McEvoy v Director-General of the Department of Fair Trading

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

(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.

(2) 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, in respect of the person: (a) is satisfied as to matters referred to in subsection (1) (a) and (b) (i) or(ii); and (b) is not satisfied as to the matter referred to in subsection (1) (c), the Director-General shall: (c) cause that person to be registered as a practising real estate valuer subject to such limitation on that person's right to practise as the Director-General thinks fit;... 4. Section 16 provides that the registration of a person as a valuer remains in force for a period of one year, but may be renewed for a like period. Sub-section 23 (1) provides for an appeal to the court by a person aggrieved by a decision of the respondent with respect to an application for registration or an application for renewal of registration. By sub-section 23 (2) an appeal under sub-section 23 (1) is a rehearing.

5. The applicant is twenty four years old. After completing his Higher School Certificate in 1993 he commenced his university course in 1994. In 1995 he deferred his university course for two years. Following the resumption of his course he completed it in 1999 and was awarded his degree on 12 May 2000.

6. The applicant's father owned a video store for several years. The applicant worked in the store for several years until some time in 1998 when his parents separated and his father was admitted to a psychiatric hospital. As a consequence of his admission to the psychiatric hospital the applicant's father was not bringing in any income. The applicant's mother was working and the applicant worked to assist in supporting the family, which includes a younger sister (now aged 19) and two brothers (now aged 18 and 11). At the present time the applicant is employed by Australia Pacific Property Consultants and Valuers as a property researcher (for approximately forty hours per week). He also works seven nights a week as a courier for Cuisine Couriers (for about thirty five hours per week) and on weekends works (for about two hours) for Always Better Cleaners.

7. Whilst obtaining his degree the applicant worked part-time in either his father's video store or in another video store and also worked about ten to fifteen hours a week in a cleaning business. Whilst at university he was also a member of the Students Representative Council, on which he was occupied for between five and ten hours a week.

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.

The victim is asking compensation for the amount of $1,400 to replace stock and pay outstanding accounts at the Seven Hills Store. 9. The Local Court Magistrate convicted the applicant of the offence of stealing property, but did not pass sentence, instead releasing him upon an entering into a bond for two years. The conditions of the bond are as follows: 1. To be of good behaviour. 2. To accept the supervision and guidance of an Officer of the NSW Probation Service, and obey all reasonable directions of such officer for such period of the bond as that officer considers necessary. 3. To pay in total compensation of $1,400 to victim named in charge. 4. To continue counselling and attendance at Gamblers Anonymous for at least six months. 10. In accordance with the conditions of the bond the applicant (a) repaid the sum of $1,400 in instalments over about one year, the last payment being made in about March or April this year; (b) attended addictions meetings once a night for nine weeks at Parramatta Probation and Parol Service; and (c) attended meetings of Gamblers Anonymous once a week for six months. In addition the applicant attended counselling at Baulkham Hills Community Centre fortnightly for six months and attended further counselling at Blacktown Anglican Church. The applicant said in evidence that he found the addictions meetings very beneficial but the Gamblers Anonymous meetings were less so. He admits that he had a gambling problem but says that he has not gambled since his conviction. The applicant's probation officer has furnished a letter which states that termination of the applicant's supervision by the Service has been approved, but the other conditions of the bond remain until it expires on 22 April 2001.

11. The applicant is not unaccustomed to being trusted with relatively large sums of cash. As noted above, he was previously worked for several years in a video store owned by his father, in which he handled cash takings which ranged from about $6,000 to $12,000 every day. He said in evidence that on one occasion he overpaid himself $1,000 and which he then repaid to his father.

12. On 1 March 2000 the applicant was offered a position as Assistant Valuer with Australian Pacific Property Consultants and Valuers. One of the conditions of his employment is that he secures registration as a valuer. As noted above, the applicant is presently employed by that firm as a property researcher pending his registration as a valuer. Mr G B Roper, Managing Director of that firm, has furnished a reference in which he acknowledges that he is aware of the applicant's conviction for stealing. Mr Roper comments favourably on the applicant's enthusiasm and dedication to his duties and observes that the applicant does not appear to be a repeat offender. Mr Roper concludes by stating that whilst he would like to retain the applicant, without registration he becomes a financial luxury which he cannot afford.

13. On 8 March 2000 the applicant completed an application form for registration as a real estate valuer and lodged it with the respondent. The application form contains a number of questions. Question (ii) on the application form is:

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.

Have you been disqualified or suspended from holding any licence, permit or certificate? To this question the applicant answered "No ". On 20 May 1996, however, the applicant had been convicted at Parramatta Local court of dangerous driving, was fined $600 and disqualified from driving for nine months. The applicant's answer to question (iii) was clearly wrong. He explained his answer in evidence by stating that he misunderstood the question: he thought it related to something of relevance to his application such as a real estate licence, or auctioneer's licence or the like.

17. In addition to a number of written references the applicant called two character witnesses. One of those witnesses, Mr D C M Norman, is a family friend who has known the applicant and the applicant's family since the applicant was about six years old. The two families had initially met through their sons and have remained close friends. Mr Norman described the applicant as a respectful, forthright; and he was delighted that his son had a friend of his character. He said that the separation of the applicant's parents and the admission of the applicant's father to a psychiatric hospital had a significant impact upon the applicant. He said that it is his belief that the applicant was not thinking properly at that time. He further said in evidence:

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.

Good character 20. Section 15 of the Valuers Registration Act prescribes good character as a threshold question. Unless an applicant for registration satisfies the test of good character then he or she cannot be considered for registration as a real estate valuer. The concept of good character has been the subject of a number of decided cases, some of which I refer below. 21. In Re Arnold (1932) 11 LVR 14, Pike J considered an application by a person to be registered as a land agent. Section 4 of the Land Agents Act 1927 provided that no person shall be qualified to be registered if he does not satisfy the court as to his good fame and character. Pike J said (at 14):

I think the same principles should be applied in an application by a person to be registered as a land agent as are applied by the Supreme Court when dealing with either applicants to be admitted as articled clerks or applications by solicitors, who have been struck off the role, to be re-admitted to the roll. The Court acts in order that the public may be protected and that persons who receive the imprimatur of the Court should be such that the Court can fairly recommend them to the public as honest persons in whom confidence may be reposed. 22. In Re Davis (1947) 75 CLR 409, the appellant was admitted as a barrister by the Supreme Court of NSW but had failed to disclose to the Barristers Admission Board or to the Court that he had some years earlier pleaded guilty to and been convicted of breaking and entering a dwelling-house and stealing articles of jewellery and clothing therein, for which offence he was released on a bond to be a good behaviour for three years. The appellant had produced certificates of good fame and character from two solicitors who did not know that he had been so convicted. The Legal Practitioners Act 1898 provided that:

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):

It would be difficult indeed that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character at the present time. It seems to me that generally speaking, a man who commits a serious crime may thereby forfeit privileges which are thereby available to honest men. One of these privileges is the entry into a profession which is in the public eye. 27. In holding that the applicant was not a person of good fame and character, Henchman DCJ said (at 9): I cannot agree with the applicant's counsel's submission that there can be a different standard of honesty in different occupations. A man is either honest or he is not, and in my view if he is not, he is unfit for any licence of the present type granted by the public. This not to say a man convicted once on a crime involving dishonesty may never again be a fit and proper person to hold a licence, ... . ... Among the functions he is to perform is the swearing of affidavits for the information of courts and the giving of evidence. It is unthinkable that a person should be certified by a court as a suitable person for a licence if that person were to have to admit in cross-examination in a court that he has been convicted of breaking, entering and stealing and was still under a bond in respect to that offence. 28. In Law Society of NSW v Foreman (1994) 34 NSWLR 408, Mahoney JA defined character as follows (at 449):

Character involves, inter alia, two thing: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. Character is tested not by what one does in good times but in bad. 29. In Re Habis (The Licensing Court of NSW, 9 July 1998, unreported) a Licensing Magistrate refused an application by a person for a certificate of registration as a real estate salesperson where the applicant had pleaded guilty some nine months previously to stealing money from his employer. That was the same offence for which the applicant in the present was convicted. The sum stolen in Habis was a larger amount, namely $8,983. The applicant in that case had pleaded guilty, was sentenced to 100 hours community service and placed upon a bond for two years to be of good behaviour and to accept the supervision and guidance of the NSW Probation Service. Section 57.8 of the Property Stock and Business Agent's Act 1941 provided that a certificate of registration shall not be issued to an applicant who is not of good fame and character or who is not otherwise a fit and proper person to hold a certificate of registration. The Licensing Magistrate said :

The fact that there is less than one year elapsed from the date that the matters were finally disposed of is not a sufficient period of time to permit Mr Habis to satisfy this Court that he is a person in whom the trust of the Court can be reposed and a suitable person to be granted or a fit and proper person to be granted the certificate which he seeks.

Conclusions 30. In my opinion the application for registration as a valuer should be refused. I have come to this opinion for the following reasons. 31. Firstly , the nature of the profession for which the applicant seeks registration is, I think, a relevant consideration. A registered valuer is sometimes required to prepare valuation reports which may be contrary to interest of those who have engaged the valuer's services. The requirement that a registered valuer be a person of good character is necessary to ensure that he or she is able to resist any pressure from those whose interests may be contrary to the valuer's true opinion. 32. Registered valuers also give expert evidence in the court. They are in the privileged position of expert witnesses, being permitted to give evidence of opinion (section 76 Evidence Act 1995). That is something which non-experts are not generally permitted to do. Expert witnesses in the court are subject to the Expert Witness Practice Direction 1999, which includes the following statement:

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.

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11. The applicant is not unaccustomed to being trusted with relatively large sums of cash. As noted above, he was previously worked for several years in a video store owned by his father, in which he handled cash takings which ranged from about $6,000 to $12,000 every day. He said in evidence that on one occasion he overpaid himself $1,000 and which he then repaid to his father.

12. On 1 March 2000 the applicant was offered a position as Assistant Valuer with Australian Pacific Property Consultants and Valuers. One of the conditions of his employment is that he secures registration as a valuer. As noted above, the applicant is presently employed by that firm as a property researcher pending his registration as a valuer. Mr G B Roper, Managing Director of that firm, has furnished a reference in which he acknowledges that he is aware of the applicant's conviction for stealing. Mr Roper comments favourably on the applicant's enthusiasm and dedication to his duties and observes that the applicant does not appear to be a repeat offender. Mr Roper concludes by stating that whilst he would like to retain the applicant, without registration he becomes a financial luxury which he cannot afford.

13. On 8 March 2000 the applicant completed an application form for registration as a real estate valuer and lodged it with the respondent. The application form contains a number of questions. Question (ii) on the application form is:

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.

Have you been disqualified or suspended from holding any licence, permit or certificate?

To this question the applicant answered "No". On 20 May 1996, however, the applicant had been convicted at Parramatta Local court of dangerous driving, was fined $600 and disqualified from driving for nine months. The applicant's answer to question (iii) was clearly wrong. He explained his answer in evidence by stating that he misunderstood the question: he thought it related to something of relevance to his application such as a real estate licence, or auctioneer's licence or the like.

17. In addition to a number of written references the applicant called two character witnesses. One of those witnesses, Mr D C M Norman, is a family friend who has known the applicant and the applicant's family since the applicant was about six years old. The two families had initially met through their sons and have remained close friends. Mr Norman described the applicant as a respectful, forthright; and he was delighted that his son had a friend of his character. He said that the separation of the applicant's parents and the admission of the applicant's father to a psychiatric hospital had a significant impact upon the applicant. He said that it is his belief that the applicant was not thinking properly at that time. He further said in evidence:

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.

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.

20. Section 15 of the Valuers Registration Act prescribes good character as a threshold question. Unless an applicant for registration satisfies the test of good character then he or she cannot be considered for registration as a real estate valuer. The concept of good character has been the subject of a number of decided cases, some of which I refer below.

21. In Re Arnold (1932) 11 LVR 14, Pike J considered an application by a person to be registered as a land agent. Section 4 of the Land Agents Act 1927 provided that no person shall be qualified to be registered if he does not satisfy the court as to his good fame and character. Pike J said (at 14):

I think the same principles should be applied in an application by a person to be registered as a land agent as are applied by the Supreme Court when dealing with either applicants to be admitted as articled clerks or applications by solicitors, who have been struck off the role, to be re-admitted to the roll. The Court acts in order that the public may be protected and that persons who receive the imprimatur of the Court should be such that the Court can fairly recommend them to the public as honest persons in whom confidence may be reposed.

22. In Re Davis [1947] HCA 53; (1947) 75 CLR 409, the appellant was admitted as a barrister by the Supreme Court of NSW but had failed to disclose to the Barristers Admission Board or to the Court that he had some years earlier pleaded guilty to and been convicted of breaking and entering a dwelling-house and stealing articles of jewellery and clothing therein, for which offence he was released on a bond to be a good behaviour for three years. The appellant had produced certificates of good fame and character from two solicitors who did not know that he had been so convicted. The Legal Practitioners Act 1898 provided that:

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):

It would be difficult indeed that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character at the present time. It seems to me that generally speaking, a man who commits a serious crime may thereby forfeit privileges which are thereby available to honest men. One of these privileges is the entry into a profession which is in the public eye.

27. In holding that the applicant was not a person of good fame and character, Henchman DCJ said (at 9):

I cannot agree with the applicant's counsel's submission that there can be a different standard of honesty in different occupations. A man is either honest or he is not, and in my view if he is not, he is unfit for any licence of the present type granted by the public. This not to say a man convicted once on a crime involving dishonesty may never again be a fit and proper person to hold a licence, ... .

Among the functions he is to perform is the swearing of affidavits for the information of courts and the giving of evidence. It is unthinkable that a person should be certified by a court as a suitable person for a licence if that person were to have to admit in cross-examination in a court that he has been convicted of breaking, entering and stealing and was still under a bond in respect to that offence.

28. In Law Society of NSW v Foreman (1994) 34 NSWLR 408, Mahoney JA defined character as follows (at 449):

Character involves, inter alia, two thing: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. Character is tested not by what one does in good times but in bad.

29. In Re Habis (The Licensing Court of NSW, 9 July 1998, unreported) a Licensing Magistrate refused an application by a person for a certificate of registration as a real estate salesperson where the applicant had pleaded guilty some nine months previously to stealing money from his employer. That was the same offence for which the applicant in the present was convicted. The sum stolen in Habis was a larger amount, namely $8,983. The applicant in that case had pleaded guilty, was sentenced to 100 hours community service and placed upon a bond for two years to be of good behaviour and to accept the supervision and guidance of the NSW Probation Service. Section 57.8 of the Property Stock and Business Agent's Act 1941 provided that a certificate of registration shall not be issued to an applicant who is not of good fame and character or who is not otherwise a fit and proper person to hold a certificate of registration. The Licensing Magistrate said :

The fact that there is less than one year elapsed from the date that the matters were finally disposed of is not a sufficient period of time to permit Mr Habis to satisfy this Court that he is a person in whom the trust of the Court can be reposed and a suitable person to be granted or a fit and proper person to be granted the certificate which he seeks.

30. In my opinion the application for registration as a valuer should be refused. I have come to this opinion for the following reasons.

31. Firstly, the nature of the profession for which the applicant seeks registration is, I think, a relevant consideration. A registered valuer is sometimes required to prepare valuation reports which may be contrary to interest of those who have engaged the valuer's services. The requirement that a registered valuer be a person of good character is necessary to ensure that he or she is able to resist any pressure from those whose interests may be contrary to the valuer's true opinion.

32. Registered valuers also give expert evidence in the court. They are in the privileged position of expert witnesses, being permitted to give evidence of opinion (section 76 Evidence Act 1995). That is something which non-experts are not generally permitted to do. Expert witnesses in the court are subject to the Expert Witness Practice Direction 1999, which includes the following statement:

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] UKPC 17; [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.

2. The Applicant's application for registration as a real estate