McEvoy v Director-General of the Department of Fair Trading - [2000] NSWLEC 183 - NSWLEC 1998 case summary — Zoe

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McEvoy v Director-General of the Department of Fair Trading

[2000] NSWLEC 183

Land and Environment Court (NSW)|1998-07-09|Before: Lloyd J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1998-07-09

Before

Lloyd J

Source

Original judgment source is linked above.

Judgment (74 paragraphs)

[1]

The applicant appeals under section 23 of the Valuers Registration Act 1975 against the decision of the respondent to refuse his application to be registered as a practicing real estate valuer. The applicant has the necessary formal qualifications to be registered, namely a degree of Bachelor of Commerce with major studies in Land Economy from the University of Western Sydney, Hawkesbury. His application was refused on the sole ground that he is not a person of good character.

[2]

Section 15 of the Valuers Registration Act 1975 relevantly provides as follows:

[3]

(1) Where, on receipt of an application under section 13(1) from a person to be registered as a practising real estate valuer, The Director- General is satisfied that: (a) the person is of good character; (b) the person: (i) has successfully completed both a course of study approved by the Minister and a prescribed period of training in valuing land, whether situated within New South Wales or elsewhere, at a standard approved by the Director-General; or (ii) was, at any time within the period of 5 years immediately preceding the date of the person's application, a registered real estate valuer and satisfies such requirements, if any, with respect to valuing land, determined by the Director-General for the purposes of this subparagraph; and (c) the person is sufficiently experienced and competent in valuing land, whether situated within New South Wales or elsewhere, to be able, by himself or herself, to value properly all classes of land, the Director-General shall cause that person to be registered as a practising real estate valuer.

[8]

The applicant's father was also in partnership in a discount store at Seven Hills with Mr G Denning. In February 1999 the applicant was employed in the discount store whilst his father was in the psychiatric hospital. On 23 April 1999 the applicant was convicted of stealing of sum of money from the daily takings at the store. The relevant facts relating to this incident are set out in the Facts Sheet tendered to the Local Court. The victim and the defendant's father are business partners. The defendant's father usually worked at their joint owned shop situated at Shop 54 The Hills Shopping Complex Seven Hills. The victim runs another business at Salamander Bay, but does the purchasing of stock for the shop at Seven Hills. During early March 1999, the defendant's father was hospitalised. The victim offered the defendant part-time work to run the store at Seven Hills by himself Sun, Mon, Wed, Thur & Fridays. The defendant was given permission to take $40 for working Sundays and $50 each week day from the store's daily takings. The defendant worked Sunday the 14th of March, Monday the 15th of March and Wednesday the 16th of March 1999. The week's takings were placed in a drawer underneath the till for the victim to collect. About 10.00 am Thursday the 18th of March 1999, the victim arrived at his store at Seven Hills and found it was not opened. The victim opened the store himself and was informed by a Security Officer that the defendant was in a video shop within the shopping complex. The victim then went and spoke to the defendant. The defendant admitted to the victim that he had taken the store's takings. Both the victim and the defendant returned to the store where the victim called the Police. The defendant then accompanied the victim to Blacktown Police Station where he was interviewed. The defendant made full admissions to taking $1,400 in cash from the store without permission. The defendant informed Police that he had gone to the Hotel beside the Seven Hills Shopping Complex after closing the store on Wednesday the 17th of March 1999 and had began drinking with friends and using the poker machines. The defendant stated he had run out of money so about 6.30 pm went back to the store and removed the takings for the previous four days totalling approximately $1,400 and returned to the hotel. The defendant stated he had given $250 to a friend to pay off a gambling debt and had spent the rest of the money playing the poker machines and drinking. The defendant stated he is addicted to gambling on the poker machines and has committed similar offences prior whilst working for other companies though the matters were not reported to Police. He expressed remorse to the victim and Police for his actions and agreed he requires help for his addiction.

[13]

Have you been convicted of any offence or had any offence proved against you under any Act or regulation, including the Valuers Registration Act 1975? (Excluding minor traffic offences) 14. The applicant answered this question "Yes" and disclosed the conviction for stealing. He attached to the form a statement setting out the circumstances of the conviction and included a number of character references. In his statement, setting out the circumstances of the conviction, the applicant states: At the time I was under a large degree of pressure as my parents were in the process of separation and have since filed for divorce. This is after I was brought up in a stable and loving environment for almost 23 years. My father and his partner were in ownership of this business in Seven Hills where I was employed as a part time casual. My father then incurred hospitalisation for several months in a recovery unit at Westmead Hospital because of a mental psychosis disorder (aggressive and controlling personality) which he has still today and was not able to support the family financially when he flat walked out of home and left my family. ... At the time of the offence occurred, my mother was struggling to pay various expenses at home, including to send my two younger brothers to school in a proper uniform. I felt that I had to support the family in any way I could although I soon realised that committing the offence quickly made things even worse than they were already. It was and still remains a complete aberration of my character and one for which I am deeply ashamed. … I am working hard to right the wrong I have done and continue to successfully re-establish my credibility. … I have supplied two credible contactable references, which are respected people, aware of what I have done but who continue to believe in me because it was very out of character for me to ever do something like this. I never ever intend to do anything of this nature in the future and it is my strong desire to represent the role of real estate valuer with the utmost of respect and integrity.. 15. In answering question (ii) on the application form the applicant failed to disclose two convictions at Nowra Local court on 22 May 1995 for possession of a prohibited drug and for self administration of a prohibited drug. Those offences occurred on 9 February 1995. The Magistrate found each charge proved but dismissed the charges under section 556A of the Crimes Act 1900. The applicant said in his evidence before me that the prohibited drug was a dexamphetamine which he took whilst in the company of a friend. The friend had taken a substantial quantity of the drug and as a consequence the friend's erratic behaviour drew attention to both of them. The applicant also said of this incident that his friend knew somebody who had the drug, that he (the applicant) " was pretty young, I was nineteen and I just sort of took it without thinking ." The applicant says that he did not disclose this conviction because he thought that the dismissal of a charge under section 556A of the Crimes Act was not a conviction. He now accepts that this understanding was mistaken.

[16]

I feel his conduct is explained by his family problems at the time. There was so much trauma in the family. That external stimulus is no longer present. The applicant has had a huge wake-up call. The support of his family was not available. The submissions of the parties 18. Mr J A Breene, who appears for the applicant, submits that the test of good character is in the context of an applicant seeking registration as a practising real estate valuer subject to limitations pursuant to section 15 (2) of the Valuers Registration Act, since he has not had the necessary practical experience, coupled with the fact that registration must be renewed annually. The test of good character is, in his submission, one which must be determined at the date of assessment of the application for registration, which is today. Mr Breene relies upon the fact that the applicant has satisfied all the conditions of the bond, including repayment of the money and upon his rehabilitation since the offence. Mr Breene notes that the other offences are not offences of dishonesty. 19. Mr P J Bambagiotti, who appears for the respondent, made the following submissions. (1) The registration of a person as a valuer amounts to a holding out by the respondent that he is a person of good character. In the present case the bond relates to a crime of dishonesty and is still current. (2) Members of the public would assume by his registration as a valuer that the applicant is a person of good character, where his conviction for dishonesty was reasonably proximate to the present time, occurring only a little more then a year ago. (3) The applicant has had a history of a gambling addiction, alcohol abuse and the use of illegal drugs, which suggests that one could not be satisfied that the applicant can control himself. (4) Of the greatest concern is the applicant's failure to disclose the prior drug offences and the disqualification from driving. The respondent relies upon applicants who fill in the application form for registration to display candour and honesty, which was lacking in the present instance. Mr Bambagiotti supported his submissions by reference to a number of decided cases on the question of good character, some of which I discuss below.

[19]

No candidate, however qualified in other respects, shall be admitted as a barrister unless the Board is satisfied that he is of good fame and character. 23. In considering the question of good fame and character Latham CJ said (at 416-417): But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man a good character. 24. Dixon J, after referring to the facts of the case, including the fact that since 1934 the appellant had led a life of scrupulous honesty, said (at 426): He has shown industry, perseverance and courage amidst the most adverse circumstances, and has overcome many disadvantages and obstacles encountered particularly in his early years. His mental breakdown and even his descent into criminality will evoke much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct or actions have been in many respects praiseworthy, mars his life by a crime. But, though concern for an individual who is overtaken by the consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the administration of justice. ... But a prerequisite, in any case, would be a complete realisation by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted. 25. In Sakellis v Officer in Charge of Police, Paddington (1968) 2 DCR (NSW) 3, a person applied for a license as a commercial subagent. The applicant was required to satisfy the court under the relevant legislation that he was, inter alia , of good fame and character, that he was a fit a proper person to hold a license and, subject to sub-section 13 (2) of the Act, had not been convicted of an offence punishable on indictment. Sub-section 13(2) of the Commercial Agents and Private Inquiry Agents Act 1963 provided, inter alia , that where, in dealing with an application, the court is satisfied that the applicant has been convicted of an offence punishable on indictment, it may grant the application if, in the opinion of the court, the offence is such that, either from its nature or from the circumstances in which it was committed, it ought not, having regard to the public interest, to disqualify the applicant from being or acting as a subagent. The applicant had some twelve months previously pleaded guilty to breaking, entering and stealing from his employer. The applicant said that he was driven to it by emotional and financial strain resulting from domestic difficulties. The applicant had been placed upon a bond to be of good behaviour for three years and was further required to place himself under the supervision and guidance of the Adult Probation Officers. The bond was still current when his application for a license was considered. 26. Henchman DCJ referred to Ex parte Davis (1949) 50 SR (NSW) 158, in which Herron J said (at 167):

[24]

An expert witness's paramount duty is to assist the court impartially. That duty overrides the expert witness's obligation to the engaging party. An expert witness is not an advocate for a party. 33. These obligations show that a valuer must demonstrate both honesty and candour in the face of pressure from the engaging party to present valuation report favourable to that party's interests. As noted by Mahoney JA in Law Society of NSW v Foreman , good character requires the individual to act in accordance with high standards of conduct when under pressure. 34. I accept the applicant's evidence in the present case that when he committed the offence of stealing he was under some pressure caused by his family situation, by the need to bring in an income for his family to make up for his father's incapacity to do so; and to meet his then gambling addiction. He has, however, not demonstrated an ability to maintain a high standard of conduct when under such pressure. He has not demonstrated that he can satisfy the test described by Mahoney JA in Foreman. 35. Secondly , the act of registration as a valuer amounts to a public certification that the person is an honest person in whom confidence can be reposed (in Re Arnold ). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual ( Dad v General Dental Council [2000] 1 WLR 1538 at 1543. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character ( Ex parte Davis, Sakellis ). I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character ( Sakellis ). The seriousness of the offence in this case is illustrated by the fact that it is both an indictable offence and one which carries the maximum penalty of ten years imprisonment (section 156 Crimes Act 1900). 36. Thirdly , the applicant's failure to disclose the convictions for the two drug offences and the disqualification excludes any possibility of holding that, at the time of making his application for registration, he was a person of good character (in Re Davis ). I have referred above to the applicant's explanation for those failures. Nevertheless the applicant was convicted of the two drug offences, which are serious offences. The applicant recognised that he should disclose the stealing offence although he was placed on a bond and so also he should have recognised that he must disclose the drug offences although receiving the benefit of section 556A of the Crimes Act. As to the disqualification, the question on the application form for registration is unambiguously clear, for which there could be only one answer. The obligation of complete candour and disclosure is an important element of good character. Its absence does not give one confidence that in the course of his work as a registered valuer the applicant will not overlook in his valuation reports all relevant facts or opinions which may bear upon the question of value. Its absence suggests that the accuracy and reliability of the applicant's work would have to be checked. 37. For the abovementioned reasons I conclude that the applicant is not a person to be held out as being of such good character as to be registered as a real estate valuer with its attendant responsibilities, obligations and benefits. 38. This conclusion does not necessarily mean, however that the applicant can never be registered as a real estate valuer. As in the case of Davis , who given time, was able to demonstrate that he was a person of good fame and character and ultimately obtained admission as a barrister, so too the present applicant by his subsequent conduct may likewise be able to demonstrate that he is a person of good character and he has overcome the shortcomings which he has displayed to the present time. At the present time, however, he does not satisfy that test. 39. Orders 1. The appeal is dismissed. 2. The Applicant's application for registration as a real estate valuer is refused. 3. I reserved the question of costs. 4. The exhibits may be returned.

McEvoy v Director-General of the Department of Fair Trading

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Judgment (74 paragraphs)

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Cited By (12)