The Applicant relies on the various references and other material filed which address her character. Each of those character references indicates that the author holds her in high regard. She is referred to as honest and reliable and a person of integrity with high ethical standards. As an employee she is described by Mr Ienna as "a highly dependable, honest and empathetic employee who balances the needs of landlords and tenants with great skill to achieve an outcome which is outstanding for both the Agency and the consumer."
In regard to the charge of embezzlement she continued to assert her innocence. In correspondence with the Respondent, she wrote:
For the record I entered into a plea of guilty to escape the 2 years of torment and intimidation my mental welfare and financial position I could not handle anymore.
My solicitor and prosecutor suggested I plead guilty and it was under their professional guidance that I pleaded guilty. I cannot clarify at any further links I did not do what I was accused of. I have spent the last three years studying to achieve a license and work my way into a position to ensure the financial security of my son welfare. I'm a hard-working honest individual ...
In regard to her personal circumstances, she wrote to the Respondent and stated:
I am a single mum who rely on my job. I was not convicted and I was advised that if I was not convicted it would not effect my job.
On another occasion she stated:
I am a single mother with no criminal history. I am of sound character and highly respected in my community
These comments reflect the position that she adopted in the Tribunal.
In her evidence before the Tribunal the Applicant asserted that the charges arose from a dispute with her former employer who lodged a complaint out of revenge. She denied that she had ever taken the money for her own use.
The Applicant stated that she had only agreed to enter a guilty plea because of the emotional and financial impact that the process was having on her. In addition to the psychological impact, she had spent $8,000 on legal fees and she could not afford to pay any more. She stated that she had been assured that there would be no implications for her licence.
In regard to the Respondent's submission that she had not expressed remorse, she denied that she has done anything wrong. She had nevertheless offered to pay the $600 that she was alleged to have taken.
[2]
Discussion
This is a matter in which it appears that the Local Court outcome is the result of the guilty plea that was entered, and that the Applicant entered the plea on legal advice. It is apparent from the transcript of the July hearing that Magistrate Barnett raised the issue of the element of "fraudulent embezzlement" in the charge. It seems that Magistrate Barnett was concerned that there was a conflict between the case that the Applicant's solicitor had presented and the guilty plea. It is also apparent that Magistrate Barnett was focussed on the term "fraudulent".
The prosecution conceded that "there's significant utility in the plea".
Magistrate Barnett ultimately accepted the guilty plea and ordered that the Applicant was to be subject to a conditional release order. It is not clear which of the considerations listed under section 10(3) of the Crimes (Sentencing Procedure) Act 1999 Magistrate Barnett took into account in making that order.
Notwithstanding the guilty plea, the Applicant has not wavered from her position that she was not guilty of "fraudulent embezzlement". The Respondent is critical of her lack of remorse. It is submitted that the Tribunal should place weight on the Applicant's lack of remorse for her conduct, and she has continued to assert her innocence notwithstanding her guilty plea to the charge.
In Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 Senior Member Walker observed at paragraphs [62] - [64]:
62. Those conclusions have a bearing on the respondent's next ground under s 11(3)(a), the applicant's apparent lack of remorse over his actions towards Fiona in 1994 and his maintained denial that certain events found by the courts to have occurred actually happened. That attitude becomes more comprehensible, however, given the doubts that attend some of the courts' findings.
63. Further, in such cases, attaching substantial weight to lack of remorse can be somewhat problematical. Unfortunately, it is not unknown for a person to be inappropriately sentenced or wrongly convicted. In some instances people have pleaded guilty to offences they did not commit, sometimes as a result of pressure. In a Migration Act case in the federal Administrative Appeals Tribunal, I made this observation:
"My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender's record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim": Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, [101].
64. As far as I know that proposition has never been rejected or criticized by any court or tribunal. In this case, the applicant has had no criminal convictions, either before or after 1994, has not had any other AVO issued against him, and never breached the conditions of the AVO obtained in favour of Fiona. He has never behaved in an aggressive or rancorous manner towards Fiona or any of the witnesses against him at the AVO hearing, although he has had 20 years in which to do so.
In this matter, the Applicant has no criminal convictions. There is no suggestion that she has failed to comply with the conditions imposed by the Local Court. It seems that while she is unable to perform roles that require a licence, she has continued working in the industry under her Certificate of Registration.
A lack of remorse on the part of a person who pleads guilty to a crime is distinguishable from that of a person who maintains their innocence. In the circumstances, I drawn no inference from the fact that the Applicant genuinely believes herself to be innocent of the charge.
While I agree with the Respondent that the authors of most of the character references were not aware of the guilty plea or the Court outcome, it is apparent from those testimonials provided by referees who do know the outcome still hold her in high regard. Given the contents of the references it is likely that the authors would maintain their views if they were informed of the guilty plea and outcome. Nevertheless, I do not need to place more than minimal weight on those references.
However, I put particular weight on the reference from Mr John Ienna. Mr Ienna is the Applicant's employer and in April 2023 he wrote:
Throughout her tenure I have found Kellie to be a highly dependable, honest and empathetic employee who balances the needs of landlords and tenants with great skill to achieve an outcome which is outstanding for both the Agency and the consumer. I draw your attention to the vast list of recent google reviews (see attached) in favour of Kellie which is testimony to my summary above. Kellie's ability to attract such praise whilst undertaking a difficult job is a rare feat indeed and something that her work colleagues and I are very proud of. I consider her to be an absolute asset to the industry where poor customer service is rife.
I would also like to confirm that approximately 12 months ago (around time of License renewal) Kellie approached me in great distress since her License renewal seemed to have stalled based on allegations made against her by a former employer. Kellie and I couldn't get any clarification around the delay in renewing her license and reasons for doing so. Kellie was concerned about her working status and placing the business in jeopardy. Kellie was assured she could continue working under her current Certificate of Registration. Kellie was always up-front with me about here status and her past with the said, former employer.
I would also like to point out that I received a call from an individual just after employing Kellie warning me not to keep her on and indicating that she will "rip me off". I asked for his name and more detail, but this was not forthcoming. I naturally found the call un-nerving, but in the absence of any real evidence and an underlying vindictive tone of the call, I decided to give Kellie a go. I must say this was one of the best decisions I have ever made in my tenure as the Licensee of Ray White Umina Beach.
I am satisfied that Mr Ienna is probably aware of the Court outcome and he nevertheless supports the Applicant to continue to work in the industry.
In regard to the charge of embezzlement, the Tribunal does not need to determine if the Applicant was guilty of the charge against her. The Tribunal needs to consider the conduct which gave rise to those charges: EMB v Commissioner of Police [2020] NSWCATAD 255 at paragraph [29].
As noted, the Local Court matter concluded because of the guilty plea. The Applicant was not cross-examined. The complainant was cross-examined but his evidence was open to criticism. The complainant did not participate in these proceedings and the Applicant was not cross-examined. In the circumstances I am left with the Local Court outcome.
It is clear that in July 2020, the Applicant received payment of $600 from a tenant that was paid into her personal bank account. It seems that her explanation is that, as a matter of expediency, she dealt directly with the tenants and the landlord. She failed to account to her employer for the $600 that she received. It also seems that neither the landlord, nor her parents, received the $600. It is probable that the $600 was not paid into the agency trust account.
On the material that I have before me the reason for the Applicant's actions is not clear. However, in my view, there must be doubt about whether the Applicant has acted dishonestly. However, I am satisfied that the Applicant failed to meet her obligations under the Act and the Regulation.
As the Appeal Panel observed in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at paragraph [20]:
It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven.
See also the discussion in Dosovic v Commissioner of Fair Trading [2023] NSWCATOD 58.
Magistrate Barnett accepted that the Applicant may have been naïve and inexperienced and, while noting that there was a lack of genuine contrition and remorse, also accepted that there might be other reasons for a guilty plea. The court also stated:
"I'm making findings that you are unlikely to reoffend".
I share that view.
In the present matter it is necessary to determine whether the Applicant can be held out as a fit and proper person to hold a Class 2 Real Estate Licence under the Act.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) the High Court discussed the issue of fitness and propriety and noted that fitness concerns honesty, knowledge and ability and that each case must depend upon its own circumstances.
At the July hearing, Mr Kernick made the submission to the Court that the Applicant's conduct represented poor management and poor record keeping. This may provide some explanation for her actions. If that is the reason for the conduct, it reflects on the Applicant's ability to perform the role of a licensee. However, given the views expressed by Mr Ienna and the view expressed by Magistrate Barnett I am satisfied that the Applicant is unlikely to reoffend. I hold that view notwithstanding that she remains subject to the Conditional Release Order until July 2024.
In my view, sufficient time has passed since the conduct that gave rise to the charge occurred to be satisfied that the Applicant is able to be held out to the pubic as a fit and proper person to hold the licence that she is seeking.
All the material before me suggests that the Applicant has the honesty, knowledge and ability to perform the roles that would be authorised by a Class 2 Real Estate Licence under the Act. I am satisfied that she is a fit and proper person to hold the licence. Therefore, the correct and preferable decision is for the decision under review to be set aside and for the Application for the renewal of the licence to be granted.
[3]
Order
The decision under review is set aside
The decision is made that the Applicant is granted a Class 2 Real Estate Licence under the Property and Stock Agents Act 2002.
[4]
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: 27 July 2023
Parties
Applicant/Plaintiff:
Yates
Respondent/Defendant:
Commissioner for Fair Trading
Cases Cited (10)
The Tribunal's approach
The Act regulates the licencing of real estate agents in NSW. The Tribunal has jurisdiction to review a decision of the Respondent to refuse to grant a licence application under section 27 of the Act. This jurisdiction is exercised under the Administrative Decisions Review Act 1997 ("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 before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34].
Under section 28(2) of Civil and Administrative Tribunal Act 2013 ("the NCAT Act") the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: section 38(2) of the NCAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
Fit and proper person
As noted, the Respondent contends that the Applicant is not a fit and proper person to hold a licence under the Act. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7):
"The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."