On 23 July 2018 Antonio Livaja (the Applicant) made an application to the Commissioner for Fair Trading, Department of Finance, Services and Innovation (the Respondent) for a certificate of registration as a real estate salesperson under the Property, Stock and Business Agents Act 2002 (the Act).
In that application, the Applicant responded "No" to the disclosure question "Have you been convicted in NSW or elsewhere of any criminal offences that were recorded in the last 10 years?", despite having been convicted on 28 September 2016 of the offence of "Dishonestly obtain financial advantage etc by Deception - T1", receiving a section 9 Crimes (Sentencing Procedure) Act 1999 good behaviour bond for a period of 18 months, and being to pay $3,070 in compensation.
The Respondent sought further information from the Applicant on 15 August 2018 by issuing him with a notice under s 14 of the Licensing and Registration (Uniform Procedures) Act 2002 (the s 14 notice). A response was provided by the Applicant through his then legal representative on 20 September 2018.
On 10 November 2018 the Respondent determined to refuse the application, on the following grounds:
1. The Applicant is not a fit and proper person to hold a certificate of registration pursuant to section 14(3)(b) of the Act; and
2. The Applicant is a disqualified person pursuant to section 16(1)(a) of the Act due to his conviction for 'Dishonestly obtain financial advantage etc by Deception' within the last 10 years, and therefore ineligible to hold a certificate of registration pursuant to section 14(3)(d) of the Act.
The Respondent determined that the acts or omissions giving rise to the offence involving dishonesty were not trivial and the passage of time was insufficient, meaning that the offence could not be ignored under section 16(2) of the Act. The decision took into account inconsistencies between the submissions made by the Applicant through his solicitor in the response to the section 14 notice, and the NSW Police Facts Sheet for the offence.
By letter dated 6 December 2018 from the Applicant's solicitor, the Applicant sought internal review of the decision. Among other things, an explanation was provided for the inconsistencies identified between the Applicant's submissions and the NSW Police Facts Sheet.
The Respondent's decision was affirmed on internal review on 25 March 2019. On 26 April 2019 the Applicant applied to the Tribunal for administrative review of the Respondent's decision.
The proceedings were heard on 17 July 2019. The Applicant provided the Tribunal with a bundle of documents including:
1. the correspondence from his former solicitor to the Respondent dated 18 September 2018 responding to the s 14 Notice;
2. the Application for Internal Review dated 6 December 2018;
3. Certificate of completion of units of competency dated 19 July 2018 from Smart Academy;
4. National Police History Check dated 22 August 2018;
5. Character references from:
1. Vince Tripodina, Licensee and Director of Benchmark National Real Estate, dated 18 September 2018;
2. Anna Stabile, Office Manager of Benchmark National Real Estate, undated;
3. Steve Krnjulac, real estate agent at Quay Property Agents, Liverpool, dated 29 May 2019;
4. Maria Mosca, undated;
5. Dr Veronika Jakovac, dated 20 September 2018.
1. Betsafe Self exclusion request application form (undated);
2. Correspondence from Gambling Help Online (undated);
3. Page 1 of 4 of Roads and Maritime Services' NSW Fitness to Drive Assessment request form, dated 27 May 2019;
4. Vocational and Functional Assessment Report addressed to NSW Compensation Lawyers for medico-legal purposes, dated 15 May 2013.
The Respondent filed documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and additionally provided written submissions dated 28 June 2019.
[2]
Legal principles
The purpose of the Act is to regulate the real estate industry, by making provision for the licensing, regulation and discipline of real estate agents, and has as one of its objects, the protection of the public.
Section 17(1)(g) of the Act provides that the Secretary may grant a certificate of registration as a real estate salesperson.
Section 19 of the Act provides that an application must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (as provided by section 14 of the Act).
Under Section 14(3)(b) of the Act, a person is eligible to hold a certificate of registration only if the Secretary (the Commissioner for Fair Trading) is satisfied that the person is a fit and proper person to hold a certificate of registration. The Act does not define the term "fit and proper".
Under section 14(3)(d) of the Act a person is eligible to hold a certificate of registration only if the Secretary is satisfied that the person is not a disqualified person. 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,
…
(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.
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.
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."
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.
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.
The discretion in subsection 16(2) of the Act was considered by the Appeal Panel in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37. It was noted [at 34] 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". 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].
[3]
Fit and proper person
Whether a person is "fit and proper" has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28). In Australian Broadcasting Tribunal v Bond [1990] HCA 33 it was explained by Chief Justice Mason at [63]:
"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."
In the same case, Toohey and Gaudron JJ said at [36]:
"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
The attestation that an applicant is fit and proper for a licence includes the attestation that the applicant "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." See Walters J in Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
[4]
Consideration
The Applicant's 2016 conviction was not disputed. It was also agreed that the offence for which the Applicant was convicted, s192E(1)(b) of the Crimes Act 1900, involved dishonesty. What remained in issue was whether the acts or omissions constituting the offence were "trivial" in nature so as to minimise the impact a conviction would have on the Applicant's fitness and propriety , and whether sufficient time had passed since that conviction for the Tribunal to exercise its discretion under s 16(2) of the Act. The exercise of discretion by the Tribunal would then be subject to an assessment of whether the Applicant had demonstrated the requisite reformation of character required to be considered a fit and proper person under the Act, despite the conviction.
In oral evidence the Applicant stated that he had completed the application form at a Service NSW counter, by answering questions posed to him by a Service NSW Officer. He claimed that he had not been asked by the Service NSW Officer whether he had been convicted of any criminal offences, but had instead been asked whether he had any driving offences, to which he answered "No". The Applicant stated that, had he been asked whether he had a conviction recorded under the Act, he "would have answered yes because I know that's a requirement". Although agreeing that he knew it was important to read the terms and conditions of the licence application, he claims to not have read them at the time of making the application, that he only "became aware after the application". On balance, I accept the Applicant's evidence that he had not intentionally been dishonest in his application form regarding his previous conviction, that it was an "honest mistake". However, the failure to disclose is not the main issue with which the Tribunal is concerned in these proceedings.
Of greater concern to the Tribunal is the evidence regarding the Applicant's conduct since the dishonesty offence. In evidence, the Applicant admitted that despite being ordered by the Court to pay the victims of his offending $3070 in compensation, he had not done so. He gave various excuses to the Tribunal for this failure, similar to those that he had provided to the Respondent in response to their s14 Notice, including waiting on correspondence or communication from the victims regarding a payment plan; not having sufficient funds to repay; and having a gambling addiction which impeded his ability to pay the compensation ordered. However in cross-examination he admitted that:
1. despite having sufficient funds at the time of the offence to repay the victims, he had not done so;
2. despite stating in his response to the s14 Notice that he didn't have the funds to repay the victims he "had the means to pay if I was in a better frame of mind";
3. despite telling one of the victims on 7 September 2015 that he had transferred half of what was owed back to him, he had not done so;
4. despite offering to make repayments at a rate of $150 per fortnight to one of the victims on 13 October 2015, he had not done so after the first payment of $150 was made.
The Applicant's explanation for his failure to pay compensation as ordered was an alleged gambling addiction. To support this excuse, he relied on a document purported to be from Betsafe, which is a gambling self-exclusion program. However, on examination of this documentation and under cross examination, the Applicant agreed that the document was the only document he had from Betsafe, it consisted of a self-exclusion application dated 6 March 2019, and he had not completed any further documentation to actually set up the self-exclusion. The Applicant provided a letter from an online gambling help service which he claimed to have joined "nearly six months ago" to support his evidence that he had "numerous conversations with counsellors" including at least one conversation per fortnight for the past six months and reminder text messages every three days. He also claimed that the Judge who had convicted him of the dishonesty offence had "diagnosed him with a gambling addiction" for which he was "seeing counsellors in Fairfield", but there was no objective evidence supporting these claims and I consider it unlikely on the balance of probabilities for a judicial officer to have diagnosed the Applicant with any kind of condition.
The Applicant provided a number of written references to support his application. Only one of the referees, his employer Vince Tripodina, was called to give oral evidence, which he did via telephone. The Applicant was questioned under cross examination as to how much information he had provided each of his referees before obtaining a reference from them. He had provided varying levels of detail to each of the referees:
1. He had not informed Mr Tripodina of any alleged gambling addiction, or described the details of the offence for which he was convicted. He had informed Mr Tripodina that he had not repaid the amounts ordered and owed;
2. He had disclosed the offence to Ms Stabile, but did not provide all the details of the circumstances of the offence, including that it involved three separate purchasers. He said he had informed her of his gambling addiction and that he had not repaid the amount ordered and owed;
3. He had not disclosed any gambling addiction to Mr Krnjulac, but had disclosed the offence, the amount of money owing, and that it had not been repaid;
4. He had not disclosed any gambling addiction, the amount of money owing, or that he had not repaid the amount ordered and owed to Ms Mosca, but had informed her of the offence. His relationship with Ms Mosca was not professional;
5. He had not disclosed to Dr Jakovac that he had a conviction for the offence, and there was no mention of gambling addiction in her reference.
Mr Tripodina gave oral evidence that he could not remember whether the Applicant had disclosed the amount of money he was ordered to pay, had not disclosed how many victims the offending conduct related to, and had no discussion with the Applicant about whether or not the victims were repaid. It was clear from his oral evidence that Mr Tripodina had not been made aware of the relevant circumstances but that he "believed in giving people a second chance. He's a good kid. Everyone makes mistakes. He did tell me, and I gave him a chance".
On my assessment of the referee evidence I agree with the Respondent's submission that the doctor's reference should be afforded no weight, as she was not aware of the offences or its circumstances and makes no reference to the Applicant's gambling addiction to explain his conduct. I agree that the references of Ms Stabile, Ms Mosca and Mr Krnjulac are of minimal or limited weight as they weren't sufficiently aware of the details of the Applicant's offence to be able to provide any evidence of his character reformation since that time. I also afford Mr Tripodina's reference minimal weight. Whilst his support for the Applicant remained despite being informed of previously unknown (to him) circumstances of the Applicant's conduct, the fact remains that the Applicant has not yet rectified his "mistake" (however it is described), and as his employer, Mr Tripodina has provided no details regarding supervision of the Applicant or responsibility if the Applicant's "mistakes" continue.
On the balance of probabilities, I reject the Applicant's asserted explanations for his conduct in failing to repay court ordered compensation as reasonable, and do not accept that the Applicant has a gambling addiction. The Applicant's evidence was evasive and inconsistent. He took no personal responsibility for his conduct, blaming the offences and his failure to comply with the court's orders to compensate his victims on a gambling addiction. There is limited evidence of any steps taken to rectify, resolve or treat any such condition, and there is no objective documentary evidence prior to 2019 of any such condition. There is no medical evidence supporting the Applicant's assertions that he suffers from a gambling addiction and there is no explanation proffered as to why the Applicant couldn't repay the ordered compensation at any time prior to 2019.
Although the Applicant says he has "taken all the right measures" after the conviction, despite the passage of time he has not paid the compensation as ordered. There is no supporting evidence of the factual assertions made by the Applicant regarding repayment negotiations or capacity to pay. It is not appropriate for the Tribunal to ignore or diminish the impact of the offending in the circumstances.
I agree with the Respondent's submission that the offending conduct was not a "triviality" so as to warrant the Tribunal exercising its discretion. At the heart of the Applicant's offending in this matter was dishonesty. It involved selling the same item to three separate people at the same time. The amount of money involved ($3,070), while not at the high end of the spectrum, was nevertheless not insignificant. The acts giving rise to the offence were planned and carried out by the Applicant for his own personal gain. The Tribunal views the issuing of an 18 month good behaviour bond as significant, especially in the context of non-compliance with the Court orders for compensation to the victims of the offence. This is not a triviality.
It has been more than three years since the Applicant's conviction was recorded and he was ordered by the Court to pay compensation, which he had still not done at the date of the hearing in these proceedings. His evidence and references make clear that he had only considered the repayment of the money he fraudulently obtained, and the compliance with the court's orders, relevant to his application under the Act in the months prior to this hearing, and after making the application to the Respondent and being required to reply to their s 14 Notice. In those circumstances, in the context of the offending conduct, insufficient time has passed within which the Tribunal would exercise its discretion pursuant to s16(2) of the Act.
Even if the Tribunal were to exercise its discretion under s 16(2) of the Act (which it doesn't), the Applicant needs to demonstrate he is a fit and proper person under the Act as a prerequisite for eligibility for the requested licence, which would involve evidence of reformation of character following his 2016 conviction. The Applicant has provided no evidence of reformation. Although his employer Mr Tripodina believes in giving him a second chance, the Tribunal considers that the Applicant needs to rectify his mistakes prior to demonstrating reformation of character, and he has not done so.
The correct and preferable decision is to affirm the Respondent's decision to refuse the Applicant's application for a certificate of registration as a real estate salesperson under the Act on the basis that he is, at this point in time, a disqualified person under the Act and not a fit and proper person to hold the licence.
[5]
Orders
1. The Respondent's decision is affirmed.
[6]
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: 24 February 2020
Parties
Applicant/Plaintiff:
Livaja
Respondent/Defendant:
Commissioner for Fair Trading, Department of Finance, Services and Innovation