Hawa v Commissioner for Fair Trading
[2025] NSWCATAD 268
•31 July 2025
|
New South Wales |
Case Name: | Hawa v Commissioner for Fair Trading |
Medium Neutral Citation: | [2025] NSWCATAD 268 |
Hearing Date(s): | 31 July 2025 |
Date of Orders: | 31 July 2025 |
Decision Date: | 31 July 2025 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | S Montgomery, Senior Member |
Decision: | (1) The decision under review is set aside |
Catchwords: | Administrative Law – Application for certificate of registration as an assistant real estate agent - Fit and proper person. |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 |
Cases Cited: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
Category: | Principal judgment |
Parties: | Charable Hawa (Applicant) |
Representation: | Solicitors: |
File Number(s): | 2025/00157842 |
Publication Restriction: | Nil |
REASONS FOR DECISION
Introduction
This is an application by Mr Charable Hawa (“the Applicant”) for review of a decision by a delegate of the Commissioner for Fair Trading (“the Respondent”) to refuse the Applicant’s application for a certificate of registration - assistant agent under the Property and Stock Agents Act 2002 (“the Act”).
The Respondent refused the application on the basis that the Applicant is not a fit and proper person for the role of assistant agent under the Act. That refusal was affirmed on internal review.
There is no suggestion that the Applicant does not possess the necessary skills and qualifications to hold the registration under the Act. The delegate formed the view that the Applicant was not a fit and proper person to hold a certificate of registration, in accordance with section 14(3)(b) of the Act because of his recorded offences.
The Applicant has applied to the Tribunal for external review of the Respondent's decision under section 55 of the Administrative Decisions Review Act 1997 (“the ADR Act”).
Background
The Applicant’s criminal history is not in dispute. The internal review determination set out the following information in regard to offences recorded against him:
| Court and Date Court and Date | Offence | Penalty |
| 03/04/2024 Downing Centre | Supply prohibited drug >indictable & <commercial quantity — T1 | Community Correction Order: 2 years Commencing 03/04/2024 Concluding 02/04/2026 Continue to participate in AA and counselling, subject to supervision by community corrections. Supervision 2 years commencing 03/04/2024 concluding 02/04/2026 supervised by community corrections service |
| Possess prohibited drug | Fine: $300 | |
| 30/01/2024 Sutherland Court | Drive vehicle, illicit drug present in blood etc — 2nd + offence | Fine: $300 Disqualification — Driver: 6 Months Commencing 30/01/2024 |
| 21/11/2023 Sutherland Court | Drive while licence application refused — 2nd + offence | Fine: $300 Disqualification — Driver: 6 Months Commencing 21/11/2023 |
| 14/06/2023 Downing Centre | Possess prohibited drug Supply prohibited drug >indictable & <commercial quantity — T1 | Adjourned s11 |
| 09/08/2022 Sutherland Court | Drive vehicle, illicit drug present in blood etc — 2nd offence | Fine: $800 Disqualification — Driver: 7 Months Commencing 09/08/2022 |
| 25/11/2020 Downing Centre | Possess prohibited drug | Fine: $440 |
| 17/09/2020 Campbelltown Court | Drive vehicle, illicit drug present in blood etc — 1st offence | Fine: $500 Disqualification — Driver: 3 Months Commencing 17/09/2020 |
| 06/08/2020 | Possess prohibited drug | Fine: $150 |
| 02/04/2014 | Possess prohibited drug | Bond s9: 6 Months |
| 15/05/2012 Newtown Court | Possess prohibited drug | Fine: $250 Drug to be destroyed |
| 30/10/2007 Sydney District Court | Supply a prohibited drug Goods in personal custody suspected being stolen (Not M/V) | Conviction confirmed: In lieu bond S9: 9 Months (Dc 90011761) Court case reference number 07/12/1407 |
| 04/10/2007 Sutherland Court | Goods in personal custody suspected being stolen (Not M/V) | Imprisonment: 3 Months commencing 04/10/2007 severity appeal with stay lodged (Eeco 4113) |
| Possess prohibited drug | Bond S9: 2 years supv NSW prob service To accept probation service supervision for as Long as considered necessary, obey all | |
| reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the probation office within 7 days after being released from gaol. Drug to be destroyed | ||
| Supply prohibited drug | Imprisonment: 6 Months c0mmenc1ng04/10/2007 severity appeal with stay lodged (Eeco 4113) | |
| 06/02/2006 Burwood Court | Drive on road etc while licence suspended | Bond $10: 12 Months |
| 01/02/2005 | Possess prohibited drug | Fine: $1,000 Drug to be destroyed |
| 01/04/2004 Sutherland Children's Court | Drive on road etc while licence suspended | Fine: $200 Costs — Court: $61 |
| 6/10/2002 Sutherland Children's Court | Supply a prohibited drug (2 Counts) | Fine: $200 Bond S33(1)(B): 12 Months Supv Ordered 3. Not associate with co-offender or Walid, Khalid, Ahmed Amd Mohammed Abbas. Drug to be destroyed |
The Applicant does not dispute this record. However, he stated that he has taken substantial steps to learn from these experiences, transform his life, and establish a solid foundation for his future.
The Respondent notes that the Applicant is currently subject to a Community Correction Order (“CCO”) which will conclude on 2 April 2026. The Respondent submits that the Tribunal cannot be satisfied that sufficient time has passed to demonstrate that the Applicant has turned a corner and is not at risk of reoffending or relapsing into drug use. Accordingly, the Respondent opposes the granting of the Certificate of Registration.
The issue
The issue before the Tribunal is whether the correct and preferable decision is to grant the application. This requires consideration of whether the Applicant is a fit and proper person to hold a certificate of registration as an assistant agent.
The Tribunal’s approach
In NSW the Act regulates the carrying on of business in the real estate industry under a licence or certificate of registration. Under section 27 of the Act the Tribunal has jurisdiction to review a decision of the Respondent to refuse to grant a certificate of registration. This jurisdiction is exercised under 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.
Relevant legislation
A person cannot act as an assistant agent, unless they hold a certificate of registration. Assistant agents must be employed by a licensed real estate agent and hold a certificate of registration: sections 10(1) and 11(1) of the Act.
Section 14 of the Act sets out the eligibility criteria to hold a licence or certificate of registration. Section 14 (3) provides:
(3) A person is eligible to hold a certificate of registration only if the [Respondent] 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.
Section 19 of the Act requires the Secretary to refuse to grant an application unless the applicant is eligible to be granted the certificate of registration concerned.
It is not in dispute that the Applicant has met the age and qualification requirements in subsections 14(1)(a) and (c) of the Act and it is not argued that the Applicant is a disqualified person: subsection 14(1)(d) of the Act. However, the Respondent contends that the Applicant is not a fit and proper person to hold a certificate of registration: subsection 14(1)(b) of the Act.
Fit and proper person
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."
Material before the Tribunal
The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. This material includes records relating to the Applicant’s application for a certificate and material related to his offences. The Respondent’s solicitor, Ms Maguire, also provided written and oral submissions.
The Applicant relies on his own evidence and submissions. He also relies on a number of additional documents, including:
A letter of support from Psychologist Wai Lun (William) Fu;
Oral evidence from Mr Maurice Maroon
Oral evidence from Mr John Youssif.
A number of Character References;
Certificates showing completion of relevant formal qualifications;
The Applicant attended the hearing, gave evidence, and was cross-examined. Mr Maroon and Mr Youssif also attended the hearing, gave evidence, and were cross-examined.
The Respondent’s Case
The Respondent submits that the correct and preferable decision is to affirm the decision to refuse the application as there is concern regarding the Applicant's fitness and propriety to hold a certificate of registration. This position is largely related to the Applicant's criminal history and the fact that he is still subject to supervision because of the CCO.
As noted, Ms Maguire provided both written and oral submissions. She submitted:
The Respondent submits that the application should be dismissed on the ground that the criminal history of the Applicant renders him not a fit and proper person to be issued with a Certificate of Registration as an assistant agent.
In the assessment of fitness and propriety, criminal convictions can be of great importance, especially where the activity to be undertaken by the Applicant should he be granted a Certificate of Registration requires public confidence and reliance on the propriety and integrity of the licensed person. Thus, the nature of the industry in which the person concerned wishes to operate affects the consideration of whether the person is a 'fit and proper person' to operate in that industry.
The Applicant's significant criminal history is an indisputable fact in these proceedings. Its existence cannot be the subject of challenge. The Respondent submits that the most relevant criminal history for the purposes of these proceedings are the offences the Applicant was found guilty of in the last ten years …
The Respondent submits that the nature of the offences for which the Applicant has been previously sentenced, which all pertain to the use and supply of illicit drugs, render the Applicant a person who is not fit and proper to hold the relevant Certificate of Registration. Whilst the Respondent submits that the offences committed in the last ten years are the most pertinent in these proceedings, it is of note that the offending engaged in by the Applicant from a young age is remarkably similar to the more recent offending. The Tribunal would not accept the chance of reoffending is low because the Applicant's multiple similar drug related offences within the past 20 years demonstrate behaviour that confirms the Applicant's continued pattern of re-offending with a tendency to drug use.
Given the fact that the Applicant is currently subject to a Community Correction Order which requires him to continue with his rehabilitation that, if successfully completed, will conclude on 2 April 2026, the Respondent submits that the Tribunal cannot be satisfied that sufficient time has passed to demonstrate that the Applicant has turned a corner and is not at risk of reoffending or relapsing into drug use. Notwithstanding the rehabilitative efforts engaged in by the Applicant, evidently, in imposing the sentence that it did on 3 April 2024, the Local Court considered that the Applicant required further time to complete his rehabilitation and that a period of two years was appropriate for this purpose. Thus, the Respondent submits that the Applicant requires further time to demonstrate good behaviour, rehabilitation, and positive engagement in the community before he can be granted a Certificate of Registration in a profession that requires its members to be fit and proper persons.
Furthermore, the Respondent submits that the Tribunal would not be satisfied that the Applicant has provided sufficient evidence in relation to the steps that he has taken to ensure that he does not reoffend.
The Respondent submits that at this stage the Applicant's criminal history should preclude him from being granted the Certificate of Registration on the grounds that he is not a fit and proper person. The conclusion of, and evidence of successful engagement with, his Community Correction Order in April next year may assist in demonstrating that the Applicant has been of good behaviour and could go some way to assisting him in a future application.
Ms Maguire’s oral submissions reflected this position.
The Respondent opposes the granting of the Certificate of Registration and seeks that the decision under review be affirmed.
The Applicant's Case
The Applicant submits that the correct and preferable decision is to grant the application. He does not dispute that the CCO remains in place until April 2026. However, he stated that the supervision requirement of the CCO was suspended after the first week. Nevertheless, he continues seeing his psychologist weekly and sometimes twice weekly. He also attends weekly meetings of Narcotics Anonymous.
The Applicant provided a statement, and he also gave oral evidence and was cross examined. His evidence is that:
He has been working with Mr Maurice Maroon for about a year. He started on a work experience program for about 4 hours per week which continued for about 4 months. After that he was employed part-time, for 20 hours per week, and in that time, he was able to learn about the business. He was restricted in what role he could play because he did not hold a certificate.
He has acknowledged past mistakes and challenges and is dedicated to overcoming past difficulties, fostering resilience, and creating a stable environment for himself.
He has taken substantial steps to learn from those experiences, transform his life, and establish a solid foundation for his future career.
He has been seeing a psychologist regularly since 2020, after being referred by his GP. This referral came about because of a decline in his mental health as a result of a work injury and his inability to work.
He is commitment to becoming a trustworthy and ethically grounded professional in the real estate industry.
Following his last offence, in January 2022, he determined to turn his life around.
In October 2023, he made a decisive acknowledgment of the need for change and sought help by entering treatment programs. He entered a 30 day detox program at South Pacific Private followed by a 12 week program at Glebe House.
He engaged in comprehensive therapy and ongoing support and continued his treatment and support efforts. He has maintained sobriety and has not encountered any further Legal issues.
He has prioritized his professional development by completing Counselling and Addiction Support Worker qualification.
He has become involved in his community. He has coached junior rugby League and actively participates in Narcotics Anonymous, attending regular meetings, engaging with a supportive home group, and serving as meetings secretary
He is committed to maintaining his sobriety, accountability, and personal integrity.
His decision to pursue a career in real estate is driven by a genuine passion for the industry and a clear understanding of its core values—honesty, transparency, and dedication. He is committed to upholding those values.
His current employer has not only supported his ambitions but also provided him with an opportunity to transition into the real estate profession.
He believes that he has become a trustworthy person. He referred to the trust that has been placed in him not just from his employer but also from the football club where he coaches a juniors team.
If the certificate is granted, the Applicant intends to continue to work with his current employer. However, he gave an undertaking that he will advise the Respondent if he changes his employment.
Mr Wai Lun Fu
Mr Fu is a Registered Psychologist and has known the Applicant as his psychologist for approximately 4.5 years. He provided a reference in support of the Applicant’s application. He is aware of the Applicant’s criminal history and in that regard, he noted that the Applicant has demonstrated insight and accountability. He stated that since mid-2022 the Applicant began to turn his life around and demonstrated insight, motivation, and determination to change his life. He committed to:
Accepting responsibility in relation to his criminal history;
Beating his addiction through a combination of detox, admitting to a drug rehabilitation program, ongoing attendance to AA/DA to maintain being sober;
Weekly/fortnightly psychological counselling and therapy;
Mr Fu stated that the Applicant is a reformed man who is showing responsibility, accountability, and maturity about his troubled past. He has been sober and free from substances since mid-2023 and he has played an active role in his children's lives through participation in their education, health needs, as well as extra-curriculars. He has demonstrated insight and accountability to his problematic past. He has demonstrated a consistent determination to continually better himself, with a commitment to being a positive person as well as a positive influence on those around him.
Mr Maurice Maroon
Mr Maroon provided a character reference for the Applicant, and he also gave oral evidence and was cross examined. His evidence is that:
The Applicant had been undertaking work experience and progressed to permanent part time employment with his agency from August 2024.
He is aware of the Applicant's criminal history. The Applicant was forthcoming about these matters before he commenced work with the agency.
From the moment he joined the team, the Applicant has made a significant and positive impact, displaying exceptional energy, enthusiasm, and a proactive attitude. His support for colleagues and clients has been unparalleled. His dedication and drive are truly inspiring, and his contributions have fostered a more dynamic and productive team environment.
The Applicant has a strong understanding of the real estate industry. He has outstanding interpersonal skills, his communication abilities are excellent, and he possesses a warm, empathetic demeanour that is a key asset in building client relationships and achieving success.
The Applicant is also dedicated to his personal development and attends weekly AA meetings as part of his rehabilitation efforts. He approaches both his professional and personal growth with great seriousness.
He has offered the Applicant a position in the agency and supports his application for the Certificate of Registration.
Mr Maroon also gave oral evidence consistent with the views expressed in his written character reference. In his oral evidence he expanded on the points made in his character reference. He particularly emphasised the changes that the Applicant has made in his life and the focus which the Applicant has on the future. He believes that if the Certificate of Registration is granted, both the Applicant and Mr Maroon’s agency will be significantly changed for the better.
Mr John Youssif
Mr Youssif is a licences agent under the Act. He confirmed the views expressed by Mr Maroon. He has seen the Applicant evolve from the person who he first met to where he is today. He is aware that the Applicant made a decision to take control of his life and to pursue a career in real estate. He believes that the Applicant’s drive and skills and personal character warrant the grant of the Certificate of Registration.
Consideration
The Tribunal must be satisfied that the Applicant is fit to carry out the responsibilities of an assistant agent under Act. This is a matter of judgement, taking account of the Applicant’s criminal history and his present circumstances and reputation: see Grenfell v Director-General of the Department of Finance and Services [2013] NSWADT 57 at paragraph [15].
It is not in dispute that the Applicant’s criminal record is significant and is a relevant consideration in regard to whether he should be regarded as a fit and proper person to be granted a Certificate of Registration. The fact that his Community Correction Order remains in place until April next year is also a relevant consideration.
In this case, it is necessary to balance those issues with the evidence presented before the Tribunal. This evidence is relevant to consideration of whether the Applicant has reflected on his offending and has made practical changes to transform his life.
As noted above, the Applicant’s psychologist and his current employer have both expressed firm opinions in relation to his suitability for the role that he wishes to play in the industry. They have expressed trust and confidence his potential to succeed ethically and professionally.
A criminal record is not a permanent bar to a finding that an applicant is of good repute and a fit and proper person to hold an authority. A history of convictions can create a presumption, among those who know of that history, that the person has a bad reputation. However, the person may present evidence to contradict that assumption and establish that they have a good reputation. The Tribunal is to balance the positive and negative aspects of the person’s record, including evidence of contrition and of a determination to make a new start: see discussion in Bryant v Transport for New South Wales [2024] NSWCATOD 94 from paragraph [18].
On the evidence before me I am satisfied that the Applicant has a good reputation within his workplace and in the wider community. This is evident from not only the evidence from Mr Maroon and Mr Youssif but also the reference provided by Ms Kylie Bonassi, the Administrator of the football club where the Applicant coaches. Ms Bonassi is aware of the Applicant’s background and nevertheless vouches for his good character. She referred to him as a patient, kind and good-natured person who is honest and trustworthy.
It is now several years since the Applicant’s last offence in January 2022. The conviction in relation to that offence was recorded two years ago and he remains subject to a CCO until April 2026. In the circumstances of this matter, I do not consider that the fact that the CCO remains in place should prevent the granting of the Certificate of Registration.
The evidence suggests that the Applicant has demonstrated remorse for his misconduct. He has determined to make a new start embarked on a journey of personal recovery, and demonstrated ongoing involvement in community service, dedication to professional development, and a sincere desire to serve clients ethically. In my view this demonstrates his readiness for the role that he wishes to take.
The evidence suggests that he is aware of the responsibilities and standards required to be the holder of a Certificate of Registration under the Act. I am satisfied that he possesses the necessary skills, knowledge, and personal qualities needed to meet those responsibilities and standards.
I am satisfied that he is a fit and proper person for the role of assistant agent under the Act. Accordingly, the correct and preferable decision is to grant the Certificate of Registration that he is seeking.
Orders
(1)The decision under review is set aside.
(2)The decision is made that the application by Charable Hawa for a Certificate of Registration - Assistant Agent under the Property and Stock Agents Act 2002 is granted.
**********
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
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
0
8
3