Salcedo v Commissioner for Fair Trading

Legislative scheme for reviews by the Tribunal

1. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (CAT Act). The objects of the CAT Act include enabling the Tribunal to review certain decisions and ensuring that the Tribunal's processes are open and transparent (s 3(b)(ii) and (f)).
2. The Administrative Decisions Review Act 1997 (ADR Act) provides at s 9 that the Tribunal has jurisdiction to review certain decisions of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act. Section 63 provides that in determining an application for an administrative review the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. In exercising its powers, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. The Tribunal may affirm, vary or set aside the administrator's decision and make a decision in substitution for that decision or remit the matter for reconsideration by the administrator.
3. The Property, Stock and Business Agents Act 2002 (the Act) provides at s 27 that a person may apply to the Tribunal for an administrative review under the ADR Act of any decision of the Director-General to refuse to grant a licence or certificate of registration to the person. The Act also provides that "Director-General" means the "Commissioner for Fair Trading, Department of Finance and Services" who is the Respondent in this matter.
4. There is no dispute that the Tribunal has power to affirm, vary or set aside the decision to refuse the Application.

Legislative scheme for granting the Application for the Certificate

1. The Act provides for the regulation of property, stock and business agents and amongst other matters outlines the procedure for obtaining Certificates. Relevant excerpts of the Act are below: 14 Eligibility for licence or certificate of registration (3) A person is eligible to hold a certificate of registration only if the Director-General 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 (d) is not a disqualified person. 16 Disqualified persons (1) A person is a disqualified person for the purposes of this Act if the person: (a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General has determined under subsection (2) that the offence should be ignored, or … … (2) The Director-General may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. 19 Certain applications to be refused An application must not be granted unless the applicant is eligible to be granted the … certificate of registration concerned (as provided by section 14).
2. All references to sections in these reasons are to sections of the Act unless otherwise stated.

Evidence before the Tribunal

1. The Commissioner relied on a 43 page bundle of documents filed pursuant to s 58 of the ADR Act and oral submissions by Mr Maynard. The Applicant relied on his Application, his email of 11 August 2015 to the Commissioner together with attachments to that email, his request for an internal review and a handwritten letter dated 24 September 2015 in support of that request, all of which form part of the s 58 documents. Mr Salcedo gave oral evidence to the Tribunal and also made oral submissions.

The Applicant's case

1. In summary the Applicant's case as expressed in his written communications to the Commissioner are as follows. 1. He is ashamed of the shoplifting offence and conviction. 2. He did not disclose the conviction because of a misunderstanding between himself and two constables. He is working with the constables in a matter that cannot be disclosed for his own safety. 3. His father, with whom he had not previously lived, brought him to Australia. He had a massive disagreement with his father and they could not get on with each other. At the time of some of the disagreements he was still going to school and his father kicked him out of home so he went to live with a friend. He had no clothes and no money and wrote "I went to Westfield in the city and tried to get some clothes and I got caught doing something silly I was not supposed to do". He did not have bad intentions, he was simply going through a tough financial position. Now that he has a way to progress, the past is not allowing him to go forward and he is deeply sorry.
2. He is looking "after an entire family".
3. He knows that he has made some mistakes in the past which he cannot change, however he requested that the Commissioner review his Application and hopes that there might be a second chance in life.
4. He always tries to live with harmony and love and he always had high ideals and is a person of great personal integrity and keeps his mind focused on prosperity. He acknowledges his guilt and knows that what he did was wrong. He has had difficult times and experiences since his arrival in Australia. He had some support from his sister. His only job was based on commission. His income could not cover everything because he wasn't great at the job.
5. Centrelink had declined his applications for government funds several times. His father did not want to sign any Centrelink documents and as he was still under 21 everything he did was for his survival. He asked for a second chance. He said that he had a mother grandmother and a sister in Peru, his mother and grandmother were very sick and both were in need of medical assistance. "I have no dependents and I rent a single room, but I do need to look after my family."
6. In the course of his oral testimony the Applicant said: 1. He took the bag from the gym. He needed to eat and purchased food with the credit card he obtained from the bag. That was wrong. 2. He was applying for jobs. His sister had organised some casual work for him. He has been very close to his sister since he arrived in Australia. She was the only one who supported him. 3. He was fined because he did not pay a fair on public transport. He is paying the fine off over time. 4. He acknowledged that when he turned 21, on 27 February 2016, he would be able to apply to Centrelink for benefits without his father's signature. 5. He has reflected on what he has done wrong; he has helped the Salvation Army; he has assisted some Aboriginal people to obtain clothes; he has had counselling and the assistance of psychologists organised by Monica who works with the Correctional Centre Probation Service. He is required to report to her every two weeks for a 12 month period. He has spoken with Brian at the Wesley Mission who counsels him and it is time for him to change what he has been doing.
7. In the course of cross-examination Mr Maynard said that many jobs do not require a statutory certificate. The Applicant said he has worked in kitchens and in marketing and wants a better job and the Certificate would help him. He said he is a good person and likes to help other people.
8. I asked the Applicant why I should reverse the decision of the Commissioner and grant his Application. The Applicant said he had wasted his time with people in Blacktown. Despite what other people did he did not get involved in drugs and did not smoke. He loved Australian people and the weather. He would never do anything wrong again. He wanted to have a car and a better life.

The Commissioner's case

1. The Applicant was convicted on 7 August 2013 of "shoplifting" property with a value of less than $2,000 and fined $150. On 16 September 2015 the Applicant was convicted of the offences of "Larceny" and "Dishonestly Obtain Property by Deception". Charges of "Dishonestly Obtain Financial Advantage by Deception" were taken into account in sentencing.
2. The Applicant did not dispute the convictions nor that they all related to offences involving dishonesty.
3. The Application was dated 3 June 2015 and in response to a question "Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?" the Applicant answered "No".
4. Each of the Original Decision and Review Decision provided in identical wording a summary of details from a Facts Sheet prepared by the NSW Police for the Local Court on 6 July 2015. The Applicant did not dispute the facts stated in the summary, they are set out below: Mr Culque Salcedo entered a gym in Alexandria and by unknown means removed a locker padlock and took a gym bag belonging to another person (the Victim) which contained a number of items including a St George Visa debit card, car keys, house keys, clothes and a silver Samsung mobile phone. Mr Culque Salcedo attended Chemist Warehouse in Marrickville to purchase Swiss Fish Oil tablets using the Paywave facility on the Victim's St George Visa debit card to pay for the transaction. The incident was captured on high quality colour CCTV. Mr Culque Salcedo then made three separate purchases at Woolworths Marrickville Shopping Centre. These purchases were valued at $95.09, $94.05 and $93.41 respectively allowing Mr Culque Salcedo to use the Paywave facility on the Victim's St George Visa debit card to pay for each transaction, without having to use the Victim's PIN code. These incidents were captured on high quality colour CCTV. Mr Culque Salcedo next paid for two taxi fares using the Paywave facility on the Victims St George Visa debit card. Lastly Mr Culque Salcedo used the Paywave facility to purchase items amounting to $95.85 at KFC Restaurant Earlwood. On Tuesday 14 April Mr Culque Salcedo attended Ashfield Police Station in relation to an unrelated matter and was identified after viewing CCTV stills in relation to the above-listed offences. Items of his clothing and accessories that were identified in the CCTV stills were seized. Police later attended his home where he rented a single bedroom and found the Victim's silver Samsung mobile phone. On another occasion the Police also found the same T-shirt and sunglasses that Mr Culque Salcedo was wearing in the CCTV footage of the offences, a container of Swiss Fish Oil tablets and receipts confirming that Mr Culque Salcedo had attended the Alexandria gym a few days before the offences occurred. Mr Culque Salcedo admitted to Police that he had been to the Alexandria gym but not on the day the offences were committed. He denied stealing the Victim's property claiming to have found the wallet and credit card in Alexandria on a bench. Mr Culque Salcedo admitted to using the St George Visa Debit Card in each of the transactions specified stating that he used it "For food".
5. In summary Mr Maynard's oral submissions for the Commissioner were that: 1. The Applicant was not eligible to hold a Certificate unless the Commissioner was satisfied that he was a fit and proper person and was not a disqualified person (s 14 (3)). 2. The Applicant had stated that he did not disclose the 2013 conviction in his Application because two constables from Redfern police station and the Applicant had a bit of a misunderstanding as he was working with them in a matter that could not be disclosed for his safety. No clarification of this reason was provided to the Commissioner. The Applicant's written communications to the Commissioner were taken into consideration in determining that he was not a fit and proper person to hold a certificate as required by s 14 (3) (b). 3. The Applicant was a disqualified person pursuant to s 16 (1) (a). 4. The Commissioner had taken into consideration the written communications from the Applicant which were included with the s 58 documents and decided not to ignore the offences under s 16(2) because: 1. he did not consider that the acts or omissions giving rise to the offences were trivial; 2. the shoplifting offence was committed some two years before the Application and the fraud offences were committed only five months before the Review Decision; 3. while the Applicant had experienced some difficulties in his personal life, sufficient time had not passed since the offences involving dishonesty were committed so as to warrant ignoring the offences.
6. Mr Maynard referred the Tribunal to the eligibility provisions in s 14 (3). The Commissioner accepted that the Applicant met the age requirement and had satisfied the requisite educational qualifications. The Commissioner gave particular attention to the requirements that he be satisfied that the Applicant "is a fit and proper person to hold a certificate of registration" and "is not a disqualified person".
7. Mr Maynard submitted that in relation to the fit and proper test the Commissioner relied on Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at [9] and in Australian Broadcasting Tribunal v Bond ("Bond Media case") [1990] HCA 33; (1990) 170 CLR 321 at [36]. The Applicant's explanation of his failure to disclose the 2013 dishonesty offence was insufficient.
8. In relation to the Commissioner's decision to not determine that the dishonesty offences should be ignored either because of the time that had passed since the offences were committed or because of the triviality of the act or omissions giving rise to the offences Mr Maynard submitted that: 1. The Commissioner relied on Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218 at [15] to [19], Wilson v The Commissioner for NSW Fair Trading [2014] NSWCATOD 79 at [19] and Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [55] as authorities to the effect that a longer period was required. Mr Maynard also submitted that at the time of the hearing the Applicant was still under probation in respect of the 2015 offences. 2. The multiple offences of dishonesty, including taking and using a credit card and taking other items from the gym bag which he stole were not trivial offences and could not be ignored.

Generally

1. I agree with Mr Maynard that a person requires a certificate of registration in order to be or remain a real estate salesperson in the employment of a person licensed or required to be licensed under the Act (s 10 (1)).
2. Section 14 provides for the eligibility provisions in respect of a certificate of registration, the educational qualifications are set out in s 15 and the issues concerning a disqualified person are in s 16. Section 19 provides that unless the Applicant is eligible to be granted the Certificate as provided by s14 then the Application must not be granted.
3. There is no disagreement that the Commissioner is satisfied in respect of the provisions of s 14 (3) (a) and (c) in respect of the age of the Applicant and the holding of relevant educational qualifications.

Fit and proper s 14(3)(b)

1. In referring to Hughes & Vale and the Bond Media case Mr Maynard has mentioned two of the leading authorities which have been cited and followed on numerous occasions in this Tribunal and previously in the Administrative Decisions Tribunal in relation to the meaning of "fit and proper".
2. In Hughes & Vale Dixon CJ, McTiernan and Webb JJ said at [9]: 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:
3. In the Bond Media case Toohey and Gaudron JJ said at [36]: 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.
4. I observe that the Applicant has not disputed the accuracy of any of the statements of fact contained in the s 58 documents, in particular the statements attributed to police officers.
5. The Applicant has expressed remorse for his dishonest actions in 2013 and in 2015 and provided explanations that they were occasioned because of his lack of money, family disagreements and a lack of assistance from others. He has provided no corroboration of any of his explanations whether from friends, his sister or any other person. This does not mean that the Applicant's explanations are false. However, the amount of weight that can be given to the explanations is not enhanced by the lack of corroboration.
6. I observe that the educational qualifications obtained by the Applicant as shown by the Statement of Attainment in a certificate dated 28 May 2015 indicates that he has completed two modules dealing with legal and ethical requirements of property sales and of property management. I also observe that these courses were apparently completed at about the same time that the Applicant carried out the dishonest acts for which he was convicted later in 2015.
7. Notwithstanding the lack of direct application of the courses to the legal and ethical issues involved in both theft and obtaining property by deception I am not persuaded that the Applicant gave any meaningful consideration to either legal or ethical issues when committing the offences. These actions do not satisfy me that he is a fit and proper person to hold a Certificate.
8. The Applicant's antecedents, which are detailed at page 10 of the s 58 documents in the Facts Sheet prepared by the police and dated 20 May 2015 state "the Accused (the Applicant) "is currently unemployed and looking for work. The Accused has no dependents." This should be contrasted with the Applicant's statement of September 2015 to the Commissioner to the effect that he has at least three dependents in Peru.
9. In oral evidence the Applicant conceded that he stole the gym bag which contained the credit card he dishonestly used. This should be contrasted with the Facts Sheet at page 13 in the s 58 documents in which the Applicant informed the police, after a formal caution, that he denied any involvement in the theft of the property subsequently found in his bedroom and he claimed to have found the victim's wallet and credit card in Alexandria on a bench.
10. The undisputed evidence is that the Applicant used the stolen credit card for a pay wave purchase at a pharmacy for a relatively small amount and then used it at a Woolworths supermarket for three separate purchases of $95.09, $94.06 and $93.41. The police noted that this usage indicated that the Applicant was aware of the "pay wave" function $100 limit and that going over the $100 for an individual purchase would require a PIN or a signature to authorise the payment. Later that day the Applicant attended a restaurant and purchased items in the sum of $96.86. The CCTV evidence apparently showed that after each of the first two purchases at Woolworths the Applicant placed the items he had purchased nearby and returned to the Woolworths store to effect another purchase. I am not persuaded that this evidence did not indicate that the Applicant used the credit card for a small purchase at the pharmacy as a "trial run" to see if the credit card worked and then executed the four subsequent purchases as part of a deliberate course of action.
11. The Applicant provided a reference from a Deputy General Manager of a real estate agency named "Home 789". The reference is dated 11 August 2015 and states that the referee is aware of the Applicant's convictions for shoplifting and fraud and states that the Applicant "will be under the guidance and leadership of one of our sales managers who will monitor and guide him while working under Home 789". I have taken the reference into account.
12. However, in the circumstances and having regard to the authorities referred to above, I am not satisfied that the Applicant is a fit and proper person to hold a Certificate as a real estate salesperson as is required by s 14 (3) (b).

A disqualified person s 14 (3)(d), s 16 (1) (a) and (2)

1. Section 16 (1) (a) provides that a person is a disqualified person if that person has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years unless the Commissioner determines under subsection (2) that the offence should be ignored either because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.
2. The Applicant has been convicted of several offences involving dishonesty within the last 10 years, in 2013 and 2015. The 2013 conviction was not disclosed in his Application and the 2015 convictions were recorded in September 2015.
3. As a result of the convictions in 2013 and 2015 the Applicant is a disqualified person unless the Commissioner makes a determination under subsection 16 (2) that the offences should be ignored.
4. The Commissioner did not make such a determination. In these proceedings the Tribunal has power to make such a determination in the place of the Commissioner.

The amount of time that has passed since the last offence involving dishonesty was committed

1. It is undisputed that in comparison to the statutory period of 10 years, the amount of time that has passed since the Applicant's most recent offences is relatively short.
2. In Wilson's case, Mr Wilson applied for a certificate of registration as a real estate salesperson. His application was refused on the basis that he had been convicted of 4 shop lifting offences in 2003 and 2004 and in June and December 2012. Naida Isenberg SM held in 2014 at [19] that she was bound by the decision of the Appeal Panel in O'Connor's case in relation to an examination of the conduct of Mr Wilson at the time the offences were committed. Ultimately Mr Wilson was granted the certificate he applied for. However, his circumstances differed markedly from the circumstances of the Applicant and the references he provided in support of his application to the Tribunal were materially different to the reference from "Home 789". I will not repeat the facts outlined in Wilson's case, the Senior Member's consideration of them is set out at [10] to [18] and [22] to [23].
3. In Wilson's case reference was made to the decision of Montgomery JM in Bek v Commissioner for Fair Trading [2004] NSWADT 149 in which Mr Bek had been convicted of "Driver/Writer State. Name or Address" and was fined $300. Montgomery JM agreed that it was an offence at the lower end of the scale and held that given the nature of the offence 3 ½ years was sufficient to warrant ignoring the offence. Isenberg SM continued at [25]: In Bek JM Montgomery, after reviewing some authorities, held that the period of time sufficient to warrant an exercise of the discretion to ignore the offences must be linked to the offence for which an applicant has been convicted: at [37]. I consider the approach in Bek in linking the period of time sufficient to warrant an exercise of the discretion to the offence for which an applicant has been convicted, to be a sensible one. For example, 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.
4. In Wilson, the approach in Bek was adopted and a period of 18 months since the last shoplifting offence by Mr Wilson was held to be sufficient to warrant the exercise of the discretion to ignore the most recent offence.
5. In Gambino's case Dr Lucy SM found that a conviction for dishonesty had been recorded against the applicant in relation to directing payments into the wrong bank account over a period of some months. The offence which Mr Gambino acknowledged was premeditated, had occurred approximately 3 ½ years before the hearing. Dr Lucy was not satisfied that that was a sufficient period of time to warrant an exercise of the discretion in Mr Gambino's favour.
6. In Farah v Director General, Department of Finance and Services [2013] NSWADT 198, Montgomery JM said: Should the offence be ignored on the basis of a passage of time? 84 The Applicant committed these offences over four years ago. He was convicted in September 2011. However, the conduct occurred between July 2007 and May 2009. 85 Mr Griffin has referred me to a number of Tribunal decisions that have dealt with the issue of whether an offence should be ignored on the basis of a passage of time. 86 In Bek v Commissioner for Fair Trading [2004] NSWADT 149 I held the view that the period of time that is necessary to have passed must be linked to the offence for which an applicant has been convicted. Mr Bek was convicted of "Driver/Rider State False Name or Address" and was fined $300. I agreed that it was an offence at the lower end of the scale and that three and a half years was sufficient to warrant ignoring the offence. 87 In Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186, Judicial Member Higgins considered the offences of obtaining money by deception involving the amount of $6,957.08 as serious and that a period of 5 years since the offences were committed was not sufficient time so as to make a determination that the offences should be ignored. She considered that a period of 8 years from the date the offences were committed was the appropriate time given that the offences had occurred in the course of the licensed activity. 88 In Parvin v Commissioner· for Fair Trading [2005] NSWADT 34, Mr Parvin was convicted of traffic offences of dishonesty including producing someone else's licence to police when stopped in circumstances where he did not possess a licence. He received a sentence of home detention. O'Connor DCJ was of the opinion that 2 years was insufficient time to exercise the discretion under section 16(2) of the Act. 89 In Yelland v Commissioner for Fair Trading [2005] NSWADT 293 I was of the view that the 14 months that had passed since Mr Yelland gave false information to police in order to avoid the consequences of his action was not sufficient to warrant ignoring the offence. 90 In Eleter v Director-General, Department of Fair Trading [2002] NSWADT 138 Judicial Member Lees considered that the nearly four and a half years that had passed since Mr Eleter's offence of receiving stolen property was an insufficient period for the discretion to be exercised in Mr Eleter's favour. 91 In Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284, Judicial Member Handley considered the seriousness of the offence, the time which had elapsed since his conviction, and the fact that he was on a good behaviour bond. The Judicial Member considered that the 15 months since the conviction for two serious offences, of "assault actual bodily harm" was an insufficient period for the discretion to be exercised. 92 In Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218, Judicial Member Molony considered the period of less than two years which had lapsed since Mr Song was convicted of "Goods in personal custody suspected of being stolen" was insufficient. 93 In Hadroj v Director General, Department of Fair Trading [2002] NSWADT 95 Deputy President Hennessy considered the 12 months which had lapsed since Mr Hadroj was convicted of four offences: three counts of goods in custody winch may be reasonably suspected of being stolen or otherwise unlawfully obtained and one count of selling second-hand goods without holding a licence was insufficient to warrant ignoring the offence.
7. The above cases indicate that whether or not sufficient time has passed to ignore offences is dependent on the circumstances peculiar to each applicant and there is no one rule which fits all applicants.
8. It seems to me that the Applicant's overriding purpose in applying for the Certificate is to better his position in life and he prefers not to be employed in available but less well paying or satisfying jobs which do not require a statutory certificate. The most recent of the Applicant's offences involving dishonesty occurred in April 2015, less than 12 months before the date of the hearing and two months before the Applicant applied for the Certificate.
9. I observe that in the second reading speech, referred to at [52] above, consumer protection is said to be one of the underlying objects of the Act. In these circumstances I am not satisfied that the offences committed by the Applicant should be ignored because of the period that has passed since the offences were committed.

Triviality of the acts or omissions giving rise to the offences

1. Section 16 (2) refers to "the triviality of the acts or omissions giving rise to the offence". Neither the word "triviality" nor the word "trivial" are defined in the Act or the Interpretation Act 1987. Black's Law Dictionary, ninth edition describes the adjective "trivial" as "Trifling; inconsiderable; of small worth or importance." The Macquarie Dictionary, Revised Third Edition, refers to the noun "triviality" as "something trivial; a trivial matter, affair, remark et cetera" and refers to the adjective "trivial" as "1. Of little importance; trifling; insignificant. 2. Commonplace; ordinary."
2. The word "triviality" may relate to the amount of money involved in the offences the subject of the convictions. However, it may also relate to the substance of the offences and whether the relevant acts were carried out on the spur of the moment or involved planning.
3. In Song's case, Molony JM said: [2]…on 26 August 2004 Mr Song was convicted in the Local Court at Parramatta of "Goods in personal custody suspected of being stolen" contrary to s.527C(1)(a) of the Crimes Act 1900 and fined $550.00, with $63.00 court costs. He pleaded guilty to that charge. The "goods" in question was a credit card. [23] … Mr Song was not only found in possession of a fraudulent credit card in highly suspicious circumstances, but on his own evidence lied to the Police…
4. Mr Song's acts were held not to be trivial for the purpose of s 16(2).
5. In Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor [2007] NSWADTAP 37 at [34], the Appeal Panel of the former Administrative Decisions Tribunal said "the wording of s 16(2) - 'the triviality of the acts or omissions giving rise to the offence' - invites an examination of the conduct of the person at the time the offence was committed".
6. It may be that the 2013 shoplifting was carried out on the spur of the moment. However, I am not satisfied that the theft of the gym bag and the use on multiple occasions of the credit card as referred to above did not involve consideration and planning.
7. The use of the credit card at Woolworths to purchase goods to a value slightly less than $100, leaving those goods nearby and returning to Woolworths to use the card a second time and then a third time on the same day could not, in my opinion, have been carried out without consideration having been given by the Applicant to what he was doing at the time. Accordingly, having regard to my examination of the Applicant's conduct at the time several of the offences were committed, I am not persuaded that the relevant acts were trivial in the context of the exercise of the s 16 (2) discretion.

Decision

1. Section 19 states that an application must not be granted if the Applicant is ineligible to be granted a licence. Having regard to the above findings, the Applicant is ineligible to be granted a licence both because I am not satisfied that he is a fit and proper person to be a real estate salesperson and because he is a disqualified person.
2. It may well be that at some time in the future the Applicant will be both a fit and proper person and no longer a disqualified person. However, it is not yet that time.
3. The correct and preferable decision of the Tribunal is that the decision under review is affirmed.

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: 12 February 2016