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[2010] WASAT 38
General information, not legal advice.
State Administrative Tribunal (WA)
2010-03-23
Judge J
Original judgment source is linked above.
ACT : LAND VALUERS LICENSING ACT 1978 (WA)
CITATION : LAND VALUERS LICENSING BOARD and NEVERMANN [2010] WASAT 38
Land valuers - Disciplinary proceedings - Unfit to hold a licence - Conviction for creating a false belief - Lack of honesty - Honesty an essential attribute of a land valuer
Land Valuers Licensing Act 1978 (WA), s 19, s 22(1), s 23, s 27, s 28, s 28(1), s 28(2), s 28(2)(a), s 28(2)(b), s 28(2)(c), s 28(2)(d), Pt III, Pt IV
Cause exists for disciplinary action against the respondent
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25
Evans and Settlement Agents Supervisory Board [2008] WASAT 121
Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357
Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179
Maxwell v Dixon [1965] WAR 167
R v Neal, Regos and Morgan [1947] HCA 19; (1947) 74 CLR 613
Real Estate and Business Agents Supervisory Board v Landa [2009] WASCA 191
Sobey v Commercial & Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
The Registrar, Real Estate and Business Agents Supervisory Board and Anor v Barnett (unreported, Full Ct of WA, 26 August 1997, Lib No. 970426)
1 The Land Valuers Licensing Board brought an application to the Tribunal pursuant to s 27 of the Land Valuers Licensing Act 1978 (WA) alleging that there was proper cause for disciplinary action against Mr Maxwell John Nevermann. The Board relied on two alternative bases for this contention. First, it alleged that Mr Nevermann was unfit to hold a licence because of his conviction in 2007 of a charge of creating a false belief. In the alternative, the Board argued that aspects of Mr Nevermann's conduct since 1987 rendered him unfit to hold a licence.
2 The Tribunal found that honesty is an essential attribute for a land valuer. By making false statements to police in order to create a false belief, Mr Nevermann behaved dishonestly, and did so for financial gain. The Tribunal therefore found that as a result of his conviction in 2007 for creating a false belief, a cause exists that renders Mr Nevermann unfit to hold a land valuer's licence. Despite some evidence of Mr Nevermann's good character, the Tribunal was not satisfied that Mr Nevermann has the personal attribute of honesty which is required to be a land valuer, particularly in view of the period of time since the 2007 conviction and the Tribunal's finding that Mr Nevermann had not demonstrated an insight into, and an acceptance of his culpability for, his conduct.
3 In view of this conclusion it was not necessary for the Tribunal to consider the alternative basis on which disciplinary action was pursued by the Board.
4 The Tribunal indicated that it would hear from the parties in respect of any action which should be taken against Mr Nevermann in view of its finding that he was unfit to hold a licence.
5 Mr Nevermann is the director and licensee of National Property Valuations Pty Ltd, a company which conducts valuations of both residential and commercial property. Mr Nevermann was granted a land valuer's licence in August 1987 and has held a licence continuously since then, apart from a period of 12 weeks commencing on 12 October 2007 during which his licence was suspended following disciplinary proceedings in the Tribunal.
6 The present application was brought by the Land Valuers Licensing Board pursuant to s 27 of the Land Valuers Licensing Act 1978 (WA) (LVL Act). That section permits the Board to allege to the Tribunal that there is proper cause for disciplinary action, as mentioned in s 28(2) of the LVL Act, against a valuer. The Board alleges that there is proper cause for disciplinary action against Mr Nevermann on the basis that a 'cause exists that renders him unfit to hold a licence', pursuant to s 28(2)(d) of the LVL Act.
7 The Board relies on two alternative bases for its contention that Mr Nevermann is unfit to hold a licence. First, the Board relies on the fact that on 19 April 2007 Mr Nevermann was convicted of a charge of creating a false belief, contrary to s 171(2) of the Criminal Code (the 2007 conviction). The Board says that the conduct which gave rise to the 2007 conviction is sufficient, of itself, to support the conclusion that Mr Nevermann is unfit to hold a licence.
8 Alternatively, the Board says that Mr Nevermann's conduct since August 1987, and in particular five aspects of his conduct, renders Mr Nevermann unfit to hold a licence. First, the Board relies on the 2007 conviction. In addition, the Board points to the fact that Mr Nevermann was convicted of indecent assault in 1989, and of a breach of a restraining order in 1999. Finally, the Board points to conduct by Mr Nevermann which led to two sets of disciplinary proceedings against him in 2006 and 2007. In 2006, the Tribunal found that Mr Nevermann had been negligent contrary to s 28(2)(b) of the LVL Act (2006 disciplinary proceedings). In 2007 the Tribunal found that Mr Nevermann had been negligent and that he had contravened the Land Valuers Code of Conduct (Code of Conduct), contrary to s 28(2)(b) and s 28(2)(c) of the LVL Act (2007 disciplinary proceedings).
9 Mr Nevermann says that the 2007 conviction does not render him unfit to hold a licence. He takes a different view of the meaning of s 28(2)(d) of the LVL Act from that which is advanced by the Board.
10 As to the alternative basis for the Board's application, Mr Nevermann says that the conduct relied on by the Board does not render him unfit to hold a licence under s 28(2)(d) of the LVL Act. Mr Nevermann relies on a variety of arguments for this contention. In addition to arguments concerning the construction of s 28(2)(d) of the LVL Act, Mr Nevermann also relies on arguments of estoppel and res judicata. Mr Nevermann contends that the Board should not be permitted to rely on the conduct which was the subject of the 2006 and 2007 disciplinary proceedings, and that the Tribunal should not take into account conduct for which Mr Nevermann was convicted and sentenced by the District Court and Magistrates Court. He also alleges delay by the Board in bringing these proceedings and submits that having regard to that delay, the Tribunal should exercise its discretion to dismiss the application.
The nature of the proceedings and the evidence before the Tribunal
11 The Board's application comes within the Tribunal's original jurisdiction. The Tribunal is required to deal with the application in accordance with the State Administrative Tribunal Act 2004 (SAT Act) and with the LVL Act. Our role is to determine whether we are satisfied that proper cause exists for disciplinary action against Mr Nevermann, pursuant to s 28 of the LVL Act.
12 The parties filed statements of issues, facts and contentions. The Board filed a book of documents relating to Mr Nevermann's licence history, which contained details of his criminal convictions and of the 2006 and 2007 disciplinary proceedings. In response to Mr Nevermann's contention that there had been a delay in bringing the present application, the Board also provided a witness statement from Mr O'Reilly, an officer of the Department for Consumer and Employment Protection. Mr O'Reilly gave evidence as to when the Board became aware of Mr Nevermann's prior convictions, and the action it took once it received that information.
13 Mr Nevermann filed a witness statement in these proceedings. The annexures to that witness statement included three references from licensed valuers.
14 Mr Nevermann also filed two books of documents containing documents relevant to the 2006 and 2007 disciplinary proceedings, a character reference provided by Mr Jason Field, a licensed valuer, and a bundle of email correspondence, which had been deidentified, but which was apparently sent by clients expressing their appreciation for Mr Nevermann's valuation services.
15 Mr Nevermann gave evidence and was cross examined. One of his referees, Mr Field, also gave evidence and was cross examined.
16 These reasons for decision address the following matters:
(2) There shall be proper cause for disciplinary action if
(a) the licensed valuer improperly obtained a licence;
(b) the licensed valuer has been guilty of negligence or incompetence in making a valuation of land;
(c) the licensed valuer is acting or has acted in breach of the licensed valuers code of conduct; or
(d) any other cause exists that renders the licensed valuer unfit to hold a licence.
18 Mr Nevermann submits that no cause exists that renders him unfit to hold a licence, having regard to the proper construction of the words in s 28(2)(d) of the LVL Act. The key issue which emerged in relation to the construction of s 28(2)(d) concerned whether the 2007 conviction, or Mr Nevermann's conduct since August 1987, were relevant to the question whether he was 'unfit' to hold a licence.
19 That issue raises for consideration the criteria which are relevant to whether a person is 'unfit' to be a licensed valuer. Mr Nevermann submitted that the word 'unfit' focused attention on a person's work as a land valuer, and encompassed consideration of a valuer's technical capabilities, their record as a land valuer, and how they are seen by their peers in terms of their capacity as a land valuer, but that the meaning of the term 'unfit' did not go beyond this. We are unable to accept that argument having regard to:
(a) the ordinary and natural meaning of the words in s 28(2)(d), construed in their context;
(b) the interpretation of similar phrases in other disciplinary and licensing contexts; and
(c) our rejection of other construction arguments relied on by Mr Nevermann.
20 We are unable to see anything in the ordinary and natural meaning of the words in s 28(2)(d) which supports the conclusion that only events or conduct arising from a person's work as a land valuer may be relied upon to indicate whether the person is 'unfit' to work as a land valuer.
21 The word 'cause' is defined in the Shorter Oxford English Dictionary to have several alternative meanings. One is 'that which produces an effect or consequence; an antecedent or antecedents followed by a certain phenomenon'. This is the meaning which counsel for Mr Nevermann urged us to adopt. He submitted that s 28(2)(d) requires that there exist a specific action or conduct which produces the effect of a person being 'unfit' to hold a licence. His concern was that s 28(2)(d) should not be construed as giving rise to a general assessment of whether a valuer is a person of good character and repute, without reference to specific actions or conduct which lead to unfitness.
22 The word 'cause' also means 'a fact, circumstance, or consideration which moves a person to action; ground for action, reason, motive'. Having regard to the context in which it is used, the latter meaning is the more apt. Paragraphs (a) (c) of s 28(2) set out a variety of grounds or reasons which may be the basis for disciplinary action, and s 28(2)(d) encompasses other grounds or reasons which render a licensed valuer unfit to hold a licence.
23 The ordinary and natural meaning of the word 'unfit', as it is defined in the Shorter Oxford English Dictionary, is, in relation to a person, 'not fitted, qualified, or worthy; incompetent'. Three observations can be noted about the use of the word 'unfit' in s 28(2)(d). The first is that 'unfit' is clearly a word of very broad meaning. Terms such as 'fit' or 'fit and proper' have been viewed as providing the widest scope for judgment as to a person's fitness to work in a particular industry or profession: see Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156 (Dixon CJ, McTiernan and Webb JJ).
24 At the same time, however, the word 'unfit' is a relative term. That is, the question of fitness cannot be considered in isolation, but rather will be drawn from the statutory context, from the activities in which valuers are engaged, and by the purposes to be served by those activities: cf Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 (Toohey and Gaudron JJ) and Sobey v Commercial & Private Agents Board (1979) 22 SASR 70 at 74 (Walters J). Those matters will provide an indication of the personal attributes, abilities or knowledge which are required in order to be a valuer. A judgment may then be made as to whether there exists grounds for the conclusion that a person does not have the attributes, abilities or knowledge required to be a valuer. Conduct engaged in by a valuer in his or her professional capacity may indicate whether that person has the attributes, abilities or knowledge required to be a valuer. So too may conduct engaged in by a valuer in his or her personal capacity.
25 The breadth of the matters which may be taken into account under s 28(2)(d) is confirmed by the presence of the words 'any other cause exists' (emphasis added). Those words appear intended to encompass any ground or reason which may render a person unfit to hold a licence. Their presence militates against the conclusion that only 'causes' arising from the work of the valuer may be relied upon.
(b) The interpretation of similar phrases in other disciplinary contexts
26 The test of whether a person is rendered 'unfit' to hold a licence is not materially different from the test of whether a person is a 'fit and proper' person to hold a licence. In the application of tests such as whether a person is 'fit' or 'fit and proper' in other licensing and disciplinary contexts, it has been accepted that it is not necessary to look only to matters arising under the provisions of the Act in question, provided that weight is given only to those matters that can fairly be seen to be relevant to the vocation or occupation in issue: Maxwell v Dixon [1965] WAR 167 at 169 (Hale J) (referred to with approval in The Registrar, Real Estate and Business Agents Supervisory Board and Anor v Barnett (unreported, Full Ct of WA, 26 August 1997, Lib No. 970426) at 45 (Kennedy J, Parker J agreeing)).
27 In this respect, we note that s 103(2)(d) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) is in similar terms to s 28(2)(d) of the LVL Act. In Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179 the Court of Appeal considered the test of whether a person is 'unfit' to hold a licence under s 103(2)(d) of the REBA Act. The Court equated that test with the test of whether that person is a 'fit and proper' person to hold a licence and accepted that personal misconduct may be relevant in making that assessment. At [71] [73] Newnes JA (with whom McLure JA and Pullin JA agreed) observed:
While it must be recognised that there is a real distinction between professional misconduct and personal misconduct on the part of a professional, where the question is whether a person is a fit and proper person to hold a licence to carry on an occupation of the present kind, it is plainly not the case that the only relevant conduct is conduct which occurs in the course of carrying on the occupation. Where the line is to be drawn between conduct that is relevant and conduct that is not will depend upon the circumstances of the particular case. It will not always be clear-cut.
The High Court pointed out in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 in relation to a solicitor:
The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise [20].
In determining whether a person is a fit and proper person to hold a licence, conduct will be relevant if, although it did not occur in the ordinary course of carrying on the occupation, it is sufficiently closely connected to the occupation or it manifests the presence or absence of qualities which are incompatible with, or essential for, the carrying on of the occupation... [citations omitted].
28 We note that counsel for Mr Nevermann did not concede that being 'unfit' involved not being a fit and proper person. However, he accepted that considerations relevant to whether a person is a 'fit and proper person' in other similar contexts may be relevant to whether a person is 'fit' to hold a licence as a valuer.
(c) Other arguments in relation to the construction of s 28(2)(d)
29 Counsel for Mr Nevermann advanced three other arguments in support of his contention that conduct outside a valuer's work cannot render a valuer unfit to hold a licence. First, counsel for Mr Nevermann submits that s 28(2)(d) has to be considered in its context within s 28(2) of the LVL Act, and that the ejusdem generis rule of construction applies so that the general words in s 28(2)(d) are constrained by the specific words in s 28(2)(a) (c). That is, he submits that s 28(2)(a) (c) establish a genus of matters, namely conduct occurring in a valuer's professional capacity. He submits that the general words in s 28(2)(d), namely the reference to 'any other cause', must be read down so as to be limited to the genus established in s 28(2)(a) (c). We do not agree. The prerequisite for the application of the rule is that the legislation establishes a genus. To do so, the specific things referred to must have some common and dominant feature: R v Neal, Regos and Morgan [1947] HCA 19; (1947) 74 CLR 613 at 624 (Latham CJ). We do not consider that the matters referred to in paragraphs (a) (c) establish a genus of matters. In particular the conduct referred to in s 28(2)(a) will not occur in the course of a valuer's work, but rather seems most likely to be committed in the course of an application for a licence, and thus before a person is licensed as a valuer, for example if an applicant for a licence fraudulently represented that he or she held the educational qualifications set out in s 19(b) of the LVL Act.
30 Secondly, counsel for Mr Nevermann submits that the judgment of McLure JA (as she then was) in the Court of Appeal in Real Estate and Business Agents Supervisory Board v Landa [2009] WASCA 191 at [20] provides support for his contention that s 27 and s 28 of the LVL Act are directed to the conduct of valuers in their professional capacity. In Landa the Court was considering an appeal against orders made by the Tribunal pursuant to s 103(1) of the REBA Act. The terms of s 103 of the REBA Act are similar to those in s 28 of the LVL Act and the terms of s 103(2)(d) are almost identical to s 28(2)(d) of the LVL Act. One of the issues on the appeal was the scope of s 103(2)(d) and in particular whether that paragraph was intended to be the source of a power to impose a global penalty for multiple breaches of the REBA Act. In considering that question, Justice McLure observed:
Prima facie, the word 'other' in par (d) means other than the causes specified in pars (a) to (c) of s103(2). However, it is unnecessary to determine whether individual causes under par (a) - (c) can form the factual foundation for a single proper cause under par (d). Assuming without deciding that they can, par (d) is very confined in its scope. In effect it requires proof of conduct that would, having regard to s27 of the Act, require or at least justify cancellation of the licence ... . It is difficult to see why, if a global penalty is permissible, it would be limited to the circumstances in par (d).
31 It is clear that her Honour was not dealing expressly with the question whether personal misconduct as well as professional misconduct would render a person 'unfit' to hold a licence under s 103(2)(d). To the extent that Justice McLure alluded to the possibility that conduct of the kind described in paras (a) (c) might render a person unfit to hold a licence under para (d), her Honour assumed that possibility but did not determine the question. Nothing in her Honour's observations precludes the conclusion in the present context that conduct outside a person's work as a valuer may provide a basis for a finding that a valuer is unfit to hold a licence.
32 Thirdly, counsel for Mr Nevermann submits that the words in s 28(2)(d) have a temporal aspect, namely that the conduct relied upon as establishing the 'unfitness' must exist at the time the Tribunal considers the question. He submits that neither the 2007 conviction, nor Mr Nevermann's conduct since August 1987, constitute conduct which presently renders Mr Nevermann unfit to hold a licence.
33 The state of unfitness to hold a licence must exist at the time that the Tribunal deals with an application under s 27, in order for the Tribunal to be able to act under s 28(1) of the LVL Act. However, the conduct which gives rise to that unfitness may be conduct which occurred in the past, if that conduct suggests that the valuer does not have the attributes, abilities and knowledge required to be a valuer. Action may be taken by the Tribunal under s 28(1) of the LVL Act if that deficiency continues to exist at the time the Tribunal hears the application brought by the Board under s 27 of the LVL Act.
34 Counsel for Mr Nevermann accepted that on the construction he advanced, s 28(2) was an unusual provision in that it does not address conduct outside the professional conduct of a valuer. However, he submitted that when the LVL Act was enacted a more relaxed standard applied in considering whether disciplinary action should be taken, and that that approach can be contrasted with more modern standards adopted in disciplinary legislation. Counsel did not point to any evidence or authority in support of that submission. In our view the submission is not consistent with the terms or purpose of the LVL Act.
35 In summary, therefore, a cause which renders a valuer unfit to hold a licence under s 28(2)(d) of the LVL Act need not be confined to conduct occurring in the course of a valuer's work. The question in each case is whether the conduct suggests that the valuer is a person who does not have the attributes, abilities or knowledge necessary to be a valuer.
Honesty: an essential attribute for a valuer under the LVL Act
36 As we have already noted, the attributes, abilities and knowledge required to be a valuer under the LVL Act may be discerned from the statutory context, from the activities in which valuers are engaged, and from the purposes to be served by those activities.
37 Valuers licensed under the LVL Act conduct valuations of land which are relied upon by vendors and purchasers of land, by parties who lend money for which land is offered as security and by courts and tribunals in disputes concerning the value of land, to provide but a few examples. Having regard to the value of land as a commodity, the significance of transactions relating to land to the individuals concerned in those transactions, the importance to the economy of transactions relating to land, and the need for certainty and stability in those transactions, it is essential that the community can confidently rely on valuations of land provided by land valuers. For that reason, members of the community need to have confidence that land valuers will be sufficiently educated and experienced, and persons of honesty and integrity, so that their opinions can be relied upon without further inquiry. The LVL Act recognises this by prohibiting persons from acting as land valuers unless they are licensed (s 23), by requiring valuers to meet standards of good character, education and experience in order to be licensed (s 19) and by enabling sanctions to be imposed to discipline valuers whose conduct demonstrates they do not have the attributes, abilities and knowledge required to be a valuer (s 27 and s 28).
38 It is apparent from this brief consideration of the statutory context, and of the activities, and role, of land valuers, that whatever other personal attributes, abilities and knowledge may be required, honesty is one of the essential attributes of a land valuer under the LVL Act.
39 We note that this conclusion is consistent with the view expressed by High Court that the word 'fit' with respect to an office involves honesty as well as knowledge and ability: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at 156 (Dixon CJ, McTiernan and Webb JJ, citing Coke.)
40 For the reasons set out below, the present case can be resolved by determining whether the conduct relied upon by the Board as the basis for disciplinary action suggests that Mr Nevermann has demonstrated a lack of the honesty required to be a valuer under the LVL Act.
41 In view of the approach we have taken it is not necessary for us to deal specifically with an argument advanced by counsel for the Board, to the effect that the test of 'unfitness' in s 28(2)(d) encompasses a consideration of one of the criteria for the grant of a licence under s 19 of the LVL Act, namely whether a person is of 'good character and repute'.
In view of the 2007 conviction does a cause exist that renders Mr Nevermann unfit to hold a licence pursuant to s 28(2)(d) of the LVL Act?
(a) The circumstances leading to the 2007 conviction
42 On 19 April 2007 Mr Nevermann pleaded guilty to a charge of creating a false belief. He was fined $1,500 for that offence. The transcript of the proceedings before the Magistrate's Court on 19 April 2007 was amongst the materials before us. The statement of material facts provided to the Court by the prosecution at the time of the plea contained the following facts.
43 In late December 2006, Mr Nevermann was towing a trailer holding two surfboards along Caves Road between Dunsborough and Cowaramup Bay Road. In the course of the journey the surfboards fell off the trailer. Mr Nevermann telephoned the police on 31 December 2006 and 4 January 2007 to make a lost property report in relation to the boards.
44 On 5 January 2007, Mr Nevermann again telephoned the police in relation to the two surfboards. However, on this occasion he told the police that the surfboards had been stolen from the trailer on his car which was parked in the driveway of his home. That report was false, and it was that report which was the subject of the charge against Mr Nevermann.
45 Mr Nevermann subsequently made a claim on his home insurance policy for the loss of the surfboards, and that claim was paid.
46 As a result of the multiple reports made by Mr Nevermann, the police visited him at his home to make inquiries. On that occasion he declined to participate in an interview with them. Subsequently, however, Mr Nevermann attended a police station and admitted making a false report to the police regarding the theft of the surfboards.
47 Mr Nevermann's explanation to the Magistrate was that after he reported the surfboards as lost, he again phoned the police and was told that one of the surfboards had been reported as found, although the board had not been brought into the police station. He telephoned the police station every few days over the next few weeks, only to be told that the board had not been brought in and that the officer who received the report that it had been found was on leave.
48 Mr Nevermann said that eventually he gave up hope of getting the board back and went to a surf shop to buy a new one. He said the shop assistant suggested that if Mr Nevermann said that the boards had been stolen, their loss would be covered by his home insurance policy. Mr Nevermann then made the report to the police in which he falsely reported that the surfboards had been stolen from his driveway.
(b) Is the 2007 conviction relevant to whether Mr Nevermann is unfit to hold a licence as a valuer?
49 Although the conduct which led to the 2007 conviction was committed at a time when Mr Nevermann held a licence under the LVL Act, we accept that that conduct did not occur in the course of his work as a land valuer, and that it arose out of a purely personal matter. Nevertheless, in our view the 2007 conviction is relevant to the question whether Mr Nevermann is unfit to hold a licence as a valuer.
50 We have reached that view because we have concluded that honesty is an essential attribute of a valuer under the LVL Act. We accept the Board's submission that the 2007 conviction calls into question Mr Nevermann's honesty, for the following reasons.
51 The creation of a false belief is a clear offence of dishonesty. The offending conduct which led to the 2007 conviction was of a serious kind. False reports to the police have the potential to waste police time and resources. It was for that reason that the learned Magistrate said that he 'treat[ed] this offence as a rather serious one in terms of - it's just an outright false statement made to police. It could have brought about wasted effort and cost on the part of the police department to pursue the allegation, and it goes to the heart of our criminal justice system somewhat that the police ought to have the confidence that people who make complaints make those complaints genuinely bona fides and with honest and proper intentions.'
52 In addition, Mr Nevermann clearly committed the offending conduct in order to make an insurance claim. It is apparent from his evidence before us that Mr Nevermann knew he was not entitled to make that insurance claim if the surfboards had been lost, but that he would be entitled to do so if the surfboards had been stolen from his home. He therefore committed the offending conduct in order to make a financial gain. That he knew he was not entitled to make an insurance claim was also demonstrated by the fact that following the police's inquiries into his false report, Mr Nevermann repaid the money he had received from his insurance company.
53 Land valuers are frequently called upon to provide opinions on the value of land in circumstances where their opinions will have significant financial implications for others. Members of the public need to be confident that valuers licensed under the LVL Act will not be amenable to external pressure to tailor their valuations for financial gain. It is for that reason that the commission of conduct which suggests a willingness to engage in dishonesty for financial gain is a particularly serious matter for a land valuer.
(c) Is Mr Nevermann fit to hold a licence as a valuer notwithstanding the 2007 conviction?
54 The existence of a prior conviction will not necessarily mandate the conclusion that a person is unfit to hold a licence as a valuer. A variety of factors may support the conclusion that notwithstanding a prior conviction, a valuer may nevertheless be able to demonstrate that he or she has the attributes, abilities and knowledge which the community is entitled to expect of a valuer licensed under the LVL Act.
55 In Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (at 8) Justice Wheeler referred to a number of factors which may suggest that notwithstanding a prior conviction, a person is fit to be licensed in a particular industry or occupation. Those same factors are also relevant, in our view, to the question whether a person is unfit to hold a valuer's licence by virtue of a prior conviction. The factors to which her Honour referred were:
56 Although we have had regard to these factors, we have nevertheless reached the conclusion that in view of the conduct giving rise to the 2007 conviction a cause exists which renders Mr Nevermann unfit to hold a licence as a land valuer.
Remorse and contrition, insight into the offending conduct
57 Mr Nevermann filed a witness statement in these proceedings. In it he stated that he is 'deeply ashamed and remorseful' about the behaviour that led to the 2007 conviction. Mr Nevermann then sought to explain the circumstances which led to his commission of this offence.
58 Mr Nevermann stated that the day after he returned to Perth from Dunsborough he rang the Dunsborough police station and was told that someone had reported having found a surfboard. The officer he spoke to said that he would contact the person and get back to Mr Nevermann. Mr Nevermann said that he rang the station two to three days later, and then a week later and on each occasion was told that the officer who had taken the report was occupied with matters of a higher priority and that he would get in contact with Mr Nevermann in due course. He telephoned again the following week and was told that the same police officer was on leave and would contact Mr Nevermann on his return. Mr Nevermann stated that 'it began to seem to me that the police weren't prepared to do anything and I would not get the boards back'.
59 Mr Nevermann said that he then went to a surf shop to replace one of the boards and the proprietor of the shop suggested that he should make a claim on his household insurance policy for the lost board. Mr Nevermann stated that 'I acted on this advice and made a report to the police saying that the surfboards were missing from my vehicle when I got back home and it was possible the boards had been stolen off the trailer in my driveway'.
60 Mr Nevermann stated that 'I acknowledge that what I did was wrong, but I acted out of the frustration I felt that the police were not contacting this person who had reported my board. It was also only recently that I had stopped having personal valuables insurance after many years and this added to my frustration.'
61 Mr Nevermann also disputes one aspect of the material facts relied on by the prosecution when he was sentenced in respect of the 2007 conviction. Mr Nevermann said that he did not make the false report on 5 January 2007 as alleged by the police, but rather that he made the false statement at least 2 3 weeks after his initial report, when he had become very frustrated by the whole process.
62 Mr Nevermann stated that some time later he telephoned the Dunsborough police station and eventually managed to speak with the officer who had taken the report that one surfboard had been found. Mr Nevermann complained about the responses he had received to his inquiries. Mr Nevermann stated that the officer rang him back shortly after this telephone call and advised that the surfboard had just been brought into the station, and as a result Mr Nevermann ended up getting one of the surfboards back.
63 In providing this evidence, Mr Nevermann stated that he did not want to make excuses for his behaviour but rather to explain 'the extremely frustrating series of events that led up to my making that statement'. Despite this claim, however, the explanation Mr Nevermann offered for his conduct was clearly intended to be exculpatory of his own role. Whatever may have been Mr Nevermann's frustration at being unable to confirm whether his surfboards had been found, that in no way justified or excused his behaviour, nor rendered what he did less serious.
64 More importantly, the theme which emerged from Mr Nevermann's evidence was that he had been prompted to take the action he did because of the actions of others - by the 'advice' of the shop assistant, and by the inaction or lack of response by the police to his inquiries. This suggests a failure on Mr Nevermann's part to accept that it was entirely his decision to make the false report.
65 We also note that in a letter to the Board in May 2008 when he applied for the renewal of his licence as a valuer, Mr Nevermann told the Board that shortly after he received the payment from his insurer he 'realised the stupidity of my conduct and the potential implications of the same. I therefore immediately took steps to inform the police that the boards had in fact not been stolen but had been lost from my trailer. I at the same time informed the insurance company of this and refunded in full the payment received from the insurer.' However, that explanation does not accord with the statement of material facts of the offence to which Mr Nevermann pleaded guilty, nor with Mr Nevermann's account to the learned Magistrate. The statement of material facts suggests that it was only after the police came to his home to make inquiries about the multiple reports Mr Nevermann had made that he decided to admit what he had done. Mr Nevermann also told the learned Magistrate that it was few days after the police visited his home that he 'decided that I had done something terribly wrong. ... I then rang the police officer up to say that I am guilty of making a false statement to the police.'
66 The evidence suggested a lack of insight into the offending conduct and a failure by Mr Nevermann to truly accept his culpability for that conduct.
Passage of time since the commission of the offence with no intervening misconduct
67 Mr Nevermann submits that the 2007 conviction is not probative of his character as the behaviour relating to the offence and the recording of the conviction took place two to three years ago and no behaviour of the same nature has occurred since then.
68 The passage of time after an offence has been committed, with no intervening misconduct, may support the conclusion that a person's character has improved. The restoration of a person's good character following an isolated instance of misconduct may happen relatively quickly. At the other end of the spectrum, in the case of very serious offences, a significant period of time involving good behaviour may need to pass, together with a clear demonstration that the person has undergone a change of character, before that good character will be restored: cf Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 at 3031 (Miles CJ) and Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 366 (Walsh JA).
69 As we noted above, the offending conduct which led to the 2007 conviction was an instance of dishonesty of a serious kind. In our view, the passage of time since the commission of the offence is not particularly substantial, and is not sufficient, of itself, to expunge the effects of the offending behaviour.
70 Mr Nevermann did not contend that his circumstances have changed since the commission of the offence leading to the 2007 conviction so that it might be said that the factors which led to the commission of the offence have been removed.
71 However, Mr Nevermann did rely on factors indicative of his good character to support his submission that even if we were to find that the 2007 conviction is relevant to the question of his fitness, he nevertheless remains fit to be licensed as a land valuer.
72 Mr Nevermann is 49 years of age. He has been married for more than 27 years and lives with his wife and two children. He is active in charities and in the community through junior sport. He says that he has a strong religious faith which underpins his family life.
73 Mr Nevermann contends that he does have the honesty, knowledge and ability and competence, to carry out the work of a land valuer. As to his knowledge, ability and competence, Mr Nevermann says that he has performed at least 12,500 valuations personally over the last 20 years and has supervised approximately 20,000 valuations carried out by other valuers, and that he has been the subject of only two complaints resulting in disciplinary proceedings against him.
74 Mr Nevermann says that he has received many expressions of thanks from satisfied clients over the years. Amongst the material provided by Mr Nevermann were emails which appeared to be from nine clients of National Property Valuers. The names of the individuals have been deleted from the copies of the emails provided to us. Each of the emails expresses gratitude for valuation services performed by Mr Nevermann. We place little weight on this material because the emails appear to predate the conduct the subject of the 2007 conviction, and the opinions expressed do not deal with the question of Mr Nevermann's honesty.
75 Mr Nevermann also provided the Tribunal with written references from four licensed valuers. Each of these referees stated that Mr Nevermann had disclosed to them the matters relied on by the Board in these proceedings, including his criminal convictions and the earlier disciplinary proceedings. Each of these references contained statements to the effect that in their dealings with Mr Nevermann over many years the referees have never had any reason to question his honesty and integrity, and that there has never been any reason to question his business practices.
76 Mr Nevermann also filed a witness statement prepared by one of his referees, Mr Jason Field, who is a Director of National Property Valuers (NSW) Pty Ltd. That company is separate from National Property Valuers Pty Limited, of which Mr Nevermann is the director. Mr Field deposed that the National Property Valuers is an affiliated alliance of separate and independent companies in each State, which trade under the name 'National Property Valuers'. Mr Field stated that referrals from the company with which Mr Nevermann is associated account for about 10% of National Property Valuers (NSW) Pty Limited's revenue. However, Mr Field stated that 'NPV (NSW) is not financially dependent on referrals from [Mr Nevermann's] business and if I had the slightest doubt about [Mr Nevermann's] skills or his honesty and integrity, or if I thought that the name of my business was being tarnished, I would change it tomorrow'.
77 Mr Field stated that he is fully aware of the circumstances that led to the Board making the present application and that he understood that Mr Nevermann had made a false statement to the police for insurance purposes. Mr Field said that he regarded this offence 'as a terrible mistake, a single, isolated act of stupidity, albeit unrelated to his professional life'. Mr Field stated that Mr Nevermann has 'first class' skills as a valuer, and that he 'stands out because of his dedication and thoroughness, and the extensive research he conducts into sales'. He stated that he 'believe[s] absolutely in [Mr Nevermann's] skill as a valuer and his integrity as a person' and that 'it would be terrible for the industry to lose someone of [Mr Nevermann's] calibre'. He stated that he has 'never had any reason to doubt [Mr Nevermann's] honesty and integrity'.
78 These character references provide some support for Mr Nevermann's submission that he is a person with the requisite honesty to be a land valuer under the LVL Act. However, given the nature and seriousness of the 2007 conviction, we are not persuaded that these good references expunge entirely the question mark about Mr Nevermann's honesty that arises from the 2007 conviction.
(d) Alleged delay in the commencement of disciplinary proceedings
79 Counsel for Mr Nevermann submitted that the Tribunal should decline to grant any relief against Mr Nevermann because the Board had delayed in bringing the present application, and had acquiesced in Mr Nevermann's continuing to work as a licensed valuer by renewing his licence in 2008 after it had become aware of the 2007 conviction. In his written submissions, counsel for Mr Nevermann suggested that the principle of 'laches' applied. However, in his oral submissions, counsel recast the submission as one which relied in a more general way on delay as the basis for an exercise of discretion by the Tribunal to refuse to grant any relief. From that perspective, the submission appeared to relate to whether we should take any disciplinary action in the event that we were satisfied that Mr Nevermann was unfit to hold a licence as a valuer. However, it was also apparent that counsel for Mr Nevermann advanced the point in support of a submission that we should not be satisfied that Mr Nevermann is, by virtue of the 2007 conviction, unfit to hold a licence.
80 Counsel for Mr Nevermann submitted that the Board knew of the 2007 conviction from May 2008 when Mr Nevermann wrote to the Board and advised it of the conviction, but the Board failed to take any action for six months. Counsel for Mr Nevermann conceded that this delay was not excessive, but nevertheless submitted that the Board should have taken more prompt action if it considered that Mr Nevermann was not fit to be licensed as a valuer. Counsel for Mr Nevermann effectively appeared to submit that the delay between the Board's receipt of information concerning the 2007 conviction and its commencement of the present proceedings undermined the Board's claim that the 2007 conviction rendered Mr Neverman unfit to hold a licence.
81 Mr Geoffrey O'Reilly, the Manager of Compliance at the Finance and Valuation Industries Branch of the Department for Consumer and Employment Protection provided a written statement and gave evidence in relation to this issue. His evidence was that on 30 May 2008, the Board received a letter from Mr Nevermann dated 7 May 2008 which contained information about the 2007 conviction. In late May or early June 2008, the Board received an application dated 8 April 2008 from Mr Nevermann to renew his licence as a valuer. That application was accompanied by a National Police Certificate which recorded the 2007 conviction (in addition to Mr Nevermann's earlier convictions).
82 Mr O'Reilly's evidence was that officers of the Department then assisted in conducting inquiries and obtaining advice from the Department's Legal Unit as to whether to proceed with disciplinary action against Mr Nevermann. Mr O'Reilly's evidence was that this matter was dealt with more quickly than was usual because it was considered a serious matter and that he had dealt with it personally to ensure that it was dealt with quickly. The present application was filed on 29 November 2008 and served on Mr Nevermann in December 2008.
83 Having received information from Mr Nevermann about the 2007 conviction, it was entirely appropriate for the Board to make its own enquiries in relation to the nature of the offending conduct behind that conviction in order to form a view as to whether that conduct was relevant to Mr Nevermann's fitness to hold a licence. We do not consider that there was any 'delay' on the Board's part which is of relevance to the question whether Mr Nevermann is unfit to hold a licence.
84 Counsel for Mr Nevermann also submits that the Board acquiesced in the matters which are now relied on by the Board to demonstrate Mr Nevermann's unfitness (including the 2007 conviction) because the Board renewed his licence in 2008, notwithstanding its knowledge of the 2007 conviction and of the earlier convictions. The Board's position is that it does not have power under the LVL Act to refuse to renew a licence on the basis that it considers that a valuer is no longer fit to hold the licence. In a case of that kind, the Board's position is that it must bring an application for disciplinary action against a valuer, pursuant to s 27 of the LVL Act. In support of its approach, the Board relies on the decision of the Tribunal in Evans and Settlement Agents Supervisory Board [2008] WASAT 121, which dealt with licensing provisions in the Settlement Agents Act 1981 (WA) which are in similar terms to the licensing provisions in Pt III of the LVL Act. It is unnecessary for present purposes to determine whether the construction of the legislation in Evans applies equally to the LVL Act. It suffices to say that given the Board's views about the application of the legislation, there is no merit to the contention that the Board acquiesced in the conduct by Mr Nevermann which it now relies on as rendering him unfit to hold a licence.
85 In the circumstances, the period of time between the Board being notified of the 2007 conviction and its commencement of disciplinary proceedings does not undermine the Board's submission that the conduct leading to the 2007 conviction gives rise to a cause which renders Mr Nevermann unfit to hold a licence.
86 The nature and seriousness of the offending conduct which led to the 2007 conviction suggests Mr Nevermann does not have the honesty which is an essential attribute of a land valuer under the LVL Act. Despite the evidence of his good character which was before us, including his character references, we are not persuaded that Mr Nevermann has the attribute of honesty which is essential for a land valuer, particularly as the period of time since the offence was committed is not substantial and because the evidence suggests that he does not have a real insight into, and an acceptance of, his culpability for his offending conduct. Accordingly, we are, on balance, satisfied that in view of the 2007 conviction a cause exists which renders Mr Nevermann unfit to hold a licence as a land valuer under the LVL Act.
87 We are therefore satisfied that proper cause exists for disciplinary action against Mr Nevermann under s 28 of the LVL Act.
In view of Mr Nevermann's conduct since August 1987, does a cause exist that renders him unfit to hold a licence pursuant to s 28(2)(d) of the LVL Act?
88 Given the conclusion we have reached in view of the 2007 conviction, it is unnecessary for us to consider the alternative basis on which the Board advanced its application under s 28(2)(d) of the LVL Act, namely that Mr Nevermann's conduct since August 1987 rendered him unfit to hold a licence.
89 We will hear the parties in relation to whether, and if so what, action should be taken by the Tribunal pursuant to s 28(1) of the LVL Act in view of our conclusion that a cause exists for disciplinary action against Mr Nevermann. The application will now be listed for a directions hearing so that orders may be made in relation to the filing of submissions and for the listing of a further hearing, if necessary.
I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1990) 170 CLR 321
(1955) 93 CLR 127
(1947) 74 CLR 613
(1979) 22 SASR 70
(2004) 216 CLR 253