Teague v Commissioner for Fair Trading

Relevant Legislation

1. The PSA Act establishes a regime for the licensing, regulation and discipline of persons carrying on business in the real estate industry under a licence or certificate of registration.
2. Section 10 of the PSA Act provides as follows: 10 Assistant agents require certificate of registration (1) A person must not do any of the following things unless the person is the holder of a certificate of registration - (a) be or remain as an assistant agent in the employment of a person licensed (or required to be licensed) under this Act, (b) represent, whether expressly or impliedly, that the person is an assistant agent, (c) act as or exercise any of the functions of an assistant agent. Maximum penalty - 100 penalty units. (2) An employed licensee is not required to hold both a certificate of registration and a licence to allow the licensee lawfully to do anything that, in the absence of this section, the licensee could lawfully do as the holder of the licence. (3) An assistant agent who holds a certificate of registration may be known as a registered agent.
3. Section 14(3) of the PSA Act provides that: (3) A person is eligible to hold a certificate of registration only if the Secretary 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.
4. Pursuant to s 19 of the PSA Act, an application may not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (as provided by s 14).

The evidence

1. The matter was heard on 8 February 2024. The Respondent did not call any oral evidence and relied on the s 58 documents (exhibit R1), the Applicant's criminal history (exhibit R2) and material obtained from Manly Local Court in relation to the Applicant (exhibit R3).
2. The Applicant relied on a document "Submissions for the Applicant" dated 9 January 2024 that contained both evidence from the Applicant and submissions (exhibit A1) (January document). The Applicant also relied on character references from: Ms Pamela Robertson-Gregg dated 30 December 2023 (exhibit A2); Mr Case Holmes dated 3 January 2024 (exhibit A3); Ms Margrit Dutton dated 19 December 2022 (exhibit A4); Ms Tyler-Marie Leach dated 20 December 2022 (exhibit A5); Ms Leach dated 1 March 2023 (exhibit A6); and Ms Claire Wood dated 30 December 2023 (exhibit A7). In addition, there was a screenshot from Simonne (exhibit A8); a Criminal History Check Certificate dated 12 October 2023 (exhibit A9); an email and letter from Peter Skidmore, Solicitor (exhibit A10); a letter from Graziela Bueno of Sydney Drug Education and Counselling Centre dated 5 January 2024 confirming the Applicant had attended four counselling sessions at that Centre from 9 June 2022 to 20 July 2022 (exhibit A11); a document headed "Submissions for the Applicant" dated 6 February 2024 that included both evidence from the Applicant and submissions (exhibit A12) (February document); and a Nationally Coordinated Criminal History Check Certificate for the Applicant dated 16 December 2022 (exhibit A3).
3. The Applicant provided updated letters from Ms Dutton dated 3 February 2024; Ms Robertson-Gregg, Mr Holmes and Ms Lynch dated 5 February 2024; (exhibit A14) confirming that each of them was aware of the Applicant's offences as set out in the Statement of Reasons for the internal review decision and continued to stand by their previous references.
4. The Applicant gave oral evidence and was cross-examined by Ms Robosa, the solicitor appearing on behalf of the Respondent.

Submissions

1. The Applicant relied on his January and February documents. The Respondent relied on written submissions filed on 24 January 2024. Both parties made oral submissions at the hearing.
2. Due consideration was given by the Tribunal to the evidence and submissions portions contained in both the January document and the February document.

Role of the Tribunal

1. Section 27(a) of the PSA Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). 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 then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In 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) 235 CLR 286; [2008] HCA 31.

Issues

1. The Respondent did not take issue with the Applicant's qualifications and it was not contended that the Applicant did not satisfy the provisions set out in ss 14(3)(a), 14(3)(c) and 14(3)(d) of the PSA Act, and I accept that he does. It was also not in dispute that the Applicant had a criminal history. Accordingly, the sole issue to be determined in this matter is whether the Tribunal can be satisfied that the Applicant is a fit and proper person to hold a certificate of registration. The Respondent's primary position is that as a consequence of the Applicant's criminal history, he is not a fit and proper person to hold a certificate of registration as an assistant agent, and relies on the following submissions in support of that contention: 1. The Applicant demonstrated a lack of candour. Whilst he disclosed his convictions in the Application, he nonetheless withheld the complete facts which led to the offences. 2. The Applicant has minimised the circumstances of his offending and there is no basis for the Tribunal to conclude that the Applicant has demonstrated any insight into the seriousness of the offences. 3. In his January document, the Applicant stated that following his convictions in 2021, he "participated in four alcohol counselling sessions at the Sydney Drug and Education Counselling Centre" through his own initiative. However, it was submitted that the evidence is that these counselling sessions occurred between 9 June 2022 and 20 July 2022. 4. The Applicant neither addressed his drinking problem nor attended alcohol counselling after the 2021 convictions and only attended counselling following being charged with further offences involving drinking and a "scuffle" in 2022. 5. Insufficient time has passed to demonstrate the Applicant's reformation of character. 6. The character references relied upon by the Applicant should be afforded little or no weight, largely because none of the referees refer to the Applicant's offending, convictions or sentencing.

Fit and Proper Person

1. The meaning of the term "fit and proper person" has been considered by this Tribunal and other courts and tribunals on many occasions.
2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ 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.
3. A person's fitness and propriety is 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].
4. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ said: The expression "a fit and proper person", 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 upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to 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 an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question.
5. They went on to say at 388: The question whether a person is fit and proper is one of value judgement. 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.
6. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said in respect of the term "fit and proper": 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 evolving 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.
7. In McEvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183 in the Land and Environment Court, Lloyd J refused a person's registration as a valuer on the basis that he was not a fit and proper person. Lloyd J referred to the decision in Re Davis (1974) 75 CLR 409 and reproduced the following statements of Latham CJ at [23]: But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man a good character.
8. Lloyd J went on to say at [35] - [36]: 35. 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 ). The seriousness of the offence in this case is illustrated by the fact that it is both an indictable offence and one which carries the maximum penalty of ten years imprisonment (section 156 Crimes Act 1900). 36…The obligation of complete candour and disclosure is an important element of good character. Its absence does not give one confidence that in the course of his work as a registered valuer the applicant will not overlook in his valuation reports all relevant facts or opinions which may bear upon the question of value. Its absence suggests that the accuracy and reliability of the applicant's work would have to be checked.
9. In Harries v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 203, when dealing with an individual full licence under the Property, Stock and Business Agents Act 2002 (NSW), Judicial Member Montgomery said at [54] that he agreed with the Commissioner's view in that matter that the legislation differentiates between certificate holders and licensees. In his view, the differentiation warranted the application of a more vigorous approach to the assessment of a licence application in comparison to the renewal of a Certificate of Registration.
10. The Tribunal has considered the assessment of criminality in relation to fitness and propriety in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57. That was a case considering the fitness and propriety of a person to hold a trade person's certificate under the Motor Vehicle Repairs Act 1980 (NSW) Judicial Member Molony said at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. 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. In the case of Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 Senior Member Montgomery said at [82]: "… the Tribunal is required to take into account the nature and seriousness of the original conduct, 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 conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time and the Applicant's present circumstances and reputation…"
12. Evidence of a conviction for a criminal offence is prima facie evidence of bad repute: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 402 [31]. However, it is not determinative evidence, and the factual issue is to be determined in all the circumstances of the case: Saadieh v Director General, Department of Transport [1999] NSWADT 68 (Saadieh) at [14]-[15]. When assessing the Applicant's fitness to be authorised to drive a taxi, the Tribunal in Saadieh commented at [17] to [18] as follows: 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: • the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; • the nature, seriousness and frequency of any complaints made against the applicant; • the applicant's driving record; • the applicant's reputation in the community; and • the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.

Applicant's criminal history

1. The Applicant's criminal history was not in dispute between the parties.
2. The Applicant's criminal history indicates that he was dealt with by the Surry Hills Children's Court in relation to his conduct as a juvenile, including that on 27 September 2019, just after turning 17, the Applicant was charged with "robbery armed with offensive weapon -SI" and possess prohibited drug for which on 27 May 2020 in the Surry Hills Children's Court he was placed on probation from 27 May 2020 to 26 May 2021. He was also fined $250 for destroy or damage property (2019 Offences). No further documentary evidence was adduced in relation to the 2019 Offences.
3. On 9 July 2020, just prior to turning 18, the Applicant was charged with possess prohibited drug and having custody of a knife in a public place. He appeared before the Surry Hills Children's Court on 21 October 2020 and was fined a total of $600 in relation to both matters (2020 Offences). He was called up on the earlier matters for which he was given probation, but no action was taken on the breach.
4. In his January document, the Applicant stated in relation to the 2019 Offences that he had started to mix with the wrong people and made poor choices of friends. He said that he started to experiment with marijuana and got caught with it in his possession at school. In relation to the 2020 Offences, he said that he visited a local park to smoke a marijuana cigarette and had taken a small knife from his parent's kitchen to chop and combine the marijuana and tobacco. After rolling and smoking the cigarette, he stated that he was stopped and searched by police who found a small amount of the remaining marijuana in a plastic bag in his pocket together with the knife.
5. A number of the character referees (exhibit A14) acknowledged being aware of the Applicant's criminal history including a number of his juvenile matters and indicated that they continued to stand by their earlier references.
6. I have had regard to the Applicant's conduct in relation to the 2019 Offences and 2020 Offences. I note that the Applicant was a juvenile at the time of the conduct and that a significant amount of time has now elapsed since that conduct occurred. In all of the circumstances, I give this conduct extremely limited weight and note that the Respondent's delegate also gave limited weight to these matters in the internal review decision.

2021 Offences

1. On 1 May 2021, when the Applicant was 18 years of age, he was charged with a number of criminal offences. The NSW Police Facts Sheet (Facts Sheet) was relied upon by the Respondent (part exhibit R2). In brief, the Facts Sheet indicates that the Applicant was at the Steyne Hotel in Manly (hotel) at approximately 11.15 pm on 30 April 2021 and was observed by a Duty Manager at the hotel, who formed the view that the Applicant was intoxicated and was to be removed from the hotel. In the course of being removed, the Applicant assaulted both the Duty Manager and a Bartender. A police officer was parked directly outside the hotel exit and walked up to the Applicant, who was at that time accompanied by a security guard. The officer took hold of the Applicant's right arm and placed him under arrest for assault. The Applicant immediately pulled free of the hold of police and was placed on the ground and handcuffed, before being taken to Manly Police Station. Due to his level of intoxication and behaviour, he was not offered an interview and was charged.
2. On 3 November 2021, the Applicant was dealt with by the Manly Local Court in relation to the following offences arising from the incident at the hotel (2021 Offences): 1. "Excluded Person fail to leave premises when required" for which he was convicted and fined $500. 2. Common assault of the Bartender for which he was convicted and placed on a Community Correction Order for a period of 12 months from 3 November 2021 and concluding on 2 November 2022. 3. Common assault of the Duty Manager for which he was convicted and fined $400. 4. Resist or hinder Police Officer in the execution of duty for which he was convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no other penalty imposed.

2022 matters

1. On 3 June 2022, when the Applicant was 19 years of age, he was charged with an offence of assault occasioning actual bodily harm and common assault (2022 matters). These matters did not appear on the Applicant's criminal history as of 19 January 2024 (part exhibit R2) and the Applicant's evidence was that these matters were dismissed on the basis of a not guilty finding when the matters came before the Downing Centre Local Court on 1 August 2023. The uncontested evidence was that the prosecution were not in a position to present the case on that day and that the Applicant was subsequently awarded costs by the presiding magistrate for the preparation and presentation of his case.

Nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted.

1. The Applicant was 20 years of age at the time that he lodged his Application and was 21 years of age at the time of the hearing of this matter. Whilst the Applicant appeared on his own behalf, his father attended the Tribunal with him and sat next to him throughout the hearing. Ms Robosa did not object to him doing so.
2. It is not in dispute that the Applicant was convicted in relation to the 2021 Offences as set out above, and that these matters occurred whilst the Applicant was intoxicated. I am satisfied that the 2021 Offences are objectively serious. The Applicant was charged with two further offences of common assault and assault occasioning actual bodily harm on 3 June 2022. In his January document, the Applicant provided further information in relation to the 2022 matters. He stated that he was at the Ivy Nightclub in the city with a few friends and that he had consumed one to two drinks and was not intoxicated or drunk, and referred to the "prohibitively expensive" price of alcohol at the venue. He said that an unknown person knocked and broke his friend's expensive sunglasses and the unknown person turned to him and started to shove him. He said that the scuffle lasted less than a minute and he and the other person were both questioned. The Applicant stated that he told police about the scuffle and that he had thrown some punches in self-defence, and he was later charged.
3. Whilst I accept the documentary material and evidence from the Applicant that he was found not guilty, and the charges dismissed by the Magistrate on 1 August 2023, the Tribunal can still have regard to the Applicant's conduct in relation to the 2022 matters: Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30]. However, I accept the Applicant's evidence that he was not intoxicated or drunk at the time of the 2022 matters and was acting in self-defence. I also accept the Applicant's acknowledgment in in the January document that whilst he did not start the scuffle, he regrets what happened and also regretted not making the decision to walk away from the situation at that time or to seek assistance.

Candour of the Applicant

1. It is clear that in his Application, the Applicant answered "Yes" to the question "Have you been convicted in NSW or elsewhere of any criminal offence that was recorded in the last 10 years or do you have any pending charges?" When asked to list all criminal offences within the last 10 years and the decision of the Court (including all finalised and pending matters), the Applicant indicated (sic) "Common Assault Common Assault Assault Occasioning actual bodily harm". The Applicant was then asked to provide a detailed explanation of the circumstances which led to the criminal offence or charge and responded (sic) in his Application, "I was in the middle of a fight Second case is still pending, not guilty".
2. It is clear that the Applicant's response to these questions was not detailed or complete. I accept however that the Applicant provided a copy of his National Police Check as an attachment to his Application indicating his convictions and pending charges. In his January document, the Applicant apologised for not fully explaining the circumstances surrounding the prior offences. He stated that he was nervous and overwhelmed at the time of his initial application. In his oral evidence, he said that he had no intention of being dishonest and that there was nothing to hide. When asked if the information he provided was insufficient, he said that he put the material in correctly but that he should have filled his Application in at home and not at work, as he was not in the right frame of mind. He also said that he should have filled it in with his parents. He said that he thought at the time that providing the police record would be enough.
3. I accept the Applicant's evidence in relation to his completion of the Application and find that he acknowledged having a criminal history and provided a copy of his National Police Check to the Respondent. I take into account that the Applicant was 20 years of age at the time that he completed the Application and I accept, that by completing it at work, rather than at home with his parents, he did not properly turn his mind to the importance of providing detailed responses. In light of these circumstances, I do not find that the Applicant deliberately withheld information from the Respondent in his Application.
4. It was contended by the Respondent that the Applicant sought to minimise the circumstances of his offending, with particular reference to the explanation provided by him in the January document. It was submitted that whilst he had disclosed the 2021 Offences, he nonetheless withheld the complete facts which led to the offences and downplayed the circumstances of the offences in the January document. In his February document, the Applicant completely rejected this and stated that he was providing his open and honest account of the event and that he expressed honest disappointment in his behaviour and the impact that it has had on him and his career to date. He stated that he believed that he acted with complete candour. He went on to say as follows (sic): During the whole application process, I have tried to be as open and honest as I can. I have never intentionally withheld information or not respond to requests. I have learnt a lot about the process of applying for and responding to formal positions and now I am 21 years old I would respond differently.
5. I find that the Applicant was open in the January document about having consumed beer prior to going to the hotel and to continuing to drink whilst he was there. He acknowledged that "[u]nfortunately, with the amount of alcohol [he] had consumed at this point [he] made a poor decision and stupidly resisted their directions to leave the premises". I find that at no time did the Applicant deny having committed the 2021 Offences for which he was convicted including the assaults on the Duty Manager and the Bartender. Whilst the Applicant stated that he did not "intentionally physically attack the two security guards", I find that this was not a denial or minimisation by the Applicant of his actions but rather him seeking to contextualise his violence as an attempt to free himself from their hold.
6. In the January document, the Applicant acknowledged that he was very disappointed with himself over the 2021 Offences and for the embarrassment that it had caused his friends and family. He stated that he regretted the 2022 matters. In his oral evidence, he said that he had made mistakes when he was younger, and this had caused problems for his family and friends and that he was very remorseful about what he had done. He gave evidence that he had worked on himself and that he was no longer the same person that he was. He referred to putting restrictions on himself and gave evidence that he now had a girlfriend and had "calmed down" significantly. His evidence was that he had committed no further offences.
7. The Respondent also relied on the Applicant's statement in the January document that following the 2021 Offences, he "participated in four alcohol counselling sessions at the Sydney Drug and Education Counselling Centre" through his own initiative. The Respondent submitted however that the evidence established that these counselling sessions occurred between 9 June 2022 and 20 July 2022. In the February document, the Applicant thanked the Respondent for correcting the timing of the counselling sessions and acknowledged that all sessions were after both the 2021 Offences and the 2022 matters. He stated that he undertook these sessions voluntarily and that all sessions were centred around the management of his consumption of alcohol and resulting behaviour. He said that he had learned valuable insights into managing alcohol and his behaviour.
8. In his oral evidence, the Applicant maintained that he was disappointed with himself after the 2021 Offences and that whilst he did participate in counselling, it was not directly after the 2021 Offences and had happened later. He said that he was being truthful in the January document but that it may not be seen that way. The Applicant gave evidence that the counselling was very effective and that whilst he occasionally still drinks, it is limited to once per week. He said he does not enjoy drinking as much and that he stays away from binge drinking. He also gave evidence that he goes out less than previously and that through counselling, he understands that he does not need to drink. He stated that having a girlfriend had also helped him.
9. The Respondent submitted that the Applicant had neither addressed his drinking problem nor attended counselling until after the 2022 matters. The Applicant acknowledged that he did not attend counselling until after the 2022 matters. I accept however that the Applicant did voluntarily attend four counselling sessions from 9 June 2022 at the Sydney Drug and Education Counselling Centre and that the Centre is a specialised drug and alcohol service which provides treatment for young people. I accept the Applicant's evidence as to the effect that counselling has had on him and that since that counselling, there have been no further incidents, including incidents relating to alcohol or violence.

Character references

1. The Respondent submitted that the character references relied upon by the Applicant should be afforded little or no weight, largely because none of the referees refer to the Applicant's offending, convictions or sentencing. In the February document, the Applicant stated that all of his character referees were aware of his background and that he was not aware that a character reference needed to include a list of the offences for it to be valid. As referred to previously, the Applicant provided a number of updated character references confirming that those referees were aware of all of the offences referred to in the internal review decision.
2. Mr Holmes, Ms Dutton and Ms Robertson-Gregg have all known the Applicant and his family for many years, and each provided an updated reference to confirm their awareness of his offending. Each acknowledged that the Applicant has had issues in his past. Ms Robertson-Gregg states that "Any instances of youthful indiscretion should not overshadow [the Applicant's] true character, as I have witnessed him evolve into a mature and dependable individual". She wholeheartedly endorsed the Applicant and stated that he has the potential to excel in the real estate industry. In her reference of 5 February 2024, she refers to the Applicant's previous offending and notes that he has matured with age and that she has observed his commitment to "building a strong and reliable group of peers which is complemented by a cohesive family unit". She believes that the Applicant is "grounded, has learned from his mistakes, and has a strong desire to return to a job which he loved". Mr Case and Ms Dutton also refer to his past issues in their references and have provided positive assessments about his current situation.
3. Ms Leach is the Head of Property Management Department at Upstate. In her reference of 20 December 2022, she indicated that the Applicant was then supporting the leasing team. She stated that it had been an absolute pleasure getting to know the Applicant over the previous four months and that learning of the "unfortunate events" that had happened in the Applicant's life had been a shock to her. She stated that the Applicant had shown signs of true passion and commitment towards his career in real estate and had been open with her and her team about his aspirations in continuing in the profession. She noted that he had been an asset to her team. Ms Leach provided a further reference dated 1 March 2023. In that letter of support, she stated (sic): I understand [the Applicant] has made some poor decisions in life, but I believe he has upheld the professional standards expected of a real estate agent and to be awarded his certificate of registration. He has a bright future in real estate and feel he should be given every opportunity to grow and thrive professionally.
4. In her updated reference dated 5 February 2024, Ms Leach confirmed that at the time of providing her initial reference, she was aware of the offences referred to in the internal review decision.
5. A reference was also provided by Ms Wood dated 30 December 2023. Whilst no updated reference has been provided from her to confirm that she was aware of the Applicant's previous offending, the Applicant's evidence was that she was aware of it but was unavailable. In any event, Ms Wood indicates in her reference that the Applicant is employed as a packer on a casual basis at Inspired Outcomes, a relocation service for seniors and she was very positive about the Applicant in that role, including in respect of his interactions with clients.

Has sufficient time passed to demonstrate the Applicant's reformation of character?

1. Whilst the Respondent submitted that insufficient time has passed to demonstrate the Applicant's reformation of character, the Applicant's evidence was that he has undergone a personal journey of maturing and learning and firmly believes that he is a person of good character and would very much like to continue his career in real estate if granted the opportunity. The 2021 Offences were committed by the Applicant on 1 May 2021, and he was convicted and sentenced in relation to them on 3 November 2021. The Community Corrections Order that he was made subject to concluded on 2 November 2022. It has now been some three years since the 2021 Offences and over 18 months since the Community Corrections Order ended.
2. Whilst the Applicant was charged with the 2022 matters in June 2022, I accept that the matters were dismissed on 1 August 2023. I accept the Applicant's evidence that he was not intoxicated at the time of the 2022 matters; that he believed he was acting in self-defence and that he is remorseful for his actions, in that he did not walk away or seek assistance. No further evidence in relation to the 2022 matters was adduced by either party. Having regard to these findings and those set out previously, I place extremely limited weight on the Applicant's conduct in relation to the 2022 matters. It was not disputed that the Applicant has not come to police attention since June 2022, now some two years ago, and I accept this to be the case.

Conclusion

1. The Applicant submitted he does not want his earlier mistakes to define him going forward and that he has demonstrated that he has the ability to be successful in real estate and the knowledge to recommence his career, having passed his real estate examination. He submitted that when the wider scope of his actions are taken into account, it shows him to be a fit and proper person and he would like a chance, given his age and enthusiasm for real estate to be granted a licence.
2. I have regard to the factors referred to in Saadieh, and in particular that the Applicant was only 18 years of age at the time of the 2021 Offences and was 21 years of age at the time of the hearing in this matter. Whilst the 2021 Offences involved alcohol and violence, the Applicant has acknowledged his actions, completed his Community Corrections Order, and voluntarily attended counselling. There have been no further convictions since the 2021 Offences, and the Applicant has not come to the attention of police since June 2022, and there is no evidence of any incidents since that time. I accept the Applicant's contention that he is now a very different person to who he was previously.
3. The Applicant has disclosed his previous offending to his referees, including his previous employer, Ms Leach, and notwithstanding this, each of these referees has provided a favourable reference and expressed support for the Applicant. These references support the Applicant's contention that he is now a different person. I accept that the Applicant is remorseful for his conduct and for the embarrassment that it has caused to his friends and family. I accept that Ms Leach and Ms Wood are very positive about the Applicant's work for each of them and that Ms Leach expressed the view that he had a bright future in real estate.
4. The Applicant is applying for a certificate of registration under the PSA Act as an assistant agent. Whilst the Applicant's conduct in relation to the 2021 Offences raises concerns in relation to the Applicant's fitness and propriety at that time, having regard to the Applicant's conduct in the intervening period; the character references from his family friends and in particular from his previous employer, Ms Leach; I am satisfied that the Applicant is a fit and proper person to hold a certificate of registration under the PSA Act. It follows that the correct and preferable decision is for the decision under review to be set aside and for the Application for a certificate of registration to be granted by the Respondent.

Orders 1. The decision under review is set aside. 2. The Respondent is to grant the Applicant a certificate of registration as an assistant agent.

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: 02 July 2024