Kerkham v Director General, Department of Fair Trading

[2002] NSWADT 63

CITATION:	Kerkham -v- Director General, Department of Fair Trading [2002] NSWADT 63
DIVISION:	General Division
PARTIES:	APPLICANT Richard Ernest Kerkham RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013163
HEARING DATES:	15/04/2002
SUBMISSIONS CLOSED:	04/15/2002
DATE OF DECISION:	04/26/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Conveyancer - grant of licence - Conveyancers Licencing Act 1995 - Conveyancer - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Conveyancers Licensing Act 1995 Legal Profession Act 1987
CASES CITED:	Doyle -v- Commissioner of Police, New South Police Service [2000] NSWADTAP 1 (15 February 2000) Pollard v Commonwealth DPP (1992) 28 NSWLR 659 Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861 (2 October 2001)
REPRESENTATION:	APPLICANT C Dwyer, barrister RESPONDENT J Coss, solicitor
ORDERS:	1. The decision of the Director General to refuse the applicant’s application for a conveyancers licence is set aside; 2. In substitution for that decision, a decision is made to grant the applicant a conveyancers licence.

Introduction
1 The issue in this case is whether Mr Kerkham should be granted a licence under s 9 of the Conveyancers Licensing Act 1995 (the Act). On 21 October 1994 Mr Kerkham was convicted of four breaches of s 48B(1) and three breaches of s 48E(2) of the Legal Profession Act 1987. These breaches related to acting as a solicitor or barrister without a current practicing certificate and doing general legal work for a fee when he was not a barrister or solicitor.

2 On 29 June 2001, Mr Kerkham applied for a review of the decision of the Director General, Department of Fair Trading to refuse his application.

Relevant legislation
3 A person can make an application for a licence under section 9 of the Act. Section 10 of the Act provides that a licence must not be granted unless the applicant is qualified to be granted a licence under section 7 of the Act. Section 7(1)(c) states that “To be qualified to be granted a licence a person must satisfy the Director-General that he or she is not a disqualified person.” “Disqualified person” is defined in s 5(1)(c) to include a person who “has been convicted in New South Wales or elsewhere of an offence involving dishonesty.” Under s 5(3) of the Act:

On an appeal against a decision of the Director-General refusing to grant a licence to a person because the person is a disqualified person under subsection (1) (c), the Administrative Decisions Tribunal may determine that the fact that the person has committed the offence concerned 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.
4 This provision gives the Tribunal a discretion to ignore the offence in certain circumstances even though the Director-General has no such discretion.

5 On 21 October 1997 Mr Kerkham pleaded guilty to and was convicted of four breaches of s 48B(1) and three breaches of s 48E(2) of the Legal Profession Act 1987. Section 48B states, in part, that

(1) A natural person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate.
(2) This section does not prevent a licence conveyancer from carrying out conveyancing work in accordance with a licence in force under the Conveyancers Licensing Act 1995.
6 Section 49E states, in part, that:
(2) A person must not directly or indirectly do any general legal work, or any probate work, for a fee unless the person is a barrister or solicitor or unless the person is an incorporated legal practice and the work is done on its behalf by a barrister or solicitor.
(4) This section does not apply to:
(d) a licensed conveyancer acting in accordance with a licence in force under the Conveyancers Licensing Act 1995 .
7 Mr Kerkham was fined $350 on each matter together with $51 court costs and counsel’s fees of $500.

Jurisdiction
8 The Tribunal has jurisdiction to hear this matter pursuant to s 14(a) of the Act. That section allows a person to apply to the Tribunal for a review of a decision of the Director-General refusing to grant a licence to the person.

Issues
9 Based on these legislative provisions, the issues in this case are as follows:

· Has Mr Kerkham been convicted of an offence involving dishonesty?
· If so, should that offence 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?
Has Mr Kerkham been convicted of an “offence involving dishonesty”?
10 The meaning of the words “an offence involving fraud, dishonesty or stealing” was discussed by the Appeal Panel of this Tribunal in Doyle -v- Commissioner of Police, New South Police Service [2000] NSWADTAP 1 (15 February 2000). The relevant parts of that decision ([11], [12] and [16]) are set out below:
11 Several statutes have implications for people convicted of offences involving fraud or dishonesty. These include s 227 (2)(b) of the Companies Code (NSW) concerning directors of companies and s 155(3B)(a) of the Bankruptcy Act 1966 concerning trustees. In Pollard v Commonwealth DPP (1992) 28 NSWLR 659 the Supreme Court was considering whether a person convicted under s 178BB of the Crimes Act had been convicted "of any offence involving fraud or dishonesty" pursuant to s 227(2)(b) of the Companies Code (NSW). Abadee J decided that where a person has been convicted under s 178BB, that person has committed an offence "involving fraud or dishonesty".

12 In Pollard, counsel for the plaintiff argued that an offence "involving" fraud or dishonesty means an offence "of" fraud or dishonesty. In rejecting this view, Abadee J stated that:

The word "involving" appears to have been deliberately inserted in contradistinction to the insertion of the word "of". Further, the argument fails to give the section its ordinary meaning, which in my view, leads to no ambiguity or uncertainty. It appears to me that there is a clear difference between an offence "involving" fraud or dishonesty, and an offence “of" fraud or dishonesty.
16 Abadee J in Pollard did not accept that "involved" meant that fraud or dishonesty were legal requirements of the offence. In particular, he stated at p 669A and B that:
"If a person knows he is making a false statement, that is a form of dishonesty. To do so with reckless disregard as to whether it is true or false appears to me capable of equally being regarded as dishonest. Indeed, someone who is prepared or willing to seek a financial advantage by making a statement without regard to whether such is true or false, without regard to what the true position might be, could well be thought to be acting dishonestly."
11 This interpretation of an offence “involving dishonesty” has now been supported by the Supreme Court in Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861 (2 October 2001). That case involved an appeal pursuant to s 90D(3)(a) of the Legal Profession Act 1987 (NSW) against a decision of the Council of the Law Society wholly disallowing the plaintiff's claim upon the Solicitors' Fidelity Fund. In the course of the decision, Bell J interpreted the phrase “offence involving dishonesty” in s 79A(2) of the Legal Profession Act 1987. Bell J stated at [32], that:
The conviction of which s 79A(2)(a) speaks is one for a crime or offence involving dishonesty. It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry . 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 and offences where property or some advantage is gained through indirect means such as false pretences, conspiracy to defraud and the like. Glanville Williams notes that while the great majority of offences of dishonesty relate to property it is not true to say that all do; Textbook of Criminal Law, 2nd Ed, Stevens, Lond. 1983, at p 699. He cites as an illustration of an offence of dishonesty not involving property the commission of perjury in order to avoid going to prison. (Emphasis added.)
12 Based on these decision, the question the Tribunal must ask itself is whether the offences in s 48B(1) and s 48E(2) of the Legal Profession Act 1987 are offences involving dishonesty, without further inquiry . “Without further inquiry” means that the Tribunal cannot look behind the conviction to determine whether the particular acts or omissions of Mr Kerkham involved dishonesty. The Tribunal is confined to looking at the terms of the offences themselves and determining whether those offences “involve dishonesty.” For this reason I have not taken into account the evidence about the circumstances of the offence.

13 While there is no need for dishonesty to be a legal element or requirement of an offence for the offence to "involve" dishonesty, dishonesty in its ordinary sense must be involved in the offence. "Dishonesty" is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud."

14 Mr Dwyer, counsel for Mr Kerkham, submitted, and Mr Coss for the Director General agreed, that the offences in s 48B and s 48E are “strict liability” offences. A person “must not” engage in particular activities. If the court finds that the person has engaged in those activities, then no further inquiry is necessary as to the knowledge, belief or intention of that person. Contrary to Mr Coss’ submission, the fact that Mr Kerkham has been convicted of certain criminal offences does not mean that those offences “involve dishonesty”.

15 All that the offences in s 48B(1) and s 48E(2) require is that a person must not do certain things unless that person has a certain certificate or licence. If a person does those things without the requisite certificate or licence, he or she will be guilty of an offence. Dishonesty is not an element of either offence, nor is dishonesty involved in the offence in any way. The offences are strict liability offences which do not take into account whether or not the person has acted dishonestly.

16 Based on this reasoning, my conclusion is that the offences in s 48B(1) and s 48E(2) of the Legal Profession Act 1987 are not offences “involving dishonesty”. This conclusion means that the Tribunal does not need to consider the second issue of whether the offences 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. Mr Coss agreed that there was no other barrier to Mr Kerkham being issued with a conveyancers licence.

Orders

1. The decision of the Director General to refuse the applicant’s application for a conveyancers licence is set aside.
2. In substitution for that decision, a decision is made to grant the applicant a conveyancers licence.