Murabito v Commissioner for Fair Trading

NCAT Appeal Panel|2020-06-01|Before: Armstrong J

REASONS FOR DECISION

Mr Steven Murabito has appealed against a decision made on 4 September 2019 to dismiss his application for administrative review of a decision of the respondent Commissioner for Fair Trading to refuse an application to renew his real estate licence under the Property Stock and Business Agents Act 2002 (the PSBA Act).
On 25 March 2020, two days before the appeal was listed for hearing, the respondent applied for dismissal of the appeal proceedings under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on the ground of want of prosecution. That application was heard on 27 March 2020 and refused, with reasons published on 20 April 2020: Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 (the Summary Dismissal Reasons).
In accordance with the directions made on 20 April 2020, the hearing of the appeal was re-listed for 1 June 2020. On that occasion, for reasons explained below, directions were made for the applicant to provide his submissions in reply in writing, and for the appeal to be determined after 29 June 2020 on the basis of the material filed with the Tribunal as at that date.
For the reasons that follow, the Appeal Panel has decided not to grant leave to appeal, and to dismiss the appeal.
The name of the applicable legislation was changed with effect from 23 March 2020 to be Property Stock and Agents Act 2002, by the Property Stock and Business Agents Amendment (Property Industry Reform) Act 2018. The decision of the Tribunal below referred to the legislation by its name as at the date of application, the application for administrative review, and the determination by the Tribunal. As was the case in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63, these reasons refer to the legislation by that name.

Appeal

An internal appeal to the Appeal Panel lies as of right on a question of law, and with leave on other grounds: s 80(2)(b) NCAT Act.
The Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17 gives some guidance as to when leave to appeal should be granted, as follows: [84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45].
As noted in Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [34], the circumstances in which it is appropriate to grant leave are not fixed or closed, subject to the principle that the power to grant leave should be exercised sparingly: Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24. The circumstances where it is appropriate to grant leave identified in Collins v Urban "is not an exhaustive list": AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 at [58].

Grounds of Appeal

The grounds of appeal as stated in the Notice of Appeal raised questions of law, and grounds requiring leave.
The grounds not requiring leave were stated to be: 1. the exercise of the discretion not to ignore the dishonesty convictions miscarried, in that the Tribunal acted on wrong principle, allowed extraneous or irrelevant matters to affect the decision, and failed to take into account a material consideration; 2. the Tribunal identified the wrong issue when considering whether the dishonesty offences were on the lower end of the scale and should not be regarded as trivial, and when finding at [35] that in his regulatory dealings the appellant had acted dishonestly or deliberately or recklessly; 3. the Tribunal failed to provide adequate reasons to support the findings in [35]; and 4. the appellant was not afforded procedural fairness.
The grounds on which leave was sought were: 1. The following findings were against the weight of evidence: 1. At [11], the dishonesty offences were not on the lower end of the scale; 2. At [13], the dishonesty offences should not be regarded as trivial; 3. At [35], the implied finding that the appellant had acted dishonestly; and 4. At [35], the finding that the appellant had acted deliberately or recklessly; 1. The decision was not fair and equitable; and 2. Significant new evidence, being an updated forensic psychiatric report, is now available.

Reply to appeal

The respondent contended that no error of law was demonstrated in the Tribunal's reasons.

Material before the Appeal Panel

The procedural history of the appeal as at 27 March 2020 is recorded at paras [9]-[16] of the Summary Dismissal Reasons. As is apparent from those reasons, while the appeal was lodged on 2 October 2019 and directions were first made on 29 October 2019 for the parties to file and serve their evidence and submissions, by the time of the first hearing on 27 March 2020 the only documents that had been provided by Mr Murabito in support of his appeal were the documents emailed to the Tribunal on 26 March 2020, being two affidavits sworn on 26 March 2020, four character references, and a report by Dr Martin dated 14 February 2020. The respondent had not yet provided documents in reply.
The directions made on 20 April 2020 included directions for the respondent to file and serve submissions in opposition to the appeal and any relevant evidence provided to the Tribunal below on which it was intended to rely, by 8 May 2020. The appellant was directed to file and serve any written submissions in reply by 22 May 2020.
The respondent's submissions and evidence were received by the Tribunal by email on 8 May 2020 and in hard copy on 18 May 2020. No submissions were received from the appellant.
The adjourned hearing commenced at 10.15am on 1 June 2020. The respondent's representative stated that the documents had been sent to Mr Murabito by email on 8 May 2020, and by post to the post office box address provided; he had received an email from Mr Murabito on 15 May 2020 requesting that the documents be sent to a different post office box address, and had informed him of the address to which they had been sent.
Mr Murabito joined the virtual hearing telephone link at 11.00am. He explained that he had not provided any documents in response to the respondent's material, as he had only received the bundle of documents on the afternoon of 29 May 2020 and had not had an opportunity to read them. He requested an opportunity to respond to the respondent's submissions, stating he has now secured the services of a barrister.
The respondent's position was that the hearing of the appeal should proceed as Mr Murabito had had an opportunity to respond to the respondent's documents since 8 May 2020; in the alternative, the appeal should be dismissed under s 55(1)(b) of the NCAT Act.
The appellant's submissions received on 7 April 2020 addressed both the application for summary dismissal and the substantive appeal. Mr Murabito had explained some aspects of his appeal in the course of his oral submissions on 27 March 2020.
As at 1 June 2020, the Appeal Panel was accordingly in the position of having been provided with the appellant's evidence and submissions in support of his appeal, and evidence and submissions in reply from the respondent. The Appeal Panel considered that having regard to the guiding principle as stated in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings, and the obligations imposed on the Tribunal under s 38(5) and (6) of the NCAT Act to ensure both that the parties have a reasonable opportunity to be heard, and that all relevant material is disclosed to the Tribunal, it was appropriate to proceed by providing an opportunity for the appellant to reply to the respondent's submissions and documents, and that no further oral hearing was required. Directions were made accordingly.
The Appeal Panel has the following documents provided by the appellant in support of his appeal: 1. Written submissions dated 3 April 2020; 2. Statement of Steven Murabito dated 2 April 2020, with annexures A, B, C, 1, E, F, F, H, I, J, K; 3. Statements of Steven Murabito dated 26 March 2020, 15 June 2020; 4. Statements of Lila Murabito dated 26 March 2020, 15 June 2020; and 5. Written submissions dated 25 June 2020.
Mr Murabito seeks leave to rely on fresh evidence, being a report by Dr Adam Martin, forensic psychiatrist, dated 14 February 2020. That issue is considered below.
The documents provided by the respondent are: 1. Written submissions dated 8 May 2020; 2. Bundle of documents filed 18 May 2020 including: 1. Written submissions provided to the Tribunal dated 29 October 2018; 2. Documents provided under s 58, Administrative Decisions Review Act 1997; 3. Affidavit of Mark Elles dated 24 March 2020 in support of the application for summary dismissal; 4. Letter dated 23 March 2020 from Terra Nuovo Investments to Mr Murabito; 5. Copy of Mr Murabito's criminal history record, 27 April 2020; and 6. Affidavit affirmed by Mark Elles 4 June 2020 concerning the service of documents on Mr Murabito and communications with him.
The documents annexed to Mr Elles' affidavit of 24 March 2020 include a transcript of the hearing before the Tribunal on 28 August 2019.

Application for leave to rely on fresh evidence

Mr Murabito seeks leave to rely on a report by Dr Adam Martin dated 14 February 2020, in support of his contention that the Tribunal did not give sufficient weight to the expert evidence as to his mental health at the time of the offences. His position is, as stated in his Statement of 2 April 2020, that he was suffering from post-traumatic stress disorder after the tragic accident in 2012, and that it was not until he began seeing Dr Martin in April 2018 and entered into a properly supervised treatment plan, and that his past health challenges are now behind him.
The respondent opposes leave being granted, submitting that the appellant has not shown that there were exceptional circumstances that prevented him from leading the alleged new evidence of Dr Martin or evidence of the PTSD he was allegedly undergoing during the time he committed the offences or was making applications to the respondent; that he has not shown that the respondent would not be disadvantaged or that the introduction of the new evidence is in the interests of justice; and that the report of Dr Martin does not advance the appellant's submissions to address the issue of why the convictions should be ignored because of the triviality of the acts or the passage of time.
The issues dealing with the nature of internal appeals relevant to the receipt of further evidence were discussed in Ros v Commissioner of Police [2020] NSWCATAP 70. At [32] the Appeal Panel stated that having regard to the guiding principles under s 36 of the NCAT Act, an appeal is one akin to a rehearing, with the ability to receive further evidence if appropriate. The Appeal Panel summarised some of the relevant authorities at [33] as follows: …Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25].
The report of Dr Martin dated 14 February 2020 refers to the background, and is consistent with the oral evidence given at the hearing before the Tribunal that the appellant was self-managing his mental state through cognitive behavioural strategies. The report confirms the appellant's evidence as to post traumatic stress disorder symptoms and depression, and the impact of those conditions on decision-making. Dr Martin comments that the appellant was likely to be significantly impaired "around this time", a reference to the period 2013 to 2018.
The evidence before the Tribunal both in the form of expert reports, including a report by Dr Martin dated 5 June 2018, and the oral evidence, is discussed below. The Appeal Panel is not persuaded that the more recent report of Dr Martin would have added to the understanding of the circumstances during the period in which the Tribunal was evaluating the nature of the offending, or the length of time since that offending, in the application of s 16(2) of the PSB Act, or would have produced a different result on that issue, which was the basis on which the Tribunal affirmed the decision under review.
Leave to rely on fresh evidence in the form of the report by Dr Adam Martin dated 14 February 2020 is refused.

Consideration

The appellant was legally represented at first instance, and while the Notice of Appeal was completed by Mr Murabito, the grounds of appeal in the Notice of Appeal appear to have been drafted by a person with some legal knowledge. As discussed in the Summary Dismissal Reasons, the appellant has been legally represented for at least part of the interlocutory processes in the appeal. At [46] of those reasons the Appeal Panel noted that while Mr Murabito had stated on 27 March 2020 that he was no longer legally represented, his statement of 26 March 2020 and that of his wife of the same date were witnessed by Mr Carbone, his solicitor, and had a cover sheet with details of Mr Carbone's practice.
The Appeal Panel accepts that it is likely that Mr Murabito's legal representation ceased at some time around the end of March 2020. The grounds of appeal have since been expressed by him in different and differing terms, in Mr Murabito's oral submissions on 27 March 2020, his written submissions of 3 April 2020 and 25 June 2020, and his statements of 2 April 2020 and 15 June 2020. The Tribunal notes that the most recent submissions, received in compliance with the directions made on 1 June 2020, appear to have been drafted by Mr Murabito.
Much of the material provided by Mr Murabito takes the form of a submission that he should now be regarded as a fit and proper person to hold a real estate licence. He submits that between 2014 to 2018 when submitting annual application forms he did not believe that the driving offences constituted criminality on his part. He relies on the length of time he has been in the real estate industry, his family circumstances in particular the health issues experienced by his children, his contributions to the community as evidenced by character references, and his current financial circumstances since he lost his employment in March 2020.
The Appeal Panel notes that some of that material may be relevant should Mr Murabito apply for a new licence, however the appeal is not a rehearing of Mr Murabito's application for renewal of his licence, but limited by s 80(2)(b) to whether there are questions of law, or other grounds on which leave to appeal from the Tribunal's decision should be granted. It is relevant in that regard that the Tribunal decision did not determine whether Mr Murabito was, as required by s 14(1)(b) of the PSBA Act, a fit and proper person to hold a real estate agent's licence.
Having regard to the different ways in which Mr Murabito's challenge to the Tribunal decision have been expressed, the Appeal Panel summarises the grounds of appeal which potentially raise a question of law or as grounds on which leave is sought, as follows: 1. The Tribunal erred in the application of s 16(2) of the PSBA Act in the consideration of the passage of time, since the conviction in 2012; 2. The Tribunal did not give sufficient weight to the expert forensic psychiatric evidence as to the appellant's state of mind at the time of the offending in 2013 and 2017; 3. The Tribunal did not consider or give sufficient weight to the mental health issues suffered by the appellant; 4. The Tribunal erred in law in: 1. stating the renewal application was received on 24 January 2018; 2. finding that the offence under s 50(b) of the Road Transport Act was a criminal conviction; and 1. Procedural fairness was not applied, as at the time of offending in 2013 for drive while disqualified the appellant was suffering from a mental condition.

Whether the Tribunal erred on any question of law

In his submissions of 3 April 2020 Mr Murabito requests the Appeal Panel to consider pursuant to s 16(2) that the offences should be ignored because of the time since the offence was committed or because of the triviality of the acts giving rise to the offence, and that the Appeal Panel should take into account: 1. the context and circumstances relating to those offences; 2. the expert forensic medical reports provided; 3. the judgment with respect to the weight of the expert forensic medical reports; 4. the weight of the real estate industry character references; 5. the weight in rectitude of character demonstrated since the offences were carried out; and 6. necessity of the appellant's livelihood and family responsibilities.
The submissions of 25 June 2020 add to that list the appellant's income necessities and care responsibilities for his disabled child.
The respondent submits that the context and circumstances of the offences, and any prevailing medical opinion and opinion of any expert or judge in respect of the medical condition, was of no relevance to the question to be determined by the Tribunal. That question was whether for the purposes of s 16(1)(a) of the PSBA Act the offences committed by the appellant were offences "involving dishonesty", and committed within 10 years preceding the January 2018 application to renew the licence, and whether he had failed to disclose those offences in the application. It was not in dispute that the offences occurred within the preceding 10 years, and that the appellant failed to disclose the convictions.
The Tribunal agrees with the respondent that the relevant question for the purposes of s 16(1)(a) was whether the offences under the Road Transport Act were "offences involving dishonesty". In answering that question the Tribunal applied the reasoning of the Appeal Panel in Farah v Director-General, Department of Finance and Services [2014] NSWCATAP 23, to the effect that the issue is whether on the face of the offence, it involves dishonesty. That decision is authority for the proposition that the statutory provision creating the offence does not have to include the word "dishonest" or "dishonesty", and that it is not permissible to look behind the conviction to consider the particular facts of the case.
The Tribunal was satisfied that the offences for which the appellant was convicted in 2014, being the offence under s 50(b) of the Road Transport Act for unlawful possession of false drivers licence, "calculated to deceive", and the offence under s 175(2)(b) for stating a false name or home address to Police, held in Yelland v Commissioner for Fair Trading [2005] NSWADT 293 to be an offence which involves dishonesty, were "offences involving dishonesty" for the purposes of s 16(1)(a). The circumstances in which they were committed was not relevant to whether s 16(1)(a) was satisfied. There was no error in the Tribunal's interpretation and application of the statutory test.
In considering whether those offences could be ignored under s 16(2), the Tribunal had regard to a number of earlier decisions of the Tribunal and its predecessor as to the factors to take into account, concluding that each case turns on its own facts. The Tribunal referred to the evidence of the appellant and his wife of the various family crises which had led him to drive without a licence, and his mental health issues, which the Tribunal accepted had meant he had made some poor decisions about driving due to those family crises. As to why he obtained a false licence, the Tribunal noted that the appellant was "unable to offer a coherent explanation", only that he was not himself following the motor vehicle accident in 2012. The Tribunal referred to the appellant's evidence as to his psychiatric care, and to the character references. The Tribunal noted that in December 2017 the appellant had once more driven during a period of disqualification, and was also charged with giving a false name and home address, and recorded that while the appellant had not been convicted of that offence for the purposes of s 16(1)(a), by agreeing to have that charge dealt with as a "Form 1 offence" he necessarily admitted to the offence. The Tribunal considered the evidence as to how the appellant completed the 2018 renewal form, and the other annual personal and company licence forms.
In the application of s 16(2), the Tribunal was required to consider the time that had passed since the offences involving dishonesty were committed, and whether the acts giving rise to those offences could be characterised as trivial. The length of time since the accident in 2012 was not relevant.
The Tribunal had evidence as to the appellant's mental health in the form of a report by Sam Borenstein dated 27 September 2017 (provided in support of the application for internal review) and a report by Dr Martin dated 5 June 2018. The Tribunal heard oral evidence from the appellant as to his mental health issues and his confidence that he was now back on his feet, including evidence as to his then current treatment by Dr Martin. That evidence was addressed by the Tribunal at [20]-[23], including the observation that the developments in psychiatric care, the character references, and the evidence that family crises had now been largely overcome may have been very relevant in determining whether to exercise the discretion in determining if sufficient time had elapsed since the dishonesty offences.
There is no basis to the contention that the Tribunal failed to have regard to the expert forensic evidence both as to the appellant's state of mind at the time of offending in 2013, or in December 2017 when he drove while disqualified and gave a false name and address, or at the time of the hearing.
The submission that the Tribunal failed to give sufficient weight to the evidence as to the appellant's mental health, both at the time of offending and at the time of the hearing, does not raise a question of law. So long as there is some rationally probative evidence, there is no error of law in making a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The transcript, and the Tribunal's reasons, make it clear that that evidence was considered, and there was no denial of procedural fairness in the Tribunal reaching a conclusion contrary to that sought by the appellant based on that evidence.
In the Notice of Appeal the appellant contended there had been a denial of procedural fairness in the Tribunal having informed the appellant that the Tribunal would look favourably on issuing the licence if the more recent criminal charges were dismissed. Having considered the transcript of the hearing, there is no basis for that contention in any statement or observation made during the course of the hearing.
Mr Murabito raised two other matters in respect of which he submitted that the Tribunal had erred. The reasons make it clear (at [1] and [30]) that the Tribunal was considering the application lodged on 29 January 2018, and so any mistaken reference to 24 January 2018 is of no significance.
Secondly, at the hearing on 27 March 2020 Mr Murabito stated that he wanted to base his case on an error in describing the application as being for renewal, when it was instead a restoration application. That argument has not been pursued in the submissions provided since. In the interests of completeness the Tribunal has considered whether there is any relevant difference between a renewal and a restoration of a real estate licence.
The Appeal Panel considers that there is no relevant difference. The application form was signed by Mr Murabito on 17 January 2018, the day before his licence expired. By the time the application was received by the respondent, the licence had expired. Section 10 of the Uniform Act permits an application for restoration of a licence to be made after the licence expires. The time within which such an application can be made is limited, for a licence listed in s 17(1) including a real estate agents licence, by s 17(3)(e) of the PSBA Act to no more than three months after the date on which the licence expired. Section 19 of the PSBA Act provides that an application must not be granted unless the applicant is eligible to be granted the licence, as provided by s 14; and it is s 14(1)(d) that provides that a person is eligible to hold a licence only if the Secretary is satisfied that the person is not a disqualified person.
The appellant has not demonstrated any error on a question of law.

Whether leave to appeal should be granted

In considering whether there is any basis on which leave to appeal might be granted, the Appeal Panel notes that the Notice of Appeal was framed in terms of the leave grounds specified in cl 12 of Sch 4 to the NCAT Act. That provision applies to appeals from decisions in the Consumer and Commercial Division, and not an appeal such as this from a decision in the Occupational Division. The grounds on which leave may be granted are stated at [15] above. The submissions of the appellant are, as noted above, framed primarily in terms of the decision which the appellant considers should be made. None raise any basis on which it could be concluded that there are issues of principle or public importance, or that the fact finding task has miscarried to the extent that there is any error that could be characterised as central to the Tribunal's decision such that it would be unjust to allow the decision to stand.
Leave to appeal is refused.

Conclusion

The appellant has not demonstrated any error on a question of law, or any basis on which leave to appeal should be granted.

Orders

The orders of the Appeal Panel are: 1. Leave to rely on fresh evidence is refused. 2. Leave to appeal other grounds other than a question of law is refused. 3. The appeal is dismissed.

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: 27 July 2020

Property Stock and Business Agents Act 2002(NSW)

Property Stock and Business Agents Amendment (Property Industry Reform) Act 2018(NSW)

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Judgment (13 paragraphs)

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