Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation

Background

1. It is common ground that the Applicant was convicted of the offence of 'cause grievous bodily harm to person with intent (DV) - SI' in relation to an incident that occurred on 9 December 2012. She stabbed her former partner in his upper stomach area. The victim underwent surgery and remained in a critical condition for some days. He has subsequently suffered considerable complications, which have required further surgery and will require further surgery. He suffered both psychological and physical impact from the attack.
2. The Applicant was charged shortly after the incident. She pleaded guilty to the charge. She applied for and was granted bail on 20 March 2013 pending the sentence hearing. On 13 June 2014 Judge Haesler SC sentenced the Applicant to 5 years imprisonment with a non-parole period of 2 years and 6 months. She is currently on parole and will remain so until 2 March 2019.
3. Judge Haesler found that the Applicant and her former partner had been in a volatile relationship characterised at times by excessive alcohol use. She had been subject to domestic violence at the hands of her former partner. In assessing the Applicant's motivation and the moral culpability Judge Haesler took account of the fact that there had been a volatile relationship and that the offender was subject of domestic violence in that and other relationships.
4. Judge Haesler also found: The maximum penalty for this offence is 25 years imprisonment. There is a standard non parole period of seven years. There are reasons for departure and significant departure from the standard non parole period. The first is the plea of guilty. The second is her prior good character. Third, my assessment that she poses little risk to the community in the future. Fourth, is her need for continuing treatment in the community, while she may get some treatment in custody, my experience over many years has been that that is limited. There is also the need for moderation of the objective circumstances of these offences because of her psychological condition at the time the offences were committed, reducing her moral culpability. There are also reasons for departure in my finding of special circumstances. ...
5. The Respondent determined to refuse the Applicant's application on the basis that she was not a fit and proper person to hold a certificate of registration under the Act. The decision took into account the nature of the offence, the severity of the sentence imposed, and the fact the Applicant will remain on parole until 2 March 2019. The decision was affirmed on internal review.

Issue for determination

1. The issue for determination is whether the Applicant is a fit and proper person to hold a certificate of registration under the Act.

Applicable legislation

1. The parties are in general agreement regarding the applicable legislation. Section 17 of the Act provides for the grant of a certificate of registration as a real estate salesperson. Section 19 of the Act provides that an application must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned as provided by section 14 of the Act.
2. Section 14 of the Act provides that: 14 Eligibility for licence or certificate of registration … (3) A person is eligible to hold a certificate of registration only if the Secretary is satisfied that the person: (a) … (b) is a fit and proper person to hold a certificate of registration, and (c) has the qualifications required for the issue of a certificate of registration of the type concerned, and (d) is not a disqualified person. …
3. The Act does not define the term "fit and proper".
4. The expression "fit and proper" has been considered in numerous decisions of this and other Tribunals. Each of the parties has referred to a number of decisions in which the expression was considered. They are in general agreement in that regard.
5. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
6. It is generally accepted that a person's fitness and propriety needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
7. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
8. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
9. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
10. In relation to an applicant's past criminal conduct, in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] the Tribunal stated: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.
11. The mere fact of a conviction will not necessarily result in a person being found not fit and proper for a particular purpose. In the High Court case Ziems v The Prothonotary of The Supreme Court of New South Wales (1957) 97 CLR 279, Taylor J made the following comment, at 302: "I find it impossible to assent to the proposition that proof of the fact of the Appellant's conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers. The vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession".
12. The gravity of the Applicant's offence is clearly relevant to the assessment of fitness and propriety. In Wilson v The Commissioner for NSW Fair Trading [2014] NSWCATOD 79, which involved review of a decision to refuse an application for a real estate salesperson's certificate under the Act, Senior Member Naida Isenberg commented [at 25]: "...offences involving large sums of money (as in Hunt v Director General, Department of Services Technology and Administration), or assault occasioning actual bodily harm (as in Nizhnikov v Commissioner for Fair Trading) are likely to require a longer period before which they could be safely ignored, given that one of the underlying purposes of the PSBA Act is consumer protection: Second Reading Speech 9 May 2002."
13. Section 20 of the Act provides that a certificate of registration may be granted subject to conditions. It provides: 20 Conditions--general A licence or certificate of registration may be granted subject to conditions, including (but not limited to) conditions of the following kind: (a) a condition prohibiting the holder from exercising functions under the licence or certificate of registration otherwise than as an employee of a licensee whose licence does not contain such a condition, (b) a condition requiring the holder to undertake or complete a specified course of studies within a specified period of time, (c) a condition requiring a licensee or holder of a certificate of registration to undertake by way of professional development specified further education or training during the term of the licence or certificate of registration, (d) a condition prohibiting the holder from exercising functions under the authority of the licence or certificate of registration in relation to specified activities, or prohibiting the holder from exercising functions under the authority of the licence or certificate of registration except in relation to specified activities. Note : An example of a condition under paragraph (d) is a condition that the holder of a real estate agent's licence act only as a buyer's agent.
14. The Applicant has requested that she be given a certificate of registration subject to the condition that she does not undertake real estate sales.

The Respondent's case

1. The Respondent relies on the fact and severity of the Applicant's offence and conviction and the sentence that was imposed. Its case is essentially that as the Applicant has remained incarcerated or on parole since the time of her conviction, the effluxion of time since her conviction should be afforded little weight in assessing her current fitness and propriety.
2. The Respondent also notes that the Applicant's abuse of alcohol was a factor in the commission of the offence. It is submitted that while a condition of the Applicant's parole order is that she must totally abstain from alcohol and she has been compliant with all her parole conditions, the Applicant is not yet in a position to demonstrate that she is able to restrain from alcohol abuse while not under supervision.
3. The Respondent acknowledges that the Applicant has taken steps towards rehabilitation, including participation in a work release position while in gaol, completion of units of study towards a Bachelor of Arts while in gaol and on parole, and employment with Real Property Agents following her release on parole.
4. The Respondent also accepts that the Applicant has provided evidence that she has been assessed as being of low risk of reoffending. The sentencing Judge came to the view that the Applicant posed little risk to the community in the future, and took this into consideration in determining the total sentence and non-parole period. However, the Respondent submits that the Applicant still has over 12 months remaining of her sentence which is to be served in the community on parole. The Respondent submits that the fact the Applicant remains on parole means that she has not demonstrated that she is rehabilitated through a period of good behaviour in the community when she is not subject to the supervision that parole entails.
5. The Respondent concedes that the fact the Applicant is on parole is not an absolute bar to her being found to be a fit and proper person, but submits that it is an important factor to be considered.

The Applicant's case

1. The Applicant's evidence is that she seeks the certificate so that she can take on additional duties in the agency where she is working. This would permit her to perform an administrative role assisting the property manager such as issuing rent receipts, reconcile accounts, deal with holiday lettings and maintenance issue e.g. processing tenancy repair requests and property owner matters. She only wishes to perform a limited role and does not wish to conduct property sales. She submits that this could be achieved by the grant of a certificate that is subject to conditions. She wishes to be able to be of greater assistance to her employer and to use the role as a training opportunity. At some time in the future she could then apply for removal of the conditions so that she could undertake sales activities.
2. She accepts that at the time of her offence she was not a fit and proper person to hold a certificate of registration. However she contends that the offence was a one-off incidence; that prior to the offence she was of good character and that since the offence she has been of good character. She denies that there has been any history of intimidation, inducements or dishonesty that suggest that there would be any risk to the public if she were granted the certificate of registration.
3. Prior to her conviction the Applicant spent approximately 15 months on bail and lived independently for most of that time. She used the time on bail to address mental health and other issues.
4. Throughout her prison sentence she received additional psychological support and she participated in education programs. She enrolled in studies for a Bachelor of Arts degree through Charles Sturt University distance education and has continued and excelled in those studies.
5. She also engaged in work activities. In 2015 she secured employment in the Corrective Services Logistics Unit - an external placement involving dealing with the public daily. In February 2016 she was offered a work release position and worked in that role until her release in September 2016.
6. The Applicant has also produced a number of supportive character references. These included references from her employer, Mr Ross Earby; a co-worker, Mr James Coburn; and the Applicant's daughter, Ms Amy Paton. Mr Earby and Ms Paton attended the hearing and gave evidence in support of the application. They attested to the Applicant's good character and good conduct since she was released from custody.
7. Mr Earby gave evidence that the Applicant has worked in his real estate agency after he approached her about 12 months ago and offered her an administrative role in the office. He said that the Applicant was completely open and honest with him in regard to her criminal history. She has worked in the office part time 20+ hours per week since 17 February 2017 and she is a well-respected member of the team. Mr Earby stated that if the Applicant were granted the certificate that she is seeking it would greatly assist the agency as she would be able to assist with additional administrative work, referral of sales and the workload of other staff could be reduced. Over time, as her skills were developed, she may be able to progress into a sales role if she was interested in doing so. However, the immediate work that she would undertake would not include sales.
8. Ms Paton stated that the Applicant lived with her and her family for several weeks on her release from custody and that they continue to be in contact on an almost daily basis. She believes that the Applicant is hard-working, reliable and honest and that she is well suited to the role that she wants to play in Mr Earby's real estate agency. She said that the Applicant regards it as a valued opportunity that she doesn't take lightly.
9. The Applicant submits that she has been of good character since being released from custody. She says that her offending behaviour was an aberration and that she has otherwise always been of good character. She says that, therefore, there is little chance of her relapsing or reoffending. She submits that she is a fit and proper person to hold a certificate of registration under the Act.

Discussion

1. It is common ground that the Applicant's offence was a serious offence, and the sentence imposed was a significant term of imprisonment. It is also common ground that at the time of her conviction, she was not a fit and proper person to hold a certificate of registration as a real estate salesperson.
2. The parties disagree in regard to whether the steps that the Applicant has taken towards rehabilitation and the time that has passed since the offence is sufficient to be satisfied that she is now a fit and proper person to hold a certificate of registration.
3. I have referred above to the underlying consumer protection purposes of the Act. I agree with the Respondent that the real estate industry is one which is in the public eye. Real estate agents and real estate salespersons are vested with a high level of trust by members of the public, being entrusted with large sums of money to be held in trust accounts and provided with access to consumers' homes. The standard of fitness and propriety required of holders of certificates of registration under the Act is therefore high.
4. In Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 I commented: "The legislation that regulates the real estate industry is not only protective of consumers. It also aims to safeguards the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour with the regulator is also required to maintain that public confidence. It is imperative that licensees can be trusted to protect the interests of the community."
5. This is a matter in which there is no suggestion that the Applicant has ever engaged in dishonest conduct. The available material suggests that there is very little chance of the Applicant engaging in conduct that would negatively impact on those dealing with the agency in which she is working. That being the case, it is difficult to identify any issue that would give rise to any consumer protection issues other than the fact that the Applicant has been convicted of a serious offence and that she still has over 12 months remaining of her sentence to be served while on parole.
6. I note the Respondent's submission that the fact the Applicant remains on parole means that she has not demonstrated a period of good behaviour in the community when she is not subject to the supervision that parole entails.
7. Each of the parties has referred to my decision in Rosenstrauss where I stated at paragraph [86] that I did not think that an applicant "must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation and that he has an understanding of the need for candour with the regulator to maintain public confidence in the industry".
8. The Respondent submits that there are a number of factors which distinguish Rosenstrauss from the current matter. Firstly, the offences for which Mr Rosenstrauss was convicted in 2011 had been committed between 1979 and 1981. There was evidence of his long history of operating in the real estate industry without incident in his role as a licensee. Further, most of the clients of the business at which Mr Rosenstrauss was employed were aware of his conviction and he was prepared to inform new clients of the conviction if such a condition were imposed.
9. The Respondent has also referred me to a number of authorities for the proposition that a person's status as subject to a bond or parole is an important consideration in assessing whether that person is fit and proper.
10. In McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 the Land and Environment Court refused a person registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view the court took into account the fact that Mr McEvoy was still under a bond in respect of a serious criminal offence. In coming to that view the Court said: "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)."
11. Neither party has been able to refer me to any cases in which a finding was made that a person who was still on parole is a fit and proper person to hold a certificate of registration under the Act.
12. In my view the consumer protection purposes underlying the Act must take precedence over the personal interests of the Applicant. If there is any discernible risk to the public that would flow from the grant of the certificate to the Applicant because of her character, then the certificate should not be granted.
13. That does not appear to me to be the case in this matter. The question as to the Applicant's fitness and propriety must focus on her fitness and propriety to hold a certificate of registration under the Act. In that enquiry I must consider what it is about her character now that would render her unfit to hold the certificate. In my view, there is nothing that warrants such a conclusion. This view is not altered by the fact that she still has over 12 months remaining of her sentence to be served while on parole.
14. On the contrary, it is likely that her professionalism, trustworthiness, honesty and loyalty will be of benefit to the industry.
15. It is without question that the Applicant's offence was a serious offence. However, in my view the circumstances and nature of the offence do not have any bearing on her ability to work in the real estate industry and to do so competently and honestly. The available material all suggests that her offending conduct was an aberration, and out of character. It is unlikely to be repeated, particularly given the significant impact that it has had on her life. In my view it unlikely that she will engage in improper conduct in her work in the real estate industry and the general community can have confidence that such improper conduct will not occur.
16. I am satisfied that the Applicant has the knowledge, honesty and ability to perform the tasks that would be authorised by the certificate. She is possessed of sufficient moral integrity and rectitude of character as to permit her to be safely accredited to the public as a person to be entrusted with the sort of work which a certificate permits her to perform.
17. Mindful as I am of the consumer protection purpose of the Act, I am satisfied that she is a fit and proper person to hold a certificate of registration under the Act.
18. However, I note that she has indicated that she does not seek to undertake real estate sales tasks and has suggested that the certificate be granted subject to the condition that she not undertake such work. Mr Earby has also indicated that the tasks that the Applicant would perform would not involve real estate sales. I agree to that condition. However, it is my view that the condition should not restrict that Applicant from benefitting from any involvement in real estate sales activities that are intended to be purely educative.

Orders 1. The Respondent's decision to refuse Ms Offner's application for the grant of a certificate of registration under the Property, Stock and Business Agents Act 2002 is set aside. 2. The decision is made that Ms Offner's application for the grant of a certificate of registration under the Property, Stock and Business Agents Act 2002 is granted subject to the condition that she is not to undertake real estate sales.

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: 21 February 2018