Radovic v Secretary, Department of Customer Service [2025] NSWCATOD 92;

1. The Applicant sought an internal review of the refusal of her application. In November 2024, the Respondent affirmed the original decision.
2. The Applicant has applied to the Tribunal for external review of the Respondent's decision under section 55 of the Administrative Decisions Review Act 1997 ("the ADR Act").

1. The Applicant was arrested in July 2020 and charged with knowingly participating in drug supply by allowing her friend to use her motor vehicle for that purpose. The Facts Sheet relating to the charges, amended to remove details of private individuals and some personal information, included:

On Saturday the 11 of July 2020 Police were performing proactive patrols in relation to drug dealers operating in the Cronulla area. Police are aware it is common practice for drug dealers to sell their product through mobile phones and messaging apps then deliver by vehicle around the night clubs and main areas of Cronulla on Friday and Saturday nights.

About 10:20pm on Saturday the II of July 2020 police were monitoring ... Police observed a Black 4 door Audi A3 bearing NSW plates ..., with a female driver and one female passenger stop on the corner ... As the vehicle stopped a female ... approached the vehicle and signalled to the female passenger by pointing. The female climbed in the rear seat of the Audi. Police witnessed the Audi drive West ... a short time later the Audi drove back ... in a Southerly direction and turned left ... then parked on the right-hand side. Once the vehicle stopped the female exited the vehicle from the rear and started walking back ...

Police approached the driver's side window and introduced themselves to the driver, who produced NSW Driver's Licence ... in the name of Anastasija RADOVIC from her mobile phone ... The accused remained quiet whilst the passenger kept talking to Police. Police requested the passenger's identification. The female passenger produced NSW photo ID card ...

Police submitted the accused to a person search which resulted in nil finds on her person. The passenger exited the vehicle and was searched with no finds. Once both females had. been searched a vehicle search began. This resulted in Police locating a medium sized coffee cup in the holder in the centre console of the car. Police removed the top of the coffee and found a small bag containing 5.93 grams of cannabis and another bag with 22 small clear resealable bags inside, containing white powder believed to be cocaine. This later provided a total weight of 13.5 grams for the cocaine. Police informed the accused that she was under arrest for drug supply.

The accused was questioned about the phones and she stated one was hers and provided the pass code to Police. The passenger was questioned about the other phone and she stated it was hers, but she refused to provide police with the pass code.

Police also located a sunglasses case in the storage area on the side of the door with a small resealable bag containing a mixture of tobacco and cannabis and a blister pack of 6 Valpram tablets (Diazepam). ...

The accused was conveyed to Sutherland Police station where she was booked into custody. She was read her rights under part 9 of LEPRA. She was offered the opportunity to participate in electronically record interview which she refused. ...

The accused knowingly took part in supply of cocaine by allowing her vehicle to be used by the co-accused.

1. As noted, the Local Court dealt with the matter in August 2020. In July 2024, the Applicant applied for a certificate of registration as an assistant agent. It is not in dispute that the Applicant has the necessary qualifications for the certificate.
2. The Respondent refused the application on the basis that the Applicant was not a fit and proper person to hold a certificate of registration. The decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

1. The issue before the Tribunal is whether the correct and preferable decision is to grant the application. This requires consideration of whether the Applicant is a fit and proper person to hold a certificate of registration as an assistant agent.

1. In NSW the Act regulates the carrying on of business in the real estate industry under a licence or certificate of registration. Under section 27 of the Act the Tribunal has jurisdiction to review a decision of the Respondent to refuse to grant a certificate of registration. This jurisdiction is exercised under the ADR Act.
2. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34].
3. Under section 28(2) of Civil and Administrative Tribunal Act 2013 ("the NCAT Act") the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: section 38(2) of the NCAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

1. A person cannot act as an assistant agent, unless they hold a certificate of registration. Assistant agents must be employed by a licensed real estate agent and hold a certificate of registration: sections 10(1) and 11(1) of the Act.
2. Section 14 of the Act sets out the eligibility criteria to hold a licence or certificate of registration. Section 14 (3) provides:

(3) A person is eligible to hold a certificate of registration only if the [Respondent] is satisfied that the person -

(a) is an individual who is at least 16 years of age, and

(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

1. Section 19 of the Act requires the Secretary to refuse to grant an application unless the applicant is eligible to be granted the certificate of registration concerned.
2. It is not in dispute that the Applicant has met the age and qualification requirements in subsections 14(1)(a) and (c) of the Act and it is not argued that the Applicant is a disqualified person: subsection 14(1)(d) of the Act. However, the Respondent contends that the Applicant is not a fit and proper person to hold a certificate of registration: subsection 14(1)(b) of the Act.

1. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal.
2. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
3. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision 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.

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.

1. 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.

1. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7):

"The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. 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."

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act ("the section 58 material"). This material includes records relating to the Applicant's application for a certificate and material related to her offences. The statement of agreed facts and the Applicant's record are also included. The Respondent's solicitor, Ms Sierra Gordillo, also provided written and oral submissions.
2. The Applicant relies on her own evidence and submission provided by her solicitor, Mr Wrench. She also relies on a number of additional documents, including:
   • a letter of support from Psychologist Ms Dajana Bjelosevic;
   • Character References from Fr Aleksandar Milutinovic, Ms Natalie Novakovic and Mr Draza Subotic;
   • Employment References from Mr Tim Doyle and Ms Julie Latham of Ray White Campbelltown.
   • Drug Test result dated 20 January 2025
3. The Applicant attended the hearing, gave evidence, and was cross-examined.

1. The Respondent submits that the correct and preferable decision is to affirm the decision to refuse the application as, at this time, there is a tangible concern regarding the Applicant's fitness and propriety to hold a certificate of registration. She knowingly took part in the supply of cocaine by allowing her vehicle to be used by the co-accused.
2. The Respondent noted that the Applicant was convicted of:

(1) an offence under section 25(1) of the Drug Misuse and Trafficking Act 1985 for the supply of a prohibited drug;

(2) an offence under section 10(1) of the Drug Misuse and Trafficking Act 1985 for possession of a prohibited drug; and

(3) an offence under section 16(1) of the Poisons and Therapeutic Goods Act 1966 for possession / attempt to prescribe a restricted substance.

1. The Respondent submitted that drug related offences are serious, and knowingly participating in the supply of a prohibited substance cannot be considered a trivial matter. This is reflected in the fact that the Applicant was sentenced to a Community Correction Order ("CCO") for a period of 18 months and fined $400. A CCO is a serious sentence, being an alternative to imprisonment. The CCO only concluded on 22 February 2024.
2. The Respondent submits that not only is character tested in bad times and under pressure, but character should be assessed while one is free from the deterrent effect of the criminal justice system, including being under a CCO. In the circumstances, the Applicant has not demonstrated a sufficient period of good behaviour without an overhanging criminal matter.
3. The Respondent further submits that where an applicant has been convicted of offences, and claims to have been rehabilitated, the applicant has a practical onus to establish that this is the case: see Lee v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 101 at paragraph [51].

1. The Applicant's evidence is that at the time of the offences she was 20 years old. Since that time, she has taken steps to change her life. She is employed in the real estate industry and sees that as her preferred career option.
2. As shown by her references in support, she has the support of her family, her employers and her church. She is supported by people who are able to offer her assistance in avoiding offending in the future. She has ceased having any association with her co-accused. She does not use prohibited drugs or associate with people who use prohibited drugs. She has continued to receive professional support from her psychologist, Ms Dajana Bjelosevic. She has been actively engaged in therapeutic work to address and overcome significant personal challenges. She has a strong commitment to her personal growth and mental health.
3. At the time of the offences, the Applicant was dealing with significant mental health issues. She has since completed the court-mandated treatment and has voluntarily continued treatment with her psychologist.
4. Ms Bjelosevic has provided a letter of support in which she indicated that the Applicant's progress in therapy has been substantial. She has made significant strides in building self-compassion and resilience. Her proactive approach to her mental health demonstrates her capability to handle personal and professional responsibilities effectively.
5. The Applicant's solicitor, Mr Wrench, submitted that the offences involved a one-off incident which has not been repeated. She was not involved in the actual supply of prohibited drugs, and she cooperated with police by providing them with the PIN code to her phone. She took accountability for her wrongdoing by virtue of her plea. She regrets what she did and has made steps in improving her mental health.
6. Mr Wrench submitted that the Applicant's age is a significant factor in determining whether or not the period of time since the offending is sufficient. At the time of the offence, the Applicant was 20 years old. She is now 24 years old and there has been significant maturation in that time. The offending occurred in July 2020, five years ago. The Magistrate did not order supervision as he did not regard the Applicant as a risk of further offending. The CCO expired in February 2024 without incident.
7. In all the circumstances, the Applicant submits that she is a fit and proper person to hold a certificate of registration as an assistant agent.

1. The issue that the Tribunal must determine is whether the Applicant is a fit and proper person to hold a certificate of registration as an assistant agent. This is to be determined in relation to the role that the Applicant would undertake as an assistant agent. She would need to be employed by a licenced agent and tasks she would undertake could include conducting open houses and conducting property inspection. These tasks would require that she meet standards of care, skill and diligence.
2. As an employee, she would not be responsible for trust accounts, but she might still be involved in transactions which involve significant sums of money.
3. In considering the question of fitness and propriety the Tribunal can take account of matters such as the Applicant's record, the nature and severity of the offences, the circumstances of the offences, the time that has passed since her offences and whether there have been any repeat offences and what steps she has taken since the offences occurred which indicate whether she has demonstrated a commitment to leading a law-abiding life.
4. I agree with the Respondent that the offences were not trivial. However, on the evidence before me, the other factors for consideration can mostly be weighed in the Applicant's favour.
5. She has not previously held a certificate of registration as an assistant agent and the offences were not related to any position in the industry. It appears that the incident was one-off and has not been repeated. She cooperated with police in relation to the incident, she did not dispute the allegations, and she entered a guilty plea.
6. At the time of the offences, she was young and vulnerable. She has ceased having any association with her co-accused. She does not use prohibited drugs or associate with people who use prohibited drugs. She has continued to receive professional support from her psychologist. As shown by her references, she has the support of her family, her employers and her church.
7. Five years have passed since the offending occurred. The CCO expired in February 2024 without incident. In my view, the period that has passed since the offending is sufficient for me to be satisfied that the likelihood of further offences is minimal.
8. In the circumstances, I am satisfied that the Applicant is a fit and proper person to hold a certificate of registration as an assistant agent.
9. As there is no other basis on which the application should be refused, it follows that the correct and preferable decision is to grant the application. The decision under review should be set aside and the certificate of registration should be granted.

(2) The decision is made that the application by Ms Anastajia Radovic for a certificate of registration under the Property and Stock Agents Act 2002 is granted.

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.