Harries v Commissioner for Fair Trading, NSW Office of Fair Trading

[2006] NSWADT 203

CITATION:	Harries v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 203
DIVISION:	General Division
PARTIES:	APPLICANT Martyn Boyd Harries RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	053366
HEARING DATES:	24/02/2006
SUBMISSIONS CLOSED:	03/15/2006
DATE OF DECISION:	07/06/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Property, Stock and Business Agents Act - Real Estate agent - licence or certificate of registration - grant - Real Estate agent - licence or certificate of registration - grant
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Licensing and Registration (Uniform Procedures) Act 2002 Migration Act 1958 (Cth)
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861 Bek v Commissioner for Fair Trading (2004) NSWADT 149, Eleter v Director-General, Department of Fair Trading (2002) NSWADT 138 Hughes and Vale v State of New South Wales (1995) 93 CLR 127 Joyce v Commissioner of Police, New South Wales Police Service (2000) NSWADT 17 Kerkham v Department of Fair Trading (2002) NSW ADT 63 Law Society of New South Wales and Bannister Supreme Court of New South Wales Court of Appeal 27 August 1993 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Parvin v Commissioner for Fair Trading (2005) NSWADT 34 Pollard v Commonwealth DPP (1992) 28 NSWLR 659 Yelland v Commissioner for Fair Trading (2005) NSWADT 293
REPRESENTATION:	APPLICANT B Compton, Solicitor RESPONDENT E Aylward-Dyne, Solicitor
ORDERS:	1.The decision under review is set aside; 2.In substitution the decision is made that Mr Harries’ application for a real estate agents licence is granted

1 In April 2005, Mr Harries applied to the Commissioner for Fair Trading ("the Commissioner") for an individual full licence under the Property, Stock & Business Agents Act 2002 ("the Act"). He disclosed that he had been convicted for a number of traffic offences. Following an unsuccessful application for review, Mr Harries brought these proceedings for a review by this Tribunal.

Background

2 In April 2004, Mr Harries applied for an individual licence under the Act. He also applied to the Commissioner for a corporate licence on behalf of Specific Property Group Pty Limited. Both the individual licence and the corporation licence were refused.

3 At various times before 2004, Mr Harries held a Certificate of Registration as a Real Estate Salesperson. Between October 2001 and March 2004 Mr Harries was convicted on a number of traffic matters. These matters included three mid-range PCA offences, negligent driving not causing injury, reckless driving and driving whilst disqualified.

4 Mr Harries’ last convictions were on 2 March 2004, the events relating to these convictions having occurred on 13 January 2004. On that occasion he was convicted of driving whilst disqualified, mid range PCA, proceeding through a red/yellow traffic light and driver state false name or address. He was sentenced to periodic detention and further disqualification for the first two offences and fined $150 on the traffic light matter and $150 on the driver state false name or address matter. At the time of these convictions Mr Harries held a Certificate of Registration.

5 Question 12 on the individual licence application form that Mr Harries submitted in April 2004 asked: "Have you been convicted in NSW or elsewhere of an offence involving dishonesty that was recorded in the last 10 years". Mr Harries answered "No" to that question.

6 Question 6 on the corporation licence application form that Mr Harries submitted asked: "Has any manager or person concerned with the management of a corporation being convicted in NSW or elsewhere of an offence involving dishonesty that was recorded in the last 10 years". Mr Harries answered "No" to that question. He contends that he had no idea that ‘driving matters’ were considered criminal offences or that they may involve dishonesty.

7 In September 2004, Mr Harries applied for renewal of his Certificate of Registration. He answered "yes" to the question involving offences of dishonesty. That application was forwarded together with a submission from Mr Harries’ solicitor in relation to the application of section 16(2) of the Act. A Certificate of Registration was subsequently issued to Mr Harries and a copy is in evidence.

Applicable Law

8 Section 8(1) of the Act provides, in part, that a person cannot represent, act or exercise any of the functions of a real estate agent, unless the person is the holder of a real estate agents licence. Section 3(1) of the Act defines a real estate agent.

9 Section 12(4) of the Licensing and Registration Uniform Procedures Act 2002 (“the Uniform Act”) provides that an application for a licence shall contain such particulars as are required to complete the relevant form.

10 Section 14(1)(b) of the Act provides that a person is ineligible to hold a licence if the person is not a fit and proper person to hold a licence. Section 14(1)(d) of the Act provides that a person is ineligible to hold a licence if that person is a disqualified person. Pursuant to section 16(1)(a) of the Act a person is a disqualified person if the person has convictions for an offence involving dishonesty in the last 10 years unless the discretion is exercised under sub-section (2). Section 16(2) of the Act provides that the Commissioner may ignore the offence involving dishonesty “because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence”.

11 Section 19 of the Act provides that an application must not be granted if the Applicant is ineligible to be granted the licence. Section 18 of the Uniform Act provides that a Licensing Authority may refuse a licence.

The Commissioner’s case

12 The applications for the licences were refused under section 16(1)(a) and section 16(2) of the Act as the Commissioner was of the opinion that Mr Harries is a disqualified person in that he has committed an offence of dishonesty in the last 10 years as he has been convicted of "Driver/rider/state false name and address", that insufficient time has passed since the commission of the offence, and, that, the offence is not trivial. The applications for the licences were also refused under section 14(1)(b) of the Act, as the Commissioner was not satisfied that Mr Harries is a fit and proper person to hold a licence.

13 The Commissioner is of the opinion that "Driver/Rider/State false name and address" is an offence involving dishonesty. It is submitted that for an offence to involve dishonesty it is not necessary that there be some positive act but that the expression should be given its ordinary everyday meaning. Ms Aylward-Dyne referred to the decision in Eleter v Director-General, Department of Fair Trading (2002) NSWADT 138 where Lees JM stated at paragraph 49 of her decision:

"It is not necessary for dishonesty to be a legal component or requirement of the offence. It is enough that dishonesty is involved in the offence in a way which most people would understand the term (see Pollard v Commonwealth DPP (1992) 28 NSWLR 659).”

14 In Joyce v Commissioner of Police, New South Wales Police Service (2000) NSWADT 17 the Tribunal Deputy President stated at paragraph 18

18 My conclusions are different in relation to whether the offence involves “dishonesty.” “Dishonesty” is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as “lack of honesty; deceitfulness, fraud.” A person would be acting dishonestly or deceitfully where that person fails to disclose to police that goods have come into his or her custody in circumstances where that person has reasonable grounds for suspecting that the goods have been stolen or otherwise unlawfully obtained. The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act.

15 Mr Harries’ offence of "Driver/Rider/State false name and address" was committed on 13 January 2004 and Mr Harries pleaded guilty to the offence. The Commissioner submits that unless Mr Harries comes within the exceptions set out in section 16(2) of the Act he is ineligible to hold a licence because of section 14(1)(d).

16 Under section 16(2) of the Act the Commissioner's delegate is to take into account the time that has passed since the offence was committed and the acts or omissions giving rise to the offence. The Commissioner referred to decisions in Bek v Commissioner for Fair Trading (2004) NSWADT 149, Parvin v Commissioner for Fair Trading (2005) NSWADT 34 and Yelland v Commissioner for Fair Trading (2005) NSWADT 293 where the Tribunal found that "Driver/rider/states false name or address" is not a trivial offence.

17 In Eleter Lees JM considered that the nearly four and a half years that had passed since Mr Eleter’s offence of receiving stolen property was an insufficient period for the discretion to be exercised in Mr Eleter’s favour.

18 In Bek I was of the view that three and a half years was sufficient to warrant the exercise of the discretion to grant the licence. In Yelland I was of the view that the 14 months that had passed since Mr Yelland gave false information to police in order to avoid the consequences of his action was not sufficient to warrant ignoring the offence.

19 In Parvin O'Connor DCJ was of the opinion that 2 years was insufficient time to exercise the discretion under section 16(2) of the Act. He found that there was strong testimonial evidence to uphold Mr Parvin as being fit and proper but he affirmed the Commissioner's finding that Mr Parvin was a disqualified person. Ms Aylward-Dyne submitted that Parvin is distinguishable from this matter in that witnesses attended the hearing on behalf of Mr Parvin and His Honour had the opportunity to assess the credibility of the witnesses. Mr Harries relied upon written testimonials, which were vague as to the extent of the writer's actual knowledge of Mr Harries’ offences and heavily influenced by Mr Harries’ version of events.

20 The Commissioner asserts that Mr Harries has committed offences of dishonesty and submits that the offences are not trivial and that insufficient time has elapsed since the commission of the offences to exercise the discretion pursuant to section 16(2) of the Act.

21 The Commissioner also asserts that Mr Harries is not a fit and proper person to hold the licence sought. The term "fit and proper" has been defined in a number of cases. The leading case of Hughes and Vale v State of New South Wales (1995) 93 CLR 127 establishes the three characteristics of "fit and proper" as honesty, knowledge and ability. The decision as to whether or not to grant a person a licence must be exercised keeping in mind the activities in which the person will be engaged if the licence is granted Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The Tribunal’s jurisdiction is not to punish the offender but to protect the public. See Law Society of New South Wales and Bannister (Supreme Court of New South Wales Court of Appeal 27 August 1993).

22 The Commissioner asserts that while Mr Harries’ offences are unconnected with real estate work they go to fitness and propriety. It is submitted that the offence of "Drive/rider/state false name and address" cannot be isolated from the other offences committed by Mr Harries on 13 January 2004 and that Mr Harries gave inaccurate information to the police in the execution of their duties to avoid the consequences of his actions. These actions were in violation of a court-imposed order, in relation to earlier behaviour by Mr Harries.

23 The Commissioner also asserts that Mr Harries was dishonest in giving answers in his licence applications. When this is considered together with his conviction for "Drive/rider/state false name and address" and, his general disregard for traffic laws including driving whilst disqualified, it leads to the conclusion that Mr Harries is not a fit and proper person to be granted a licence.

24 The Commissioner also asserts that Kerkham v Department of Fair Trading (2002) NSW ADT 63 did not establish that "dishonesty requires some intent". Mr Kerkham had been convicted of a number of offences in relation to acting as a solicitor or a barrister without a current practising certificate and doing general legal work for a fee when he was not a barrister or a solicitor. Mr Kerkham pleaded guilty to all of the charges. The Tribunal considered that the offences committed by Mr Kerkham were strict liability offences. As such, the offences did not involve dishonesty and no further inquiry needed to be made by the Tribunal "to determine whether the particular acts or omissions of Mr Kerkham involved dishonesty". The Commissioner also argues that Bell J was not attempting to define the whole range of offences which might involve dishonesty in Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861 when she stated that "offences involving dishonesty embrace those such as stealing and robbery in which the property of another is taken with the intention thereby of permanently depriving the rightful owner of it".

25 The Commissioner argues that the Tribunal should not give weight to any submissions or evidence with respect to the circumstances in which Mr Harries was charged with the offence of "Drive/rider state false name and address". The Police Fact Sheet in relation to the incident varies significantly from the version which Mr Harries has presented and this is not the appropriate forum for such matters to be tested. Further, the Tribunal could not be confident that Mr Harries’ recollection of events would be accurate.

26 With respect to the fact that Mr Harries had disclosed the offence of dishonesty when he applied for and obtained a certificate as a real estate salesperson in about September 2004, the Commissioner argues that it is open to the Office of Fair Trading to "retract" the early decision by refusing the present application. The Commissioner relies on the Full Federal Court decision in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 as authority for the principle that the power conferred on the Minister by the relevant legislation was not spent once used but was exercisable from time to time whether or not there had been a change in the relevant facts. It is submitted that the relevant legislation differentiates between certificate holders and licence applicants. A real estate salesperson is an employee of a licensee and is subject to the supervision of the licensee: sections 11, 21 and 32 of the Act. It is submitted that the renewal of Mr Harries’ Certificate of Registration in September 2004 does not estop the Commissioner from coming to a different decision in a fresh application in 2005.

27 With respect to Mr Compton’s submission on behalf of Mr Harries on the doctrine of functus officio, Ms Aylward-Dyne submitted that Mr Compton misconstrues the doctrine. She says that the doctrine is concerned with decision-makers reconsidering by way of revoking or varying an administrative decision in relation to the same application. She referred to the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 where Mr Bhardwaj's student visa was cancelled by a delegate of the Minister for Immigration and Multi-cultural Affairs under the Migration Act 1958 (Cth). The issue was whether the Immigration Review Tribunal, which became aware of an adjournment application after affirming the cancellation decision, was able to reconsider Mr Bhardwaj's review application and make another decision. She argues that the matter before the Tribunal is distinguishable from Bhardwaj as there has been no reconsideration by the decision-maker of the decision of 29 April 2005 and there fore it is not a matter to which the doctrine of functus officio applies.

28 In reference to the evidence filed by Mr Harries the Commissioner also submitted that the Affidavits of Tony Judd sworn 12 December 2005, Lianne Pocknell sworn 12 December 2005 and Mr Harries’ own Affidavit sworn 13 December 2005 do not advance Mr Harries' case as this material is already before the Tribunal in various forms. It is also submitted that the testimonials in support of Mr Harries’ application are vague to the extent of the writer's actual knowledge of Mr Harries' offences and are heavily influenced by Mr Harries’ version of events in relation to the guilty plea of "Drive/rider state false name and address". All of the referees accept Mr Harries’ explanation in relation to the "Drive/rider/state false name or address offence". Not one testimonial addresses the issue of Mr Harries pleading guilty to the offence. None sets out knowledge of the full extent of Mr Harries' offences.

29 The Commissioner submitted that for these reasons the decision under review should be upheld.

Mr Harries’ case

30 Mr Harries attended the hearing before the Tribunal and gave evidence in support of his application. He also relies on a number of references that are in evidence in the Commissioner’s documents. Mr Tony Judd, the Chief Executive Officer of Maxpower Securities Limited, submitted an Affidavit in which he recommended Mr Harries as a fit and proper person to hold a full Real Estate Licence. Similarly Ms Lianne Pocknall, a licensed conveyancer, supported Mr Harries with an Affidavit recommended that he be approved to hold a Real Estate Licence. The Commissioner did not seek to cross-examine any of Mr Harries’ referees.

31 Mr Harries asks the Tribunal to find as a matter of law as follows:

(i) that under the doctrine of functus officio the Commissioner had already in 2004 exercised his discretion under section 14 of the Act in relation to a previous application, as to whether Mr Harries is a fit and proper person, and is now not entitled to resile from it; and

(ii) similarly, under the same doctrine the Commissioner had already in 2004 determined under section 16(2) of the Act in relation to the same previous application that for the purposes of the section that Mr Harries' offence of dishonesty should be ignored, because of the passage of time or because of the triviality of the acts giving rise to the offence. The Commissioner can not now resile from his earlier determination.

32 In the alternative Mr Harries asks that the Tribunal find on the merits that he is a fit and proper person under section 14(1) of the Act and that that the Tribunal determine under section 16(2) of the Act that Mr Harries' offence of dishonesty should be ignored because of the passage of time or because of the triviality of the acts giving rise to the offence.

33 Mr Harries does not rely on a doctrine of administrative estoppel. However, Mr Compton argues that, contrary to the Commissioner's assertion, it was not held in Kurtovic that the Departmental letter advising Mr Kurtovic that a deportation order had been revoked did not estop the Minister from reconsidering the decision to revoke. It was held that the letter provided no sufficient foundation for a plea of estoppel. Nevertheless Mr Compton conceded that Gummow J's observations indicated that there is no remedy of administrative estoppel as such. At paragraph 9, Gummow J says:

“Thus any argument that the Minister was estopped from exercising his discretion again must fail at the threshold for want of a sufficiently clear and unambiguous representation to the effect contended for.”

34 Mr Compton argues that in paragraph 18 of his judgement, Gummow J distinguished cases where the decision-maker cannot make a second decision by which he resiles from the first decision, not because he is estopped, but because the power in question has been spent by the making of the first decision. That is, Gummow J distinguished the notion of administrative estoppel from the doctrine of functus officio. At paragraph 19 Gummow J says:

"But in any given case, a discretionary power reposed by statute in the decision-maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision-maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.”

35 Ultimately Gummow J found in Kurtovic that functus officio did not apply because of the proper construction of the Migration Act 1958 (Cth).

36 In Bhardwaj Gleeson CJ stated, at paragraph 8 of his decision:

“The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?”

37 Mr Compton submitted that in the instant case, finality is a powerful consideration. Moreover, he submitted that in granting the Certificate in September 2004, the Commissioner discharged the functions committed to him under sections 14 and 16 of the Act in relation to Mr Harries' record as it stood, then and now. He says that the provisions of sections 14 and 16 are such that it is implied that the Commissioner having given full consideration to all the facts of a particular case cannot later reconsider the whole matter afresh unless there has been a change in those facts. Further, there has not been a change in the facts pertaining to Mr Harries' circumstances.

38 Mr Compton submitted that quite unlike the Migration Act 1958 (Cth), the language of sections 14 and 16 of the Act is much more constraining on the powers to be exercised. Also the purpose of the Act is to regulate real estate (and other) agents and provide consumer protection. Dealing as it does with such matters, it has to be read in a way that provides some certainty for both consumers and real estate agents.

39 He says that the language of section 16(2) of the Act implies that it is a once and for all determination with respect to any particular offence. To treat the section otherwise would allow the Commissioner to act capriciously and result in uncertainty for the business community. He submits that the operation of section 14 of the Act with respect to whether an applicant for a licence or a certificate is fit and proper is constrained in the same way that section 16(2) is constrained. Section 14(1)(b) deals with "fit and proper person" for a natural person applicant. Section 14(2)(a) and (b) deals with "fit and proper person" for corporation licences and section 14(b)(6) deals with "fit and proper person" for a certificate holder. All these subsections are in the same terms. If the Commissioner "is satisfied" that the person is a "fit and proper person" then, eligibility for the licence or certificate is met, ignoring other requirements not relevant to this case. He says that once the Commissioner has been satisfied once on a particular set of facts that a person is a fit and proper person, he cannot later resile from that decision in relation to those facts. Mr Compton submits that a proper construction of this section is one that provides some business certainty for Mr Harries. That is, when the Commissioner has exercised his power once in relation to a particular set of facts, the power has been spent in relation to those facts and the doctrine of functus officio applies. He concedes that it would be otherwise if there were new facts to consider, going to "fit and proper", however there are no new facts in Mr Harries' case since his application for his Certificate was lodged in September 2004.

40 Mr Compton argues that the Tribunal is entitled to infer that in granting Mr Harries a Certificate in September 2004, the Commissioner's delegate took into account Mr Harries' full record. He asks the Tribunal to make this inference.

41 In summary, Mr Compton argues that in September 2004, the Commissioner exercised his powers under section 14 and section 16(2) with respect to Mr Harries, in the light of Mr Harries' record, and he exercised them in Mr Harries' favour. Under the doctrine of functus officio the Commissioner has spent these powers in relation to the circumstances of Mr Harries' record at the time. Nothing has changed with respect to Mr Harries' record of offences or other relevant matters since then. Accordingly, he argues that the Commissioner cannot now resile from his decisions made in September 2004.

42 Mr Compton conceded that in Kurtovic, Gummow J concluded that unfairness is not a ground of judicial review. However, he argues that this does not preclude a Tribunal charged with the power to review on the merits from taking into account substantive unfairness, as opposed to procedural unfairness. Pursuant to section 63(2) of the Administrative Decisions Tribunal Act 1997 this Tribunal can stand in the shoes of the Administrator. Mr Compton submits that it is open to the Tribunal to consider that it would be grossly unfair to Mr Harries to now deny him a licence when nothing has changed since he was issued a Certificate in 2004.

43 Mr Compton asserts that in the event that the arguments in relation to functus officio and unfairness do not find favour with the Tribunal, Mr Harries should be treated favourably on the merits. He agrees with the Commissioner’s submissions that the three characteristics of "fit and proper" are honesty, knowledge and ability; that the decision on a licence has to be exercised bearing in mind the activities the licence holder will be engaged in; and that that the jurisdiction of the Tribunal in these matters is not to punish the offender but to protect the public.

44 He concedes that between October 2001 and March 2004 Mr Harries was convicted on a number of serious traffic offences. However, he points to the decision in Parvin where O'Connor DCJ was able to find that despite a recent bad record Mr Parvin was a fit and proper person to hold a licence or a certificate. Mr Compton asserts that Mr Parvin’s record was comparatively much worse than Mr Harries' record.

45 Mr Harries agreed that his driving offences were serious and regrettable. He indicated his contrition in relation to the offences. Four of Mr Harries' driving offences arose out of the events on 13 January 2004. He has not driven a motor vehicle since then. Mr Compton argues that this demonstrates Mr Harries' respect for the law and his rehabilitation concerning motor vehicle offences. Mr Harries attended the hearing, gave evidence and was cross-examined. He has explained the circumstances of the events of that day and indicated that the offences arose out of a domestic dispute and his concern for his domestic partner’s welfare. While Mr Compton agrees that this does not excuse Mr Harries, he says that it does go to mitigation, and these offences should not out-weight other positive evidence that Mr Harries is a fit and proper person to hold a real estate licence.

46 Mr Compton referred to the Police Facts Sheet regarding the events on 13 January 2004 and suggests that the Police were ‘gilding the lily’. Mr Harries presented an alternative account of the events of that day.

47 Mr Harries has had no complaints made about him to the Commissioner in relation to his activities as a real estate salesperson over a seven-year period. Mr Harries said in evidence he knew of no complaints and there is no evidence from the Commissioner to the contrary.

48 Mr Harries agreed that he answered in the negative concerning offences of dishonesty in his 2004 applications for an individual licence and a corporation licence, but explained that he did not know that driving matters were considered as offences in the same way as other criminal matters. He said that he had no intention of trying to deceive the Commissioner in this regard. He became acutely aware that the Commissioner regarded certain traffic offences as involving dishonesty when his 2004 applications were rejected and he was given the reasons for rejection. In his September 2004 application for renewal of his Certificate Mr Harries answered "yes" to a question concerning an offence of dishonesty. In his application for an individual licence that is the subject of these proceedings Mr Harries answered "yes" to question 10 which read:

"Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?"

49 Mr Compton suggests that the wording of the questions concerning offences in the Application Forms was changed because the previous questions were not eliciting correct responses. He submits that it is open to the Tribunal to infer this because the Commissioner presented no evidence on this point. Mr Compton asserts that it was difficult for applicants to honestly answer the question about offences of dishonesty in the 2004 forms because few people would know that traffic offences could be offences of dishonesty. He submits that the evidence shows Mr Harries did not initially know that it was the Commissioner’s view that some traffic offences could be offences of dishonesty, but once informed he answered the questions about offences of dishonesty in an appropriate and honest fashion. He had no difficulty in correctly answering the question about any offences in his April 2005 Application. Mr Compton submits that in these circumstances, Mr Harries' answers to the questions about offences of dishonesty in his 2004 Licence Applications should not be held against him under the "fit and proper" heading.

50 Mr Compton also submits that the references in support of Mr Harries' Application should weigh heavily in his favour. Mr Harries should not be punished in relation to his real estate career for his driving offences. There is no evidence to suggest that vendors or purchasers of real estate should have any fears in relation to Mr Harries. He has had a successful real estate career with no complaints made to the Commissioner. There is no need to protect the public from him. He has the knowledge, ability and the requisite honesty to be granted a real estate agents licence. The circumstances surrounding his one offence of dishonesty demonstrate no dishonest intention on Mr Harries' part. Mr Compton asserts that the weight of the evidence points to Mr Harries being a fit and proper person to be issued with a full real estate agent's licence.

51 While Mr Compton would contend that ‘driver/rider state false name or address’ is not an offence of dishonesty, he concedes that this Tribunal has already held that it is an offence of dishonesty. However, he submits that either because of the passage of time or because of the triviality of Mr Harries' acts giving rise to the offence of driver/rider state false name or address, this Tribunal should determine that the offence should be ignored pursuant to section 16(2) of the Act. The conviction was recorded on 2 March 2004, in relation to the events that occurred on 13 January 2004. It is now two years since the offence. He submits that given the nature of the offence and that it was a one-off for Mr Harries, there have been no offences of any kind since and no other offences of dishonesty in his record, this is sufficient passage of time to ignore the offence.

52 Mr Harries explained that he pleaded guilty to the offence of driver/rider state false name or address because he was advised to do so by his then legal counsel so as not to irritate the Magistrate in relation to his PCA offences. At the time Mr Harries had not seen the Police Facts Sheet. Mr Harries maintained that he had given his correct name and address to the Police. He said that he had told them his address was 20A Fletcher Street and that he had offered to show the Police his address because he was at the time only a short distance from it. The Police claim he gave his address as ‘20 Fletcher Street’. Number 20 had three townhouses, 20A, 20B, and 20C and later on the same night the Police found Mr Harries at Number 20A. Mr Compton argues that on this basis the offence of driver/rider state false name or address should be ignored for the purposes of section 16(2) of the Act. However, if the Tribunal is not minded to ignore the offence, then he submits that in all the circumstances surrounding the offence, as outlined above, that sufficient time has passed to ignore the offence for the purposes of section 16(2) of the Act.

53 Accordingly, he submits that the Tribunal should set aside the decisions of the Commissioner with respect to Mr Harries and in substitution make the decision that Mr Harries be granted a real estate agents licence under the Act.

Findings and Reasons

54 I do not accept Mr Compton’s argument with respect to the doctrine of functus officio. I agree with the Commissioner’s view that the legislation differentiates between certificate holders and licensees. In my view this differentiation warrants the application of more rigorous approach to the assessment of a licence application in comparison to that of the renewal of Mr Harries’ Certificate of Registration. The Commissioner is not estopped from coming to a different decision on a fresh licence application in 2005 because of the renewal of a Certificate of Registration in September 2004.

55 Pursuant to section 14 of the Act a person is eligible to hold a licence only if the Commissioner is satisfied that they are a fit and proper person to hold a licence. Chief Justice Mason in Australian Broadcasting Tribunal v Bond at [63] said that:

"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."

56 A number of factors are relevant and should be taken into account in determining whether a person is fit and proper to hold a licence. Those factors include the nature, seriousness, and frequency of the offences for which the person has been found guilty or convicted; the nature, seriousness, and frequency of any complaints made against them; and the likelihood that the person will re-offend or be the subject of further complaints.

57 Mr Harries has an extremely poor driving record. He has been convicted of three mid range PCA offences, negligent driving, reckless driving and driving whilst disqualified. These offences continued over a period of several years from 2001. His last convictions were for driving whilst disqualified, mid range PCA, proceeding through a red/yellow traffic light and driver state false name or address on 13 January 2004.

58 In my view, the majority of the offences to which these convictions relate can be described as serious offences. These convictions suggest that Mr Harries has held contempt for laws relating to the regulation of traffic. Nevertheless, it does not seem that this attitude has impacted on his ability to operate fairly within the context of the real estate industry. The evidence suggests that he has never been the subject of any complaints to the Commissioner and that others in the industry apparently hold him in high regard. I accept Mr Harries’ evidence that he failed to complete the application forms correctly or to disclose his conviction due to a misunderstanding. I do not consider that this represents any dishonesty on his part.

59 The evidence suggests that Mr Harries has not driven a motor vehicle since 13 January 2004 nor has he come to the attention of the police for any other reason since that date. In my view insufficient time has passed to be confident that he will no longer commit traffic offences however I do not think that there is a serious risk to the public if he were to continue to work in the real estate industry. After considering all the circumstances of this matter I am satisfied that Mr Harries is a fit and proper person to hold a licence.

60 Nevertheless, pursuant to section 16 of the Act a person is a disqualified person for the purposes of the Act if the person has a conviction for an offence involving dishonesty that was recorded in the last 10 years, unless the Commissioner has determined that the offence should be ignored because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. There is no dispute as to the nature of Mr Harries’ conviction. As noted above, there are several decisions of this Tribunal that have found this offence to be captured by section 16. It is not necessary for dishonesty to be a legal component or requirement of the offence if dishonesty is involved in the offence in a way which most people would understand the term. It has been accepted that "Driver/rider/states false name or address" falls within this provision.

61 As noted above, there are several decisions of this Tribunal that have found that "Driver/rider/states false name or address" is not a trivial offence. Mr Harries has presented evidence with respect to the circumstances in which he was charged with the offence. I agree with Ms Aylward-Dyne that this is not the appropriate forum for such matters to be tested. This is not a forum in which matters that are rightly pursued in the Local Court can be revisited.

62 However, I note that Mr Harries pleaded guilty to the offence of "Driver/rider/states false name or address". I accept that he did not see the Police Fact Sheet in relation to the incident prior to the Tribunal hearing. It is apparent from the Police Fact Sheet that is in evidence that the offence to which he pleaded guilty was stating that his address was ‘20 Fletcher Street’ when in fact his address was ‘20A Fletcher Street’.

63 While I do not accept that providing a false address to the police can be considered to be a trivial offence, it is my view that the offence should be ignored because of a combination of the time that has passed since the offence was committed and because of the triviality of omissions that gave rise to the offence. In the circumstances of this matter the omission was failure to provide the correct address of ‘20A Fletcher Street’ in circumstances where there was no ‘20 Fletcher Street’.

64 It is therefore my view that the correct and preferable decision in this matter is that the Commissioner’s decisions that Mr Harries is a disqualified person and that he is not a fit and proper person to hold the licence should be set aside.

Order

1. The decision under review is set aside

2. In substitution the decision is made that Mr Harries’ application for a real estate agents licence is granted.