DP in Saadieh v Director General, Department of Transport [1999] NSWADT 68. At paragraph [17] the Deputy President considered a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. Ms Robosa relies on some of those factors as relevant to the present matter: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
4. In Saadieh Hennessey DP stated at paragraph [18]: 18 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 applicant's circumstances such as increased support from friends, family or professional service providers.
5. The Respondent submits that, despite the guilty plea, the Applicant has not shown contrition or genuine remorse for his conduct. Ms Robosa refers to the Applicant's evidence that the plea of guilty was one of convenience as he could not account for every beast branded even though he maintained that he did the branding. She submits that the Applicant pleaded guilty for reasons other than out of genuine remorse, and his comment demonstrates that he lacks insight into his conduct. Further, she submits that the Applicant has not submitted any evidence of his efforts to put a system in place to ensure that the offences would not recur.
6. The Respondent submits that little weight can be given to the Applicant's references because they do not address the specific charges, the guilty plea, the conviction and the sentenced imposed.
7. The Respondent submits that the Magistrate's findings in relation to the Applicant's conduct should be considered by the Tribunal in determining whether the Applicant is eligible to hold a licence. His Honour stated: In relation to the matters, the significant factor is the breach of trust and it is that breach of trust which in my view means that at least in relation to the second of those matters, the most significant with a loss to the Association of over $12,000, that there is a finding that needs to be made.
8. In relation to the "significant the breach of trust'' His Honour stated: ....His role was to deal with the matters and honestly tell the Association how many cattle he had been branding. The fact that there were no checks and balances or insignificant checks and balances in place as to that meant that there was opportunity for Mr Jones or someone in his position to misrepresent how many cattle had been branded and to then overcharge on the invoices that he submitted. It clearly involved a significant breach of trust, the lack of accountability on behalf of the Association meant that there was opportunity and it provided a way of emboldening Mr Jones to increase the number of cattle that he overcharged for that can clearly be seen between the amounts in 2014 and the amounts in 2018 in the final matter. Whilst the methodology was the same, it is a situation where the ultimate results were significantly different. The amount in relation to the first incident in time and the loss to the Association was only $19. By the end of the fifth year, that loss was in excess of $12,000. in terms of the submissions that are made to me, it is submitted that Mr Jones's moral culpability is low. It is hard to accept that submission. … it is clear that his numbers were more accurate earlier in his time as can be seen from the figures of overcharging in 2014 compared to his later period of time in 2018. It is hard to accept that he would have become more complacent or less accurate over that period of time. … What he relied upon was the lack of accountability and the lack of checks and balances coupled with position of trust that he was in. There clearly is a significant breach of trust. It is a breach of trust to an Association of Stock and Station Agents, it is a breach of trust that was brought about because of his prior good character. He was only placed in that position because of his previous knowledge and his previous good standing in the community. There is no doubt this will have an impact on that.
9. Ms Robosa submits that His Honour found that the offence is serious as reflected in the following findings: 1. The "breach of trust" is "a significant factor" and "the clear dominating factor in relation to the matter". 2. Clearly, a loss of $12,599.02 "is not insignificant. ... It is part of the operations that Mr Jones encountered and, as I said, he was probably emboldened by the lack of checks and balances." 3. That "there is a need for a gaol sentence". "However, the gaol sentence is one that you can serve in the community. It is a situation where I am of the view, but for your plea, that would not have been the case. ... The genuine show of remorse and the payment of the reparation are those things that save you from going into custody on a fulltime basis." 4. That "there is such a need for general deterrence, a message to the community that if you are in a position of trust, you cannot betray that trust, particularly in a fraudulent way".
10. Ms Robosa submits that the question of trustworthiness and honesty is central to real estate work for which the Applicant seeks an authority. She points to the views expressed in Dosovic v Commissioner of Fair Trading [2023] NSWCATOD 58, where Senior Member Little stated at paragraphs [45] - [47]: 45. 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. 46. 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. 47. 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.
11. The Respondent submits that in all the circumstances, insufficient time has passed since the commission of Offence Sequence 5 to warrant the exercise of the discretion to ignore the Applicant's offences. Further, she submits that the Applicant is not a fit and proper person to hold a licence. Accordingly, the Tribunal should affirm the decision to refuse to restore the Applicant's licence under the Act.

The Applicant's Case

1. The Applicant relies on his own evidence. As noted, he was issued with a licence in June 2017, and he has renewed it every year. He said that he has never used the licence to practice under the Act. When he applied for the renewal which is the subject of these proceedings, it was rejected.
2. It is not in dispute that the Applicant was convicted of offences of "Dishonestly obtain financial advantage etc by deception". His evidence is that he has complied with all his obligations since the Court's decision, and he paid the compensation as ordered.
3. He provided an Affidavit in which he outlined the work that he had performed under the contractual arrangement between CKJ Contracting and the GSSAA.
4. The contract involved employing stockmen to handle cattle at the saleyards, accepting arrivals of cattle for sale days, branding them after sale (paint dip mark) and loading them for delivery by transport to owners. The Applicant only branded what he thought needed to be branded, which represented a percentage of cattle at every sale. He branded the cattle while they were on the scales to identify cattle for the owners and to see that they were placed in the correct pens, identifying the owners for delivery. Cattle were branded for identification purposes and there was an interval of only 15-20 seconds before the next lot were called entering the scales yard.
5. There was no room for error in the branding as any mix-up with cattle could result in cattle being transported on the wrong truck. The contract remained in force for 13 years without complaint about branding or mix-ups. He was not ever approached by the GSSAA about over branding cattle.
6. The Applicant provided evidence in regard to his invoicing and accounting practices. He also referred to a number of other organisations with which he is involved and he has dealt with accounts, fees and banking, all without any complaint about financial matters or any wrongdoing.
7. He said that he believes that he is a fit and proper person to hold a licence.
8. As noted, Mr Donnelly provided written and oral submissions on the Applicant's behalf. He explained that the convictions were based on a plea of convenience after an approach by the prosecution about the defence being unable to adequately show the number of cattle branded for buyers during the year end 2017/2018.
9. Mr Donnelly submitted that subsections 16(1)(a) and (2) of the Act call for consideration of the factual circumstances of the case leading to the convictions. Mr Donnelly submitted that the facts and circumstances of the offending must be considered and understood before determination of an administrative review. That is, the facts and circumstances of the branding must be considered.
10. The Applicant was liable for damages if there was a mix-up. Throughout the whole process of branding and delivery of cattle over 13 years there has never been a complaint or a mix-up with cattle on the wrong truck.
11. A branding fee was applied to every buyer of cattle at a sale. The fee is applied whether they had their cattle branded or not, and that fee was included in the $1.50 transport fee, from which the GSSAA received a benefit.
12. Prior to submitting an invoice, all agents and the Applicant met with the secretary/manager to compare cattle numbers and owners, at an after-sale meeting. That was the normal process to check statistics and buyers. The follow up was preparing the invoice. All cattle delivered and branded, the number and the cost, was clearly displayed on every invoice for the secretary/manager's perusal and payment.
13. The Applicant submitted the invoices to GSSAA in the time required and the secretary/manager would verify the invoices against the number of cattle branded and the number delivered, to detect irregularities.
14. Mr Donnelly submitted that the contention that the Applicant is not a fit and proper person is without foundation. It is not in dispute that the Applicant has no previous convictions, with no blemishes on his character, except for the present matters. There was never a complaint about the Applicant's branding process.
15. Mr Donnelly submitted that the Applicant's conduct exhibited over a period of time shows good character and repute and he is a fit and proper person to hold a licence.
16. Mr Donnelly further submitted that the circumstances of this matter are exceptional and there is no comparison between the Applicant's case and the decisions on which the Respondent relies.
17. With respect to the guilty plea, Mr Donnelly said that the decision was taken that accounting for every beast branded would be impossible. The Applicant's records were electronically recorded. After attending a 'paperless society' seminar, he adopted a practice of transposing the numbers of cattle branded onto the MYOB database for record purposes, and he did away with the tally books. The secondary evidence of the MYOB data printouts, where the exact numbers were accounted for, was inadmissible without the primary evidence of the tally books.
18. Mr Donnelly submitted that it is an invaluable lesson to maintain original records and not tend towards a paperless society. If the Applicant had kept his tally books, he would have been able to show the cattle numbers that he had branded.
19. Even if only 20 beasts remained unaccounted for, the Applicant would still have been found guilty. The plea was one of convenience to avoid a more serious penalty. The guilty plea was accepted by the prosecution in full satisfaction to sequences 1 and sequence 5.
20. Mr Donnelly submitted that the Applicant showed remorse and contrition in the plea and by agreeing to reparation.
21. In regard to the penalty that the Court imposed, the Applicant showed remorse by early completion of the community service work hours. The 60 hours community service work was completed in three months and compensation was paid within a week. There were no offences or breaches of the law committed at any time during the correction order periods and supervision by Corrective Services was suspended within an extremely short period of time as the Applicant was such a low risk of ever offending. Therefore, it was considered that supervision was unnecessary.
22. It is not in dispute that the offence committed in the financial year ending June 2014 involved a financial advantage of $19.27. It is over 9 years since that offence. Mr Donnelly submitted that the offence could not be otherwise than trivial and should be ignored.
23. The second offence involved a financial advantage of $12,599.02. That offence was for the financial year ending June 2018. Mr Donnelly submitted that there is no difference in the factual circumstances between the offences concerning the branding process. Mr Donnelly submitted that the section 16(2) consideration of whether sufficient time has passed for the offence to be ignored is based on the facts and circumstances of the offending. He said that the agreed facts sheet shows that the cattle had been branded. It was the accountability for the cattle that were branded that the prosecution pursued. He said that while it was alleged that the Applicant had invoiced for branding more cattle than he had actually branded, that allegation is contrary to the agreed facts which relate to overcharging for actual branding. That is, the agreed facts did not relate to the issue of intent to defraud by not branding the cattle.
24. Mr Donnelly submitted that these matters effect the objective seriousness of the offences.
25. Mr Donnelly submitted that the Applicant has shown he is trustworthy, reliable, honest and a man of integrity. He has no prior convictions, and he held a licence under the Act from 2017. The Application for renewal of his licence is to advance and enhance his family future with livestock work, by his advanced knowledge of the cattle industry.
26. The Applicant says that he is a fit and proper person to hold a licence and worthy of having his licence restored to allow him to deal with livestock.
27. Accordingly, he submits that the decision under review officer should be set aside, and the licence granted.

Discussion

1. The Applicant's conviction is not in dispute. Section 16 of the Act provides that a person is a disqualified person for the purposes of this Act if the person has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years. However, subsection 16(2) provides that the offence can be ignored because of either 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.
2. Triviality and passage of time are alternatives and do not need to be established cumulatively in order for the offences to be ignored: Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79 at paragraph [47].
3. Subsections 16(1) and 16(2) of the Act have been considered in a number of cases before the Tribunal. The Appeal Panel of the Administrative Decisions Tribunal in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor held at paragraph [34] that: "the wording … 'the triviality of the acts or omissions giving rise to the offence' - invites an examination of the conduct of the person at the time the offence was committed."
4. In Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 at paragraph [57] Senior Member Eisenberg held: "The word 'triviality' may relate to the amount of money involved in the offences the subject of the convictions. However, it may also relate to the substance of the offences and whether the relevant acts were carried out on the spur of the moment or involved planning".
5. In Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 17 Senior Member Dinnen stated: 15 The term 'disqualified person' is defined by the Act in s 16(1)(a) as being a person who "has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years...". Whilst there is no definition of 'offence involving dishonesty' within the Act, the view of the Tribunal has been that its meaning must be determined by the process of statutory consideration: Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23, ('Farah') at [21]. The "primary object of statutory construction" is to construe a provision so that "it is consistent with the language and purpose of all the provisions of the statue": Farah at [22], citing Project Blue Sky v The Australian Broadcasting Authority (1998) 194 CLR 355 at 69. 16 In Farah the Appeal Panel made the following observations: [31] "To be an "offence involving dishonesty" the relevant statutory provision does not have to contain the word "dishonest" or "dishonesty". Examples of offences which come within the ordinary meaning of dishonesty offences are stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud: Barber v Law Society of NSW (No 2) [2001] NSWSC 361 at [32]. Perjury is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 668-669; Doja v R [2009] NSWCCA 303 at [174]-[179]. [32] In Kortman and Attorney-General's Department [2010] AATA 1074 (22 December 2010) the Administrative Appeals Tribunal decided that an offence of obtaining a financial advantage was an offence involving dishonesty." 17 In Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 the Tribunal found that the offence of dishonestly obtain financial advantage by deception pursuant to s 192E of the Crimes Act 1900 is an "offence involving dishonesty" within s 16(1)(a) of the Act. 18 The disqualification under section 16(2) of the Act is a mandatory one, there being no discretionary power such as in relation to 'fitness and propriety' grounds where an Applicant can provide evidence as to their character and reputation. There are only two specific grounds under which the dishonesty offence can be ignored for the purpose of determining if an Applicant should be granted a licence or certificate: because of the triviality of the acts or omissions giving rise to the offence; and because of the length of time that has passed since the offence was committed. 19 ... The period of time sufficient to warrant an exercise of the discretion to ignore an offence, must be viewed in the context of the offence for which an Applicant has been convicted: Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [52], citing Wilson v Commissioner for NSW Fair Trading [2014] NSWCATOD 79 at [25], and Bek v Commissioner for Fair Trading [2004] NSWADT 149 at [47]. The appropriate length of time to have passed before the discretion is exercised also depends on the triviality and nature of the acts or omissions: Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 at [21].
6. The decision in Farah was applied by the Appeal Panel in Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23. At paragraph [34], the Appeal Panel stated: 34. … the approach adopted by the Appeal Panel in Farah, from which the following propositions can be derived: 1. An "offence involving dishonesty" does not require that the relevant statutory provision contain the word "dishonest" or "dishonesty" (examples being stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud); 2. an offence involving dishonesty does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence; 3. it is the offence itself that must involve dishonesty, and it is not permissible to look behind a conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant, and those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest.
7. On the material before me I am satisfied that the offence for which the Applicant was convicted was an "offence involving dishonesty" for the purposes of section 16(1) of the Act. The Applicant is therefore a disqualified person for the purposes of the Act unless it is determined under subsection 16(2) that the offence should be ignored.
8. As I have noted above, the Applicant was convicted in relation to two offences - Offence Sequence 1 and Offence Sequence 5.
9. It is not in dispute that the acts giving rise to Offence Sequence 1 occurred over 9 years ago. On the material before me I am satisfied that this offence can be ignored because of the time that has passed since the offence was committed. It is not necessary that I consider whether the offence can be ignored because of the triviality of the acts or omissions giving rise to the offence.
10. As noted, Offence Sequence 5 resulted in a loss of profit to the GSSAA of $12,599.02. I note the submissions that Mr Donnelly has made in regard to the need to consider the facts and circumstances of the offending and that this includes consideration of the facts and circumstances of the branding. I accept that there is no difference in the factual circumstances between Offence Sequence 1 and Offence Sequence 5. The Applicant did not change his mode of operation between the financial years. I also accept that the agreed facts agreed that the cattle for which the Applicant had charged were in fact branded.
11. Ms Robosa has pointed to the Magistrate's finding that there was a breach of trust by the Applicant and that it was a significant factor in the offence. The Magistrate also found that a loss of $12,599.02 was "not insignificant". His Honour also accepted that the Applicant had shown genuine remorse and made a payment in reparation. He nevertheless considered that there was a need for "general deterrence, a message to the community that if you are in a position of trust, you cannot betray that trust".
12. In the circumstances, it is my view that this is not an offence that can be ignored because of the triviality of the acts giving rise to the offence. I find that the acts giving rise to the offence were not trivial, having regard to the conduct of the Applicant at the time the offence was committed. I agree with Magistrate Thompson that the Applicant was in a position of trust and breached that trust by failing to properly account for the payment that he was entitled to receive. That finding by the Magistrate is not altered by the agreement that the Applicant had branded all the cattle.
13. It is therefore necessary to consider whether the offence should be ignored on the basis of a passage of time. It is now over five years since the offence was committed. In the Respondent's submission, insufficient time has passed since the offence was committed to allow the offence to be ignored.
14. I have been referred to a number of decisions in which the issue of whether sufficient time had elapsed to warrant a decision to ignore an offence. However, as is apparent from the decisions, the period of time sufficient to warrant an exercise of the discretion to ignore the offence must be viewed in the context of the offence. Sufficiency of time is linked to the circumstances peculiar to the Applicant's offence.
15. The circumstances of this matter are unusual. They do not involve a pre-meditated misappropriation of funds as was the case in several of the matters to which I have been referred. The Applicant has an otherwise unblemished record. However, the Magistrate found that he relied upon the lack of accountability and the lack of checks and balances coupled with his position of trust.
16. It is clear from the views expressed by the Appeal Panel in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor that the subsequent good behaviour of the Applicant is not a relevant consideration.
17. The conduct occurred over a financial year. The invoices that were submitted were spread over the 2017/2018 financial year. Almost five and a half years has passed since the last of the offending invoices were submitted, and almost six and a half years since the first of the invoices was submitted. In my view, this is a matter in which the amount time that has passed is sufficient to allow the discretion provided for in subsection16(2) to be exercised in the Applicant's favour.
18. I therefore exercise the discretion under subsection 16(2) of the Act to determine that the dishonesty offence committed by the Applicant should be ignored for the purposes of section 16.

Is the Applicant a fit and proper person to hold the licence that he is seeking?

1. The Respondent contends that the Applicant is not a fit and proper person to hold the licence that he is seeking. The Respondent's position is related to the offences for which he has been convicted.
2. As I have noted above, the Magistrate Thompson made a positive finding that the Applicant is a person of excellent character and that he is unlikely to reoffend. The Magistrate stated: Mr Jones comes before the Court as a person of excellent character. There are a number of references before the Court that I take into account. Those relate not only to people but speak of his work ethic but also speak about him personally, the support that he has given to individuals that have gone through hardship and I note that he has now taken on a position of responsibility again where he is entitled and placed in a position of trust. He is a person of excellent character. I can make a positive finding that he is unlikely to reoffend.
3. I note the Magistrate's emphasis on the Applicant's breach of trust. I also note and agree with the view expressed by Senior Member Little in Dosovic that integrity, honesty and trustworthiness are central to the certification and licensing regime for persons engaged in the real estate industry in NSW. I am satisfied that the Applicant is able to meet that high standard, notwithstanding his offences.
4. As noted above, the Respondent submits that, despite the guilty plea, the Applicant has not shown contrition or genuine remorse for his conduct. In regard to that issue, I note the views expressed by Senior Member Walker in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at paragraphs [62] - [64]: 62. Those conclusions have a bearing on the respondent's next ground under s 11(3)(a), the applicant's apparent lack of remorse over his actions towards Fiona in 1994 and his maintained denial that certain events found by the courts to have occurred actually happened. That attitude becomes more comprehensible, however, given the doubts that attend some of the courts' findings. 63. Further, in such cases, attaching substantial weight to lack of remorse can be somewhat problematical. Unfortunately, it is not unknown for a person to be inappropriately sentenced or wrongly convicted. In some instances people have pleaded guilty to offences they did not commit, sometimes as a result of pressure. In a Migration Act case in the federal Administrative Appeals Tribunal, I made this observation: "My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender's record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim": Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, [101]. 64. As far as I know that proposition has never been rejected or criticized by any court or tribunal. ...
5. In the present matter it seems that the Applicant's guilty plea was entered when it became apparent that he could not prove his defence. That in turn was a result of his practice of operating paperless office. He had relied on records that he maintained in the MYOB database and did not keep the original tally books. The MYOB database records were inadmissible without the primary evidence of the tally books. I cannot assess whether there might have been a different outcome if the original tally books had been available. However, in the circumstances I agree with Magistrate Thompson's view that the Applicant "is a person of excellent character" and that "he is unlikely to reoffend". The issue whether or not the Applicant has shown contrition or genuine remorse does not alter that view. In any event, the Magistrate specifically referred to the Applicant's "genuine show of remorse".
6. I agree with Magistrate Thompson's view. With the exception of the offences discussed above, there is no other basis on which I could form the view that the Applicant should not be held out to the public as a person who is suitable to hold the licence that he is seeking.
7. I am satisfied that the Applicant is a fit and proper person to hold a Class 1 agent - Real Estate - Sales or Leasing and Class 1 agent - Stock and Station licence under the Act.
8. It follows, in my view, that the decision under review should be set aside. In it's place the decision should be made that the licence is granted.

Orders

1. The decision under review is set aside.
2. The decision is made that the Applicant's application to renew his Class 1 agent - Real Estate - Sales or Leasing and Class 1 agent - Stock and Station licence is granted. 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: 17 November 2023