Camillos v Commissioner for Fair Trading

[2005] NSWADT 216

CITATION:	Camillos v Commissioner for Fair Trading [2005] NSWADT 216
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Angelo George Camillos RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	052024
HEARING DATES:	22/08/2005
SUBMISSIONS CLOSED:	08/22/2005
DATE OF DECISION:	09/22/2005
BEFORE:	Karpin A - ADCJ (Deputy President); Curraey P - Non Judicial Member
APPLICATION:	Conveyancer - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Conveyancers Licensing Act 1995
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT V Griswold, solicitor
ORDERS:	Decision under review affirmed

1 The Applicant, Angelo George Camillos, has applied to the Tribunal for a review of a decision made on the 9 March 2005, by Michael Reid, Manager Licensing Department in the Office of Fair Trading. That decision was an Internal Review, conducted pursuant to section 53 of the Administrative Decisions Tribunal Act 1997, following a decision by an administrator to refuse the Applicant a licence pursuant to the Conveyancers Licensing Act 1995.

2 Mr. Reid overturned that decision and made orders granting a licence upon the following conditions:

• The Application for a full licence without a condition requiring supervision is refused on the basis that the evidence provided did not satisfy the delegate of the Commissioner that the applicant met the requirements for the grant of a licence under the Conveyancers Licensing Act 1995. In particular the applicant failed to satisfy the delegate of the Commissioner that he complied with Section 7(1) (b).
• The application for a full licence is granted subject to a condition that conveyancing work only be carried out under the supervision of a licensed conveyancer whose licence is not subject to such a condition, or a solicitor whose practising certificate is not subject to such a condition will be granted on payment of the outstanding fee and the provision of a copy of the appropriate professional indemnity insurance.

The reasons for this decision were contained in a 6 page document appended to the orders. From that decision the Applicant seeks a review by the Tribunal.

3 On hearing before the Tribunal, the Applicant appeared for himself. The respondent was represented by a solicitor. Mr. Reid was called by the Respondent and gave brief evidence in chief, and dealt with questions from the Applicant and the Tribunal. Both the Applicant and the solicitor for the Respondent provided written submissions.

4 The Applicants reasons for seeking a review are:

1. To enable him to gain work.

2. The Administrator has misinterpreted the method of implementation of section 7 of the Conveyancers Licensing Act 1995

3. The Administrator has interpreted section 11 of the Conveyancers Licensing Act to mean that conditions “must” be applied, rather than “may” be applied.

4. The Conveyancers Licensing Order 1999 Para. 4(3) has been taken to mean that the period cannot be reduced to zero.

5 Mr. Camillos attached a letter to his initial application in which he set out the bases upon which he challenged Mr. Reid’s decision.

6 The Applicant takes issue with Mr. Reid’s finding that he does not have recent experience in conveyancing. He asks the Tribunal to take into account his 20 years experience in conveyancing whilst employed in Westpac bank, together with the reference of Mr. K.G.Hallam of 9 February 2005. The Applicant was under the supervision of Mr. Hallam during 1988-1990. Mr. Hallam, who held the position of Senior Commercial Manager at Westpac, notes that it was the practice of the bank to have all lending/conveyancing matters undertaken by “in house” employees without reference to outside solicitors. He says of the Applicant:

“He had a broad background in…legal aspects of lending where he occupied several positions over a four year period preparing legal documents for the banks internal purposes.

This included the taking of mortgages, equitable mortgages, Guarantees, Bill of Sale and supporting documents. He also attended to settlement of sale and purchase of property under mortgage.

He impressed as a careful conscientious person with an eye for detail. He carried out the duties allotted to him most satisfactory (sic) and his decisions were well reasoned and balanced.”

7 Between 1981 and 1995 the Applicant was employed by Westpac in various capacities. In 1996 he took up employment in Tahiti where he worked until returning to Sydney and setting up his own business in 1998. He has worked in that business to date. He describes the activities of that enterprise as: “ Business to business consulting in areas of data processing, credit policy, loan procurement and office management.”

8 The applicant’s employment in Tahiti appears to have been similarly directed.

9 Whilst working for Westpac, the applicant consistently advanced in seniority and his Curriculum Vitae attests to a broad range of management skills, with some portion of his responsibilities directed to loan security documentation in various forms including equitable mortgages over company assets.

Relevant Education

10 In 1991 the applicant achieved a Graduate Certificate of Management at the University of Western Sydney, and in 2002-03 obtained the Advanced Diploma of Conveyancing at T.A.F.E. New South Wales.

Reasons for Internal Review Decision

11 In his reasons for judgment and his evidence before the Tribunal, Mr. Reid emphasised that the applicant was suitably qualified for the grant of a licence on the basis of his educational achievements in relevant fields, however, Mr. Reid was not satisfied that the applicant had demonstrated compliance with requirements of the Act concerned with relevant supervised experience. Specifically, the applicant had not complied with the provisions of The Conveyancers Licensing Order 1999 (“the Order”).

12 The Conveyancers Licensing Order 1999 sets out the educational qualifications, practical training and conveyancing experience required for the granting of a licence. A person who otherwise meets the relevant criteria, and has obtained the Advanced Diploma in Conveyancing from the Sydney Institute of Technology, is entitled to the grant of a full licence if their practical training and Conveyancing experience includes:

Two years practical training and Conveyancing experience; at least one year of the practical training and Conveyancing experience must be while employed or otherwise engaged on a full-time basis under the supervision of a licensed conveyancer or a solicitor.

And to a conditional licence if that person has had:
One year’s relevant practical training and Conveyancing experience which may be undertaken in a licensed conveyancer’s office, or a solicitor’s office, or any business or government department where regular conveyancing work is carried out.
13 Mr. Reid was satisfied that the applicant met all the relevant criteria with the exception of the requirement for practical supervised experience.

14 To meet the practical criterion for the grant of a full conveyancer’s licence, a person who has otherwise qualified, must have 2 years relevant practical training and conveyancing experience, at least one year of this practical training and conveyancing experience must be whilst employed or otherwise engaged on a full time basis under the supervision of a licensed conveyancer or a solicitor.

Relevant Legislation

Conveyancers Licensing Act 1995 No 57

Definitions

4 Conveyancing work

(1) For the purposes of this Act, conveyancing work is legal work carried out in connection with any transaction that creates, varies, transfers or extinguishes a legal or equitable interest in any real or personal property, such as (for example) any of the following transactions:

(a) a sale or lease of land,

(b) the sale of a business (including the sale of goodwill and stock-in-trade), whether or not a sale or lease of land or any other transaction involving land is involved,

(c) the grant of a mortgage or other charge.

(2) Without limiting subsection (1), conveyancing work includes:
(a) legal work involved in preparing any document (such as an agreement, conveyance, transfer, lease or mortgage) that is necessary to give effect to any such transaction, and

(b) legal work (such as the giving of advice or the preparation, perusal, exchange or registration of documents) that is consequential or ancillary to any such transaction, and

(c) any other legal work that is prescribed by the regulations as constituting conveyancing work for the purposes of this Act.

7 Qualifications for a licence
(1) To be qualified to be granted a licence a person must satisfy the Director-General that he or she:

(a) is at least 18 years of age, and

(b) has such educational qualifications, practical training and conveyancing experience as the Minister approves by order published in the Gazette, and

(c) is not a disqualified person, and

(d) has paid such part of any contribution or levy payable under Part 4 as is due and payable on the granting of the licence, and

(e) will, for the whole of the period of the licence, be insured under an approved policy of professional indemnity insurance in force with respect to the person or his or her employer, or will as a licensee be exempt under the regulations from the requirement for professional indemnity insurance.

(2) Under this section the Minister can approve educational qualifications, practical training and conveyancing experience for a limited class of transactions specified in the approval, so as to enable a person who has the qualifications, training and experience concerned to be granted a licence subject to conditions that limit the licensee to carrying out conveyancing work in relation to that limited class of transactions.

(3) Such a limited approval can be expressed to apply only to persons who obtained the qualifications, training and experience concerned before a specified day or during a specified period.

9 Applications for licences

An application for a licence is to be made to the Director-General in a form approved by the Director-General.

10 Determination of applications

(1) After considering an application, the Director-General may determine to grant a licence to the applicant, or to refuse the application.

(2) A licence must not be granted to an applicant unless the applicant is qualified to be granted a licence (as provided by section 7).

(3) The Director-General may refuse an application on any of the grounds (listed in section 13) on which the Director-General may suspend or cancel a licence.

(4) The Director-General must cause notice of the Director-General’s decision on an application (including reasons for the decision, if the decision is to refuse the application) to be given to the applicant within 14 days after the decision is made.

(5) For the purposes only of any appeal proceedings arising in connection with an application for a licence, the Director-General is taken to have refused the application if the Director-General has not finally disposed of the application within 8 weeks after the application was duly made.

11 Imposition of conditions

(1) A licence may be granted subject to conditions.

(2) The conditions may include conditions of the following kind:

(a) a condition prohibiting the licensee from carrying out conveyancing work otherwise than as an employee of a licensee whose licence does not contain such a condition,

(b) a condition requiring the licensee to undertake or complete a specified course of studies within a specified period of time,

(c) a condition prohibiting the licensee from carrying out conveyancing work in relation to specified kinds of transaction,

(d) a condition prohibiting the licensee from carrying out conveyancing work except in relation to specified kinds of transaction,

(e) a condition requiring the proposed licensee to undertake or complete a specified course of further education during each year for which he or she remains a licensee.

14 Reviews by the Administrative Decisions Tribunal

A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:

(a) a decision of the Director-General refusing to grant a licence to the person,

(b) a decision of the Director-General to impose a condition on a licence of the person, a decision of the Director-General suspending or cancelling a licence of the person.

15 The applicant contends that his experience in conveyancing in the course of his employment with Westpac Bank is relevant, and sufficiently recent experience, particularly in the light of having acquired the approved educational qualification from the Institute.

16 In response to the assertion that he has not worked under the supervision of a licensed conveyancer or solicitor, he maintains that “the bank at the time was the equivalent of any solicitor, with a fiduciary duty to its shareholders and customers in respect of the accuracy of its conveyancing, and as such its process of training and audit was all the necessary supervision.” The bank did not employ solicitors or conveyancers to do its conveyancing work.

17 The applicant argues that the Commissioner has a discretion in some circumstances to reduce the practical training period by some amount where the circumstances warrant it. Under this head the applicant argues that the sum of his experience is greater than would be provided in a 2 year period. He seeks that in his case it should be reduced to nil. In answer to a question from the applicant, Mr. Reid informed the Tribunal that to his knowledge there had only been 3 applications for exemption, one of which succeeded in circumstances where the applicant was 2 weeks short of completing the required period under supervision.

18 The applicant submits that a condition could be attached to the grant of a full licence, which would permit him to practice unsupervised, but prohibit him from maintaining a trust account for a specified period. He suggests that the language of section 11 is sufficiently broad to encompass such a condition, and that this would provide protection for the public.

19 The applicant’s practical conveyancing experience has been limited to employment in the bank environment, in which the applicant always performed his role for one party, the bank. This contrasts with the experience gained in a solicitor’s practice, or that of a licensed conveyancer, where the employee would gain experience acting for parties in a transaction, in various capacities, whether as vendor, purchaser, mortgagor or mortgagee. In such employment, there would also be experience of dealing directly with members of the public in a wide range of commercial and domestic transactions. The applicant’s experience has been limited to acting for the bank whilst employed by the bank.

20 In the view of the Tribunal, the limited nature of the applicant’s employment, albeit over a lengthy period, and carried out impeccably, does not cover the range and depth of experience contemplated by the requirements of the Conveyancers Licensing Order 1999. The nature and length of supervised employment provided for in the Conveyancers Licensing Order is clearly designed to ensure a level of protection for the public. It will be a rare case in which there are adequate grounds for reducing or limiting the level of training and experience which the legislature has deemed essential.

21 The Tribunal is not persuaded that the work which the applicant carried out in the course of his employment with Westpac, meets the requirement of practical training and Conveyancing experience stipulated in The Conveyancers Licensing Order 1999. Specifically, the Tribunal finds that at no time was his work supervised by a solicitor or licensed conveyancer. Further, there is no power in the legislation to treat the bank as standing in the shoes of a solicitor or licensed conveyancer.

22 The applicant’s request that the Tribunal exercise the discretion of the Commissioner and grant a complete waiver of the supervised experience requirements, cannot succeed. It is clear that such a discretion will only be exercised on rare occasions and in special circumstances. To waive the requirements for a period of supervised employment would be to remove a requirement which is clearly designed to ensure that academic training has been put into practice under supervision, and with the opportunity for oversighting of the applicant’s work over a reasonable period. The protection of the public is paramount in determining suitable qualifications for those who engage in the business of licensed conveyancers. The circumstances in which any reduction of the requirement for supervision is appropriate will be rare indeed.

23 The applicant, to a degree, recognizes this concern, which he suggested could be met by the grant of a full licence with a condition attached that he not operate a Trust Account. In the view of the Tribunal, this condition is not available. There is no suggestion that the applicant is lacking in competence or probity, such that he should not have the privileges and responsibilities of the management of trust funds, which attaches to the grant of a full licence. Inevitably, were that an issue, he would not be granted a full licence, or, more likely, any licence at all. There is no power in the Tribunal to attach a condition of that nature in these circumstances.

24 The Tribunal is not unsympathetic to the predicament in which the applicant finds himself. He informed the Tribunal that given his age he has found it impossible thus far to obtain employment in a supervised position. However, that sympathy cannot extend to granting the present application. The obligation of the Office of Fair Trading is the protection of the general public, in accordance with the provisions of the applicable legislative provisions.

25 The Tribunal is satisfied that the decision by the Commissioner to refuse the applicant’s application for the grant of a full licence, on the grounds that he did not meet the criteria for experience and practical training laid down in the legislation, was the correct decision having regard to the evidence available to the Commissioner, and that the legislative requirements were properly applied in arriving at that decision.

26 The evidence before this Tribunal being unchanged, the Tribunal affirms the decision of the Commissioner of 9 March 2005.