Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair... [1999] VSC 255 | Case summary

REASONS FOR DECISION 1 From 1994 to 2006 the appellant, Mr Stojanovic, was a registered real estate agent. As from 1996 he was also a director of a corporate licensee, Randwick Realty. The firm operated at Randwick under the L J Hooker masthead. His co-director was a Mr Kallinicos. 2 Mr Stojanovic started out in real estate in 1979 when he was about 20 years of age. He worked first as a property manager, then as a real estate salesperson before becoming an agent. 3 He held his licence as an agent under the provisions of the Property, Stock and Business Agents Act 2002 (PSB Act). In 2005 the Commissioner issued a show cause notice in relation to conduct that had occurred between 1998 and 2001. The most serious disciplinary sanctions available to the Commissioner under the Act (see s 192(1)) are to: '(g) cancel the person's licence or certificate of registration, (h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period, (i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee.' 4 Mr Stojanovic's misconduct was of a serious kind. It was described by the Tribunal as follows: '3 Between 1998 and 2001, Mr Stojanovic and Mr Kallinicos [his partner in the real estate firm as from 1996] purchased a number of properties (in the name of a third party nominee) in which Randwick City Realty acted as an agent for the vendor, the Public Trustee. They then renovated the properties and sold them on at a profit. Neither the vendor of the properties nor the subsequent purchasers were made aware of Mr Stojanovic's and Mr Kallinicos' interest in the transactions. Mr Stojanovic and Mr Kallinicos ceased this practice when approached by a reporter for the television program 'Today Tonight' in 2001.' 5 Later in its decision the Tribunal referred to Mr Stojanovic's evidence: '25 Mr Stojanovic said he could not remember whether it was his idea or Mr Kallinicos' to purchase properties marketed by Randwick City Realty. The opportunity arose when the Public Trustee placed properties for sale through LJ Hooker Randwick. If Mr Stojanovic saw a property worth purchasing, he would tell Mr Kallinicos, who was able to arrange finance through Macquarie Bank. Mr Stojanovic would get a third party proxy to bid at auction for the property in his own name up to an agreed figure. If the bid was successful, Mr Stojanovic and Mr Kallinicos would develop the property and then on-sell it. They would pay their third party proxy $2,000 for doing his job. Mr Stojanovic and Mr Kallinicos would split the profits. 26 Mr Stojanovic said the profits for the sale of the properties projected by the OFT were misleading because these are gross profits and fail to take into account the costs involved - for example, the cost of the transactions including legal costs and advertising, the cost of finance and of extensive renovations.' 6 After considering Mr Stojanovic's response to the show cause notice, on 6 February 2006 the Commissioner's delegate decided to cancel his licence (with the decision taking effect 27 February 2006) for ten years, exercising power (g). The decision also stated that he was disqualified for ten years from being involved in the direction, management or conduct of the business of a licensee, and referred to both powers (h) and (i). So the effect of these orders was to bar him from the industry, at least so far as 'direction, management or conduct of the business of a licensee' is concerned. 7 Initially Mr Stojanovic applied to the Tribunal for review of these decisions, and was granted a stay that expired on 31 May 2006. Later he withdrew that application. Application for Certificate of Registration as Real Estate Salesperson 8 On 24 April 2007 Mr Stojanovic applied to the Commissioner for a certificate of registration as a real estate salesperson. Section 14(3) provides: '(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.' 9 On 3 July 2007 the Commissioner refused the application on the basis, first, that he was a disqualified person (power (d) above) and, secondly, on the basis that he was not a fit and proper person to hold a licence or certificate of registration under the PSB Act (power (b) above). 10 The Tribunal did not think that power (d) could be relied on in the circumstances of the case: see its reasons [13] to [22]. 11 Accordingly only the decision that he was not a fit and proper person fell to be considered. Tribunal Decision 12 The Tribunal agreed with the Commissioner's assessment in that regard, and affirmed the Commissioner's decision on that basis: Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 109 (15 April 2008). 13 In dismissing the application for review and affirming the Commissioner's decision, the Tribunal noted that the only practical statutory difference between the qualifications required to be a licensed real estate agent and the qualifications required to be a registered salesperson is that a real estate salesperson must be an employee of a real estate agent that carries on the business of a real estate agent. Section 3 provides: ' real estate salesperson means a person (other than the holder of a real estate agent's licence) who, as an employee of a real estate agent or a corporation that carries on the business of a real estate agent: (a) exercises any of the functions of a real estate agent, or (b) engages in any other activity that is prescribed by the regulations for the purposes of this definition. real estate agent means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of land or as an agent: (a) for a real estate transaction, or (b) for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or (c) for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or (d) collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or (e) for any other activity in connection with land that is prescribed by the regulations for the purposes of this definition. but does not include a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the regulations otherwise provide.' 14 The Tribunal referred in its reasons to Mr Stojanovic's explanation for his conduct, and his remorse. It said: '27 Mr Stojanovic said there was no excuse for his participation in the arrangement - the motivation was purely that of making money. He knew at the time that he was doing wrong. However, he did nothing to artificially suppress the price of the properties being offered at auction and, in his view, the properties sold at no lower price than they would have had he not been involved in the transaction. He took the view that as no-one was being hurt, it did not matter. 28 Mr Stojanovic said they stopped the arrangement when he was approached by a reporter from the television show 'Today Tonight', who had become aware of the practice. The matter went to air and he later received a 'Show Cause Notice' from the OFT in relation to the claims made by the reporter on the broadcast program. 29 Mr Stojanovic said the only work he has ever done has been in the real estate industry. Losing his licence was a devastating blow. At that time, he lacked insight into the seriousness of his behaviour and did not then pause to reflect on it. This was partly due to the devastating effect that cancellation of his licence had on his family, including the Bank selling their house, with their situation being that, essentially, they now have no assets. By the middle of 2007, Mr Stojanovic had had time to reflect on his conduct, and accepted that "I had behaved extremely badly". He agreed to provide additional information to the OFT, and gave a taped interview to an OFT investigator over the course of two days.' 15 Mr Stojanovic presented to the Tribunal a statement from a licensed agent who was prepared to employ him as a salesperson - Mr Frank Capra, of Park Coast Realty which trades as Ray White at Bondi Junction and Clovelly. Before the Tribunal, Mr Stojanovic gave evidence and was cross-examined. The statement from Mr Capra was tendered without objection. 16 In the statement Mr Capra referred to the size of his business, and the number of employees. He indicated that he was aware of the circumstances that had led to disciplinary action against Mr Stojanovic. He said the procedures at Park Coast Realty made it impossible to try to purchase through a proxy. He referred to the book keeping arrangements and how trust monies were handled. He referred to procedures he uses in the agency to avoid undervaluing by an agent or salesperson. He also undertook to advise the Tribunal if Mr Stojanovic ceased employment with Park Coast Realty or if any matter came to his attention in relation to Mr Stojanovic's conduct that caused him concern. Appeal 17 Mr Stojanovic now appeals. An appeal may be made on a question of law, and by leave extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. There is no cross-appeal from the Commissioner challenging that part of the decision that went against the Commissioner. 18 In support of his application to extend the appeal to the merits, Mr Stojanovic noted that if granted a certificate, he was prepared to submit to conditions, and referred to the support given by Mr Capra. 19 The Commissioner, in reply, submits that there were no errors of law in the Tribunal's reasons, and that there is no reasonable basis to grant leave to extend the appeal to the merits. Assessment 20 Real estate agents and real estate salespersons do much of their work alone and with a high degree of autonomy. They are dealing with a complex market environment, and routinely dealing with assets of great monetary value. Clearly the conduct in which Mr Stojanovic engaged involved a serious transgression of the duty of fidelity owed by an agent to a principal (see further Blackham v Haythorpe (1917) 23 CLR 156). He participated in a scheme that involved a serious conflict of interest and deception. He was a very experienced member of the industry when the conduct occurred. It involved a gross breach of trust both to his principal (and the beneficiaries of the estates whose affairs the Public Trustee was administering) and for those who had an interest in buying the properties. The conduct was systematic and calculated. He made money from the misconduct. The conduct undermined public confidence in the fairness of the auction system and the integrity of agents. 21 Disciplinary orders are protective not punitive: 'When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of the privilege may not lead to loss of privilege': Clyne v Bar Association of New South Wales (1960) 104 CLR 186 at 201. 22 In this case what is being sought, in effect, is the opportunity to re-enter the real estate industry - albeit at a level one place lower than a real estate agent, well short of the period the Commissioner had in mind when making the original order. 23 The leading authorities emphasise that in taking disciplinary action on the ground of lack of fitness, the issue is always the 'present' fitness of the person. The Tribunal referred in its reasons to a Court of Appeal statement to that effect made in 1994. It said: 'In McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994: see, in particular, the judgments of Kirby P, at paragraph 21 to paragraph 26, and Powell JA, at paragraph 59 to paragraph 73), the Court said where there is evidence of misconduct, there should be consideration of any explanation for that misconduct, its seriousness to the particular activity, the motivation of the person, whether the misconduct is an isolated incident, the person's underlying qualities of character, and the person's conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform.' 24 The Tribunal summarised its thinking at para [47] of its reasons: '47 I am not satisfied from the evidence that Mr Stojanovic has yet undergone sufficient rehabilitation to establish that he is a fit and proper person to hold a certificate of registration as a real estate salesperson. By his own admission, it was only about 18 months ago that he recognised the seriousness of his misconduct, notwithstanding that the misconduct ceased in 2001. This is not to say that he will not in the future be able to return to work as a real estate salesperson and perhaps, eventually, as an agent, but at present it is too soon and, in my view, Mr Stojanovic needs to provide other character evidence to support his contention of contrition and rehabilitation. The dishonest conduct in which he was involved for a period of about three years and against which members of the public need to be protected, is of a kind to undermine public confidence in the real estate profession. At this time, only two years after the cancellation of his licence and in circumstances where he did not recognise the seriousness of that misconduct until about 18 months ago, I am not satisfied that members of the public knowing of Mr Stojanovic's misconduct would have confidence in him as a real estate salesperson.' 25 Mr Stojanovic's proposition is that while he may be unfit to be an agent, that does not necessarily mean he is unfit to practise under supervision as a salesperson. 26 The authorities all recognise that the standard of fitness expected of a person applying for a licence takes its colour from the nature of the activity that the licence permits, the level of responsibility and training it requires, and the significance of the activity for the community as a whole. As will be seen from the definitions cited above, a real estate salesperson is entitled to exercise 'all of the functions' of a real estate agent, with the exception that the salesperson must be employed by an agent. So the critical difference is that the salesperson answers to an employer, and is subject to the direction and supervision of the agent. We return to this subject later in these reasons. Omission 27 One area of Mr Stojanovic's circumstances was not considered by the Tribunal - his conduct since the misconduct occurred. The Commissioner made what we see as an inaccurate submission in this regard. As summarised by the Tribunal, counsel for the Commissioner at hearing (Mr Grinbergs) said: '37 … Mr Stojanovic has not shown any significant period of trading responsibly nor any significant contrition or rehabilitation in respect of the misconduct.' 28 The Tribunal endorsed that part of the above submission as it related to significant contrition or rehabilitation (see reasons [46], [47]), but it did not observe that approximately four years had passed since the conduct came to public notice which, on any view, is a 'significant' period, and may be seen as relevant also to rehabilitation. 29 The Commissioner did not take any disciplinary action against Randwick Realty, Mr Stojanovic or Mr Kallinicos in the short term. The Commissioner appears not to have been so concerned at the alleged misconduct as to see any need to move quickly. The Appeal Panel sought an explanation as to this lag in taking disciplinary action. 30 Mr Coss, legal officer, informed the Appeal Panel that the Commissioner delayed action because the Independent Commission Against Corruption had decided to open an investigation into the conduct of the Public Trustee's Office as it concerned the sale of properties belonging to deceased estates, and the inquiry was to cover the present case. 31 That delay resulted in agents accused of misconduct of a most serious kind being allowed to continue to deal with the public for several more years. Mr Stojanovic continued to practise for another four years on a full-time basis, and without any further complaint. 32 The importance of a significant period of non-offending conduct is highlighted in another Court of Appeal decision later in 1994, also unreported: Burton v Anderson (Kirby P, Priestley, Handley JJA), 28 October 1994. There a veterinary surgeon had continued to practise in the period between a Disciplinary Tribunal determination ordering his deregistration for professional misconduct and the appeal coming on for hearing in the Court of Appeal. For reasons explained in the decision, the period lasted three years. The Court agreed that the Tribunal's determination when it was made was the correct one. But once consideration was given to his professional conduct in the intervening period, the Court held that it could not be satisfied, applying the present fitness standard, that he remained unfit to practise. The Court, therefore, varied the disciplinary order, and made an order permitting him to practise, subject to conditions. 33 We agree with the submissions of the Commissioner that it is not every consideration that possibly might be seen as relevant that needs to be itemised by a Tribunal in reviewing determinations of the present type. There is no need to make an 'exhaustive list': see Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 375 per Deane J. Nonetheless, Mr Stojanovic should, in our view, have been given some credit for this period of non-infringing conduct. The Tribunal did not reject, and in fairness to Mr Stojanovic's case should have rejected, the error in the submission that he had not had 'any significant period of trading responsibly'. The Commissioner's submission to the Tribunal on this point was unsatisfactory. 34 We see this as a case where we should give leave to extend to the merits because of the omission to consider this factor. The Merits 35 Mr Rogers, for Mr Stojanovic, submitted that the Tribunal's references to a period of rehabilitation and public confidence, distracted the Tribunal from the key question - 'present fitness'. He submitted that Mr Stojanovic's acknowledgement of his misconduct was important. 36 As the Tribunal noted, after initially responding to the notice to show cause issued in September 2005 by denying any misconduct, he acknowledged his misconduct, and was co-operative in records of interview with the Commissioner's Office. He gave full details of the scheme. 37 While the misconduct involved a serious failure of honesty and integrity, Mr Rogers noted that Mr Stojanovic's misconduct belonged to one period in Mr Stojanovic's time in the industry. He had been in the industry for 19 years before it happened, and for four years after it ended, without complaint. He submitted that there was no likelihood of similar conduct recurring. Mr Stojanovic, he said, had learnt his lesson, and now understood the error in his view that the conduct lacked seriousness. 38 Mr Rogers also submitted that the Tribunal had not adjusted the standard of fitness and propriety expected of a salesperson as against the standard expected of an agent. It is the case that the standard of fitness and propriety expected of a licensed person is affected by the degree of responsibility that attaches to the regulated occupation or profession, and the significance of the office for the community at large. 39 Subject only to the requirement that a salesperson be employed by an agent, Ms Henderson submitted that the work done by an agent and a salesperson was, otherwise, very much the same, and both must be seen to observe and maintain high standards of honesty and integrity. 40 Ms Henderson submitted that Mr Stojanovic had only stopped engaging in the (systematic) misconduct when he had been found out. She also said that it was unlikely that he would have reoffended in any way once his conduct was caught up in the spotlight of an ICAC inquiry. She also referred to his outright denial of misconduct when confronted with the show cause notice. 41 Mr Stojanovic's position for some time was that no one was in fact harmed, and that was material to the assessment of his culpability. His belief, it seems, was that fair prices were obtained at auction. Even if fair prices as seen by the market were obtained, Mr Stojanovic's belief is one that shows a serious failure to understand the nature of the ethical and legal duties owed by an agent to the principal. As we read its reasons, the Tribunal saw this aspect of Mr Stojanovic's case as decisive. To reiterate, it said at [47]: 'At this time, only two years after the cancellation of his licence and in circumstances where he did not recognise the seriousness of that misconduct until about 18 months ago, I am not satisfied that members of the public knowing of Mr Stojanovic's misconduct would have confidence in him as a real estate salesperson.' 42 We agree with Ms Henderson's submission as to the central importance of honesty and integrity in any decision to relicense a person at either the level of real estate salesperson or real estate agent. The Tribunal was, as we read its reasons, satisfied that the prior decision of the Commissioner was at the time it was taken (February 2006) the correct one, and that it was too soon to allow Mr Stojanovic back into the industry. 43 In effect Mr Stojanovic is seeking readmission to the real estate industry to practise as a licensed employee. There are many statements in cases dealing with applications by a struck off practitioner for readmission to the legal profession as to the principles that should be applied in considering such an application. 44 With appropriate adjustments to take account of the nature of the responsibilities of licensed real estate agents and real estate salespersons, similar principles should, we think, be applied to the present case. See for example, Kotowitz v The Law Society of New South Wales (Court of Appeal, 2 August 1987, unreported) per Kirby P, cited with approval by McClellan CJ in CL in Meredith v Legal Profession Admission Board of NSW [2008] NSWSC 1170 (6 November 2008) at [17]; and Re Harrison [2002] SASC 335 (Full Court), per Doyle CJ at [60] ff. 45 Both Kirby P and Doyle CJ referred to the following statement of Latham CJ, Dixon and Williams JJ in Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422: 'When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the Roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. ...'. 46 We will not repeat here all the principles listed by Kirby P. The critical ones, in our view, are principles (4) to (7) in his Honour's list (citations omitted): '4. … [There is] the inevitable burden which a person, having been removed for misconduct, must face in displacing the formal finding of unfitness which is inherent in the earlier removal. … 5. The decision to be made in each case depends, ultimately, on the facts proved. There is no simple formula which can be applied by reference to the seriousness of the offences and the passing of time. There is no sure path to restoration to the Roll, guaranteed by engaging in particular activities, whether of employment or of service to the community. 6. The issue in each case ultimately, is whether the court hearing the application can conclude, on the basis of all the evidence, that the claimant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities that are involved in the work of the legal profession. It has been said many times that what is at stake is not so much the reputation of the claimant but the Court's assessment of his character, uprightness, honour and trustworthiness. … 7. Nonetheless, relevant to the decision to be made is any evidence concerning the reputation which the claimant holds, the employment which he has pursued, any community activities he has engaged in, the time which has passed within which to assess the question posed for the Court and, if the time be long, whether the claimant would be sufficiently knowledgeable to re-join a learned profession without re-training. As these questions are asked in the context of the exercise of a jurisdiction for the protection of the public, it is plainly important to have regard to any dealings which the claimant has had, since removal, with the public, in so far as these may demonstrate such a change as converts the claimant from an unfit person to a person fit to be restored to the Roll.' 47 In a Victorian case, Aavelaid v State of Victoria [1999] VSC 255 (26 July 1999), Coldrey J put the questions to be considered in assessing whether a person had redeemed their character, in this instance an application by a former dentist for readmission: '71. In [ In re Davis [1947] HCA 53; (1947) 75 CLR 409] Dixon J. (p.420) referred to the expression "good fame and character" as describing the test for ethical fitness for the profession. Although in that case it was the legal profession the expression clearly encompasses the medical and dental professions. 72. In Good v. The Medical Board of Western Australia (judgment of Supreme Court of Western Australia delivered 6 December 1994), Anderson, J. (at p.17) spoke of: "... a continuing moral irresponsibility, an absence of a real insight and understanding of right and wrong in the context of ethical fitness." 73. On the question of reformation there have also been various pronouncements. In [Ex parte Tziniolis; Re The Medical Practitioners' Act (1966) 67 SR (NSW) 448] Walsh JA stated (p.461): "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man." 74. Again in Good v. The Medical Board of Western Australia (ibid) Anderson J. put it this way (p.17): "Courts have said often enough that genuine remorse and contrition, true insight and understanding of earlier turpitudes [are prerequisites] to the regaining of good character." 75. In summary, each case will necessarily turn on its own facts. The nature of the initial misconduct, the subsequent attitude of the person disqualified towards it, that person's behaviour during the period of disqualification, and the passage of time itself, are all factors which will be relevant in determining whether a person has demonstrated that they are currently of good character.' 48 This case is, perhaps, more analogous to another class of readmission application with which the legal profession discipline jurisdiction often deals - applications by persons who have been struck off as legal practitioners to return to a law office in the capacity of an employed clerk. It is necessary for the practitioner willing to employ the person to apply for a declaration allowing that to occur. A recent instance involved an application to re-employ a Mr Barwick, who had been struck off for a serious failure of honesty and integrity in dealing with a deceased estate. The Tribunal allowed him to be re-employed as a clerk five years later, and made the following observations (Miedzinski v Council of the Law Society of NSW [2007] NSWADT 268 per Karpin ADCJ, Deputy President): '44 Mr. Barwick is now 69 years old. It is clear that in the years since 2002, he has employed himself in what might fairly be designated legally related areas. He has the capacity to contribute to the applicant's legal practice. 45 Protection of the public is paramount in such an application. It is also essential to take into account the necessity to maintain the integrity and standing of the profession. Although Mr. Barwick does not seek reinstatement to the roll, it is proposed that he be employed in the legal profession. Accordingly, the Tribunal must be satisfied that neither the public interest nor the integrity of the profession will be damaged by granting him the right to assume a recognised position in the legal profession, albeit at the lower end of the scale. 46 The terms upon which the Tribunal may exercise its discretion are broad. The Tribunal has determined that it should exercise that discretion in favour of Mr. Barwick's employment by the applicant upon appropriately stringent conditions. In particular, having regard to the long association between the applicant and Mr. Barwick; the fact that for the greater portion of that time she was employed in practices in which he was a principal; taking into account his maturity and long experience in the law, the Tribunal is concerned to ensure terms that reflect and support their changed professional relationship. 47 Upon the material available to the Tribunal at this time, the Tribunal is satisfied that Mr. Barwick is a fit and proper person to be employed in the legal profession in the limited manner sought in this application. 48 The Tribunal emphasises that the decision grants a limited right to Mr. Barwick to be employed in the profession. The orders fashioned by the Tribunal are designed to ensure that he neither has the right to undertake employment falling outside the limited permissible parameters, nor that he is put in a position of appearing to have a professional standing beyond that which has been permitted him pursuant to the orders of this Tribunal. 49 The Tribunal's orders include a prohibition on Mr. Barwick having a business card identifying him with the applicant's practice. Permission may be sought from the Law Society for Mr. Barwick to be provided with a business card. In the view of the Tribunal, consent should only be given if the applicant can demonstrate substantial benefit to the practice that outweighs any concern that he will thereby be able to assume an appearance of professional standing beyond that which has been granted to him. 50 Whilst the applicant has succeeded on this application, the Tribunal is of the view that the original decision arrived at by the Law Society was reasonable having regard to the material that was placed before the Society. The effluxion of time, and the additional material available to the Tribunal, particularly the fact that the Tribunal was in a position to make an assessment of Mr. Barwick, has resulted in a different determination. It is not, however, a case in which the respondent should be required to pay the applicant's costs.' 49 There is a public interest in encouraging reform and rehabilitation, and in giving persons who have reformed a second chance. There is a public interest in seeing special skills utilised. See, for example, Hegney v Law Society of New South Wales [2008] NSWADT 150, another law clerk employment case where the struck off solicitor was readmitted to employment in the legal profession after only two years. As Nathan J put the point in Edelsten v Medical Practitioners Board of Victoria [2000] VSC 565 at [2]: 'No person is beyond redemption. To hold otherwise would be the ultimate counsel of despair.' Conclusions 50 It will be seen that the Tribunal in this case had concerns over, one, the level of insight Mr Stojanovic displayed, at least for some years, as to the inappropriateness of his conduct and, two, the relatively small length of the period that had passed since his exclusion from the industry had taken effect. The Tribunal saw it as 'too soon' to allow Mr Stojanovic back. 51 The Commissioner's delegate in his 2006 reasons for decision expressed concern over the lack of an apology or a statement of regret from Mr Stojanovic. That position has now changed. Mr Stojanovic now acknowledges his error and has expressed regret. In our view greater weight should have been given from the outset to Mr Stojanovic's early plea in the show cause process. Early pleas are a positive indicator of remorse and contrition. As already noted, we think that greater weight should have been given to the years he remained in the industry without complaint after the misconduct came to notice. 52 Honesty in financial dealings is a core expectation of real estate agents and real estate salespersons. Mr Stojanovic failed badly in that regard. Mr Stojanovic has now been excluded from the industry for almost three years. The Commissioner's judgement was that he should not return to the industry as an agent for ten years. Mr Stojanovic has accepted that decision. 53 That stands to his credit. It does not follow, we think, that he should be debarred for such a long period from returning as a real estate salesperson. He has now spent two and half a years away from the industry. 54 In our view the material is sufficient to conclude that Mr Stojanovic could again be regarded as a fit and proper person for the purpose of practising at the level of a salesperson. While we accept that much of the work that is done by an agent and a salesperson is the same, the fact that a salesperson is subject to the direction and supervision of an employer is a significant difference. 55 The imposition of conditions is a familiar aspect of decisions to allow a person to re-enter a regulated occupation or profession, as many cases to do with the discipline of the legal profession and medical profession demonstrate. Mr Capra's statement was not tested by the Commissioner at hearing before the Tribunal. It showed a good understanding of why the practice that Mr Stojanovic engaged in was wrong, and contained promises of care in the oversight of Mr Stojanovic. 56 The readmission of Mr Stojanovic to the industry should only be under strict conditions. We do not propose therefore in this decision to give Mr Stojanovic a right of immediate return. In our view an opportunity should first be given to the Commissioner to fix conditions. 57 Before the Tribunal Mr Stojanovic proposed the following conditions: (i) that the applicant must notify the Commissioner within 3 business days of: (a) any cessation of his employment (b) any other change to his employment (ii) that the applicant shall not be a signatory to, or otherwise have access to any accounts in which the money of clients of his employer is deposited (iii) that the applicant not have access in any other way to moneys of the clients of his employer held by the employer. 58 As they are expressed there is no direct reference to Mr Capra, though we understand that to have been intended. We think it important that Mr Stojanovic work in a practice of some scale with a number of other employees around him. Mr Capra's proposal is satisfactory in that regard. 59 There may be other matters to which the Commissioner would wish to give attention. For example, there is no reference to any reporting that the employer and/or Mr Stojanovic might be obliged to engage in, say on a half yearly or quarterly basis for a period of two or three years. We think there may be a better way of expressing any restrictions as to the handling of client funds than is done by proposed conditions (ii) and (iii). 60 The orders which follow derive from the powers given to the Appeal Panel by the ADT Act, s 116 and to the Tribunal generally by s 63(3)(d). 61 These orders finally dispose of the application before the Tribunal. If the process of reconsideration in connection with conditions fails to resolve the matter, then there will in effect be a fresh refusal, and that refusal would require a new application for internal review to be lodged. If the matter is not resolved at that stage (or there is a dispensation from that requirement), there would need to be a fresh review application to the Tribunal. We have allowed three months for the completion of this process, taking account of the time of year. Order

Appeal allowed.
Decision under appeal set aside.
Reviewable decision set aside.
Commissioner to grant the appellant a certificate of registration as a salesperson subject to conditions to be settled as provided below.
Pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997 the matter is remitted to the Commissioner for reconsideration for that purpose. The Appeal Panel recommends that the conditions take account of the conditions proposed by the appellant, and the observations made by the Appeal Panel at paras [57] - [59] of these reasons. Appeal Panel recommends that this process be completed not later than 31 March 2009, with a view to Mr Stojanovic's certificate of registration commencing not later than 1 April 2009.

Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading

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Judgment (11 paragraphs)

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Cases Cited (10)