Locaputo v Director General, Department of Fair Trading

[2002] NSWADT 238

CITATION:	Locaputo v Director General, Department of Fair Trading [2002] NSWADT 238
DIVISION:	General Division
PARTIES:	APPLICANT Rubens Locaputo RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013300
HEARING DATES:	26/06/02-28/06/02
SUBMISSIONS CLOSED:	06/28/2002
DATE OF DECISION:	11/19/2002
BEFORE:	Hennessy N - Magistrate (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
CASES CITED:	PJ Vickers v Conveyancers Licensing Committee (unreported Supreme Court of NSW, 27 July 1995)
REPRESENTATION:	T Hall, counsel F Campora, solicitor
ORDERS:	1. The Director General's decision to refuse Mr Locaputo's application for a conveyancers licence is set aside. In substitution for that decision a decision is made to grant a conveyancers licence to Mr Locaputo.

1 Mr Locaputo applied to the Tribunal for a review of a decision to refuse his application for a conveyancers licence. The ground that the Director General, Department of Fair Trading (the Director General) relied on in refusing the application was that Mr Locaputo did not have two years relevant practical training and conveyancing experience under the supervision of a licensed conveyancer or solicitor. Mr Locaputo claimed that he did have the requisite experience.

Jurisdiction

2 The Tribunal has jurisdiction to hear this application pursuant to s 14(a) of the Conveyancers Licensing Act 1995 (the Act) which states that “A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions: a decision of the Director-General refusing to grant a licence to the person.”

Background

3 This matter has a detailed history which I will recount briefly. Mr Locaputo and Mr Garcia are accountants who were in practice together under the name of Locaputo Garcia and Co. Mr Daniel Delfino and Mr Rubens Delfino are brothers who were in legal practice together trading under the name of Delfino and Delfino. On 1 January 1999 Mr Locaputo and Mr Garcia jointly purchased Rubens Delfino’s share of the business and formed a multi-disciplinary partnership comprising Daniel Delfino, Rubens Locaputo and Daniel Garcia. Daniel Delfino was the only partner with a practising certificate under the Legal Profession Act 1987. Rubens Delfino remained employed by the firm as a consultant on a voluntary basis for 6 months and then part-time until the partnership was dissolved on 8 June 2001.

4 Between 1 June 2000 and 8 January 2001 the relationships between Daniel Delfino and the other two partners began to deteriorate. Daniel Delfino and Mr Locaputo had been good friends but their relationship soured and by April 2001 the three partners had agreed to dissolve the partnership. At the date of the hearing, proceedings in relation to the dissolution of the partnership were on foot in the Supreme Court. Mr Locaputo and Mr Garcia decided to set up a new business together in Parramatta.

Application to Director General

5 Mr Locaputo’s application to the Director General. On 10 August 2001 the Director General received an application from Mr Locaputo for a conveyancers licence so that he could carry on business as a sole trader. In answer to the question concerning practical training and experience under the supervision of a licensed conveyancer or solicitor, Mr Locaputo indicated that he had two and half years practical experience with Delfino and Delfino, solicitors. He ticked a box on the form which confirmed that he had attached the “supervising conveyancer’s/supervising solicitor’s confirmation of 2 years practical training and experience and his/her outline of the duties you performed and the responsibilities you undertook”. The attachment which related to this item was a letter signed by Daniel Garcia, a non-legal partner of Delfino and Delfino, dated 6 June 2001 setting out Mr Locaputo’s experience. Mr Garcia is not a licensed conveyancer or solicitor and the Director General took the view that he could not attest to Mr Locaputo’s experience.

6 When questioned about why he ticked the box when he knew that Mr Garcia did not have the necessary qualifications, Mr Locaputo said that he knew that Daniel Delfino would not support his application because of the circumstances in which the partnership had dissolved and the proceedings pending in the Supreme Court. When he realised that Daniel Delfino was not going to write a letter of support, and that the partnership was to be dissolved, Mr Locaputo asked Mr Garcia to write the letter. Mr Locaputo said that it was clear from the letterhead that Mr Garcia was an accountant and not a solicitor. In addition, he said that there was no room on the form to give an explanation.

7 Daniel Delfino’s objection to the application. Daniel Delfino wrote two letters to the Director General dated 30 August 2001 and 17 September 2001, objecting to Mr Locaputo’s application. In those letters Daniel Delfino alleged that during the period July 2000 to August 2000 while he was overseas, Mr Locaputo had falsified his signature on s 66W certificates.

8 Under s 66W of the Conveyancing Act 1919 a solicitor or licenced conveyancer can sign a certificate to give to the vendor which attests to the fact that the purchaser has waived his or rights to the normal 5 day “cooling off” period after signing the contract. The certificate states that the solicitor or licenced conveyancer has explained to the purchaser the effect of the contract, the nature of the certificate and the effect of giving the certificate to the vendor.

9 The 17 September 2001 letter from Daniel Delfino enclosed a copy of a sales advice form which he had received from a vendor in which the purchaser’s solicitors are described as “Locaputo-Garcia solicitors”. Locaputo-Garcia are not solicitors and Daniel Delfino alleged that Mr Locaputo misled clients by passing himself off as a solicitor. Mr Daniel Delfino also stated that Mr Garcia was not a solicitor and could not attest to Mr Locaputo’s experience in conducting conveyancing matters.

10 Mr Locaputo’s response. Mr Locaputo wrote to the Director General on 17 October 2001 stating that his former partners would not provide evidence of his experience and supervision because of the Supreme Court proceedings involving the dissolution of the partnership. Mr Locaputo maintained that he was involved in conducting conveyancing matters from 1 January 1999, when he became a partner of Delfino and Delfino, until 8 June 2001 when the partnership was dissolved.

11 Internal review. On 12 November 2001 a delegate of the Director General conducted an internal review and affirmed the original decision. It is that decision that is the subject of review by this Tribunal.

Evidence of Mr Locaputo’s experience

12 Roles of the partners and staff. Daniel Delfino gave evidence that he was responsible for the litigation side of the practice. He said that he occasionally did some conveyancing work and was ultimately responsible for those matters but that Rubens Delfino supervised the conveyancing files. Daniel Delfino admitted that Mr Locaputo assisted with the conveyancing work but denied that he managed all aspects of the conveyancing practice. Daniel Delfino said that he did not supervise Mr Locaputo in the conveyancing work or provide him with any training.

13 Rubens Delfino gave evidence that he was in charge of the conveyancing section and it was agreed that he would train Mr Locaputo in conveyancing matters and help Daniel Delfino in the legal practice. Mr Locaputo was also in charge of administration, staff issues including hiring and firing as well as the financial accounts. He says that Mr Locaputo sat with him when he interviewed three clients in relation to conveyancing matters. He says that those interviews were the only supervision he gave Mr Locaputo. Rubens Delfino said that Mr Locaputo would call him when he needed help with a matter. He would then explain the matter to the client. He said he was always available to help Mr Locaputo’s clients.

14 Rubens Delfino said that it was Mr Locaputo’s practice to see the clients, make notes and pass the matter on to the para- legal secretary or to him. Mr Locaputo occasionally attended to other matters on the file but never negotiated the terms of a contract, ordered a report or organised a settlement. Rubens Delfino agreed that because he was not at the office all the time it was possible that Mr Locaputo carried out other tasks in relation to conveyancing files about which he was not aware.

15 Mr Locaputo gave evidence that when he became a partner of Delfino & Delfino he concentrated on conveyancing work rather than on the accounting side of his practice because he understood that he was the partner who was to be responsible for the day to day conduct of the majority of the conveyancing matters. Mr Locaputo gave evidence that from the beginning of January 1999 until about April of that year, Rubens Delfino trained him in conveyancing. This training consisted of him sitting in on at least 10 interviews with clients during which Rubens Delfino explained the implications of the contract for sale. Rubens Delfino told him which reports needed to be ordered and the general procedures to be followed.

16 After April 1999 Mr Locaputo began taking on more responsibility for the conveyancing matters himself. He saw the clients, explained the contracts, advised on any necessary amendments, corresponded with solicitors and instructed his staff on the reports which had to be obtained and any other matters which needed attention. Mr Locaputo said he requested some reports himself but the majority were requested by his staff.

17 Deedree Tran completed a statement on 12 October 2001. She was not available to give oral evidence, but her statement was admitted with the consent of the Director General, subject to submissions as to its weight. She stated that she was employed by Delfino & Delfino as a paralegal from 1996 to 30 June 2001. She said that from January 1999 Mr Locaputo had a number of months training with Rubens Delfino and from about April 1999 the staff reported to Mr Locaputo in all matters related to conveyancing. She said that if there were any problems with the files they were reported to Mr Locaputo who reviewed the matter. He interviewed clients and explained the contracts to them.

18 Monica Guerrero was employed first as a receptionist for a few months and then as a conveyancing legal secretary by Delfino & Delfino from July 1999 to January 2001. Her duties were mainly pre-exchange inquiries. She said that she was personally trained by Mr Locaputo as she had no previous experience, apart from working for a real estate agent. She said she was responsible for up to 35 files per month and was supervised by Mr Locaputo at all times. During her time at Delfino & Delfino Mr Locaputo was the person to whom she reported and all conveyancing inquiries had to go through him.

19 Ms Sluper gave evidence that she was employed as a conveyancing secretary with Delfino & Delfino from January 2001 to May 2001. She conducted pre-exchange inquiries and reported to Mr Locaputo. She said they had meetings each morning where mail was distributed and files discussed. Ms Sluper said that Mr Locaputo had full carriage of the matters and that Daniel Delfino supervised him.

20 During the period from January 1999 to June 2001, the firm registered 584 conveyancing matters. This is an average of 19.4 matters per month. According to Mr Locaputo, during any one month period there would be between 40 and 50 open files for which he was responsible.

21 Time that Rubens Delfino spent at the office. Rubens Delfino said that the majority of his time was taken overseeing the conveyancing section. He also helped Daniel Delfino with litigation. He worked on a voluntary basis for the first 6 months of the new partnership, that is from 1 January 1999 to 30 June 1999. After that he says he worked an average of 3 to 4 days a week. Some weeks he only worked 1 or 2 days. Rubens Delfino agreed that he was on holidays for a total 12 weeks during the period from 1 July 2000 to 30 June 2001. He and his brother were away at the same time for approximately 12 days during the later period. Towards the end of 2000 he says he was working full time again. He denied having extended periods of absence from the practice.

22 Mr Locaputo disputed that Rubens Delfino attended the office on an average of 3 or 4 days a week when he started working part time. Ms Guerrero’s recollection was that Rubens Delfino was at the office two or three times a month, not an average of 3 or 4 days per week.

23 The wage records for that period indicate that while Rubens Delfino had a relatively high attendance record during October 2000 to January 2001 he was only in attendance for a total of seven days for the three months from July to September 2000.

Section 66W certificates

24 Practice in relation to s 66W certificates. There was considerable divergence in the evidence in relation to the firm’s practice concerning s 66W certificates. In summary Mr Locaputo, a staff member and three clients gave evidence that Daniel Delfino signed s 66W certificates without ever having communicated with the client. Daniel Delfino denied having done so.

25 When Mr Locaputo first took over the conveyancing practice, he said that Daniel Delfino would come into his office when the clients were there and explain the certificates to them. After some time Mr Locaputo said that Daniel Delfino suggested that Mr Locaputo explain the effect of the certificate to the client and organise for one of his staff members to ask Daniel Delfino to sign the certificate. Mr Locaputo said that he was happy for Daniel Delfino to continue explaining the effect of the certificate to the clients but he went along with the new practice and was comfortable with it because Daniel Delfino had suggested it. When it was put to Mr Locaputo that he knew or should have known that he was doing the wrong thing in organising for Daniel Delfino to sign the certificates when he knew that Daniel Delfino had not spoken to the clients, he said that he did not think anything of it at the time. In hindsight Mr Locaputo says that the practice was not the correct one but he did not have the experience to know that it was wrong.

26 Mr Locaputo’s evidence in relation to this practice was supported by three clients, Mr Albornez, Mr Da Silva, and Mr Soto.

27 Mr Albornez is Mr Garcia’s brother in law. He gave evidence that he had a conveyancing matter with Delfino & Delfino in May 2001. He said that he dealt only with Mr Locaputo and Deedree Tran in relation to that matter. Daniel Delfino had been his solicitor in relation to divorce proceedings but he was quite sure that Daniel Delfino never spoke to him either by phone or in person in relation to his conveyancing matter. He could not recall that he had needed a s 66W certificate in relation to his matter, however Mr Locaputo produced a s 66W certificate signed by Daniel Delfino and dated 7 May 2001.

28 Mr Locaputo also produced and tendered a s 66W certificate signed by Daniel Delfino on 22 March 2001 in relation to a conveyance involving Mr and Mrs Da Silva. Mr Da Silva gave evidence that he purchased a property at Castle Hill and engaged Delfino & Delfino in relation to the conveyance. He had used Delfino & Delfino before in relation to eight other properties and had always dealt with Rubens Delfino. On the most recent occasion he dealt with Mr Locaputo. He recalls Mr Locaputo explaining the cooling off period to him in his office. He knows Daniel Delfino and said that he is positive he did not speak to him either in person or by phone in relation to the Castle Hill transaction.

29 Mr Soto gave evidence that the only people from Delfino & Delfino who dealt with him in relation to his conveyancing matter about a year ago were Mr Locaputo and Deedree Tran. He said he did not meet with either Daniel Delfino or Rubens Delfino in relation to his conveyance. He made one change to his statement and that was that he had not seen the s 66W certificate referred to in his statement and could not recall Mr Locaputo explaining anything about waiving rights to a cooling off period. Mr Locaputo produced the s 66W certificate dated 9 February 2000 signed by Daniel Delfino in relation to Mr Soto’s conveyance.

30 Mr Locaputo recalls explaining the effect of the s 66W certificate to Mr Soto, Mr Albornez and Mr Da Silva. The evidence of Ms Guerrero also supported the allegation that Mr Daniel Delfino did not speak to clients directly before he signed s 66W certificates. She said that she would give Daniel Delfino a certificate to sign. He would sign it on the spot or, if he was not there, she would leave it on his desk and he would return it later.

31 Ms Sluper gave evidence that she filled out the details of the s 66W certificates and asked Daniel Delfino to sign them. According to Ms Sluper, Mr Daniel Delfino often signed the s 66W certificates when Mr Locaputo was seeing the client or when he was expecting a client later that day. Ms Sluper recalls a conversation between Daniel Delfino and Rubens Delfino on or about May 2001 when Rubens Delfino said to Daniel Delfino, “What are you doing? All s 66W’s have to be signed by you when you have explained the certificate to the client. Stop signing these things when you have not explained them to the clients. You can get us all in the shit.” Rubens Delfino then said to Ms Sluper “You know you shouldn’t be doing this. Later on if something goes wrong we will be in the shit.” Rubens Delfino denied that he said either of these things to Daniel Delfino in Ms Sluper’s presence. Ms Sluper said that after May 2001 Rubens Delfino would explain the s 66W certificate to a client and he would then sign the certificate.

32 Daniel Delfino gave evidence which contradicted the evidence of all these witnesses. He said his practice was always to speak to the client on the phone or in person before signing s 66W certificates. When it was put to Daniel Delfino that Mr Locaputo, Ms Guerrero and three clients had all given sworn evidence that this was not his practice, he said they were wrong.

33 Pre-signing of certificates. Mr Locaputo gave evidence that it was Daniel Delfino’s practice to pre-sign certificates prior to going overseas so that a certificate would be available should one be required. Ms Guerrero said that she clearly recalls having some pre-signed s 66W certificates in her office when Daniel Delfino went overseas for a period of 8 weeks. When Daniel Delfino was not in the office she would use one of the pre-signed certificates.

34 Daniel Delfino denied that his practice was to pre-sign s 66W certificates if he was busy or was going to be overseas. Rubens Delfino also gave evidence that Daniel Delfino never left pre-signed s 66W certificates and neither did he. When Daniel Delfino went on holidays from 21 July 2000 to 20 August 2000 he said that Mr Locaputo was left in charge of the practice.

35 Falsification of signatures. Mr Locaputo admitted that he had written Daniel Delfino’s signature on at least one s 66W certificate when Daniel Delfino was overseas. That certificate related to a client by the name of Garcia. According to Mr Locaputo, the circumstances of this event were that Daniel Delfino had pre-signed some s 66W certificates before he went overseas but that they had either run out or were soon to run out. Mr Locaputo said he phoned Daniel Delfino and told him that more certificates were needed. Mr Locaputo said that Daniel Delfino told him to sign them using his signature, and they could sort it out when he got back from overseas. When Daniel Delfino returned, Mr Locaputo showed him the files. He said that Daniel Delfino was upset that Ms Geurrero had signed one of the certificates because “she could hold it against us.”

36 Ms Geurrero said that she had a folder in her office with pre-signed s 66W certificates in it. She remembers in particular that certificates were signed by Daniel Delfino prior to him going overseas. She also remembers one occasion when she went into Mr Locaputo’s office and he was practicing Daniel Delfino’s signature. She commented that it was not a very good copy of the signature and Mr Locaputo said that she should try to do it. She went back to her office and practised the signature. She admitted signing Daniel Delfino’s signature at the bottom of one or two blank s 66W certificates.

37 Sales advice. Another of Daniel Delfino’s allegations against Mr Locaputo was that he passed himself off as a solicitor. The evidence for this was a copy of a sales advice form which he had received from a vendor in which the purchaser’s solicitors are described as “Locaputo-Garcia solicitors”. Apparently, Acclaim Real Estate re-issued a new sales advice, correcting the error, the following day.

Findings of fact

38 With a few minor exceptions, I found Mr Locaputo to be a credible witness. His version of events was generally consistent, believable and supported by the evidence of other independent witnesses. I found the evidence of Daniel Delfino and Rubens Delfino not to be as reliable as that of Mr Locaputo. Daniel and Rubens Delfino’s evidence was generally consistent with one another but it was often inconsistent with the evidence of independent witnesses. In addition, they gave no evidence which was against their interests. On the basis of these observations about credit, I make the following findings.

39 One area in which I find that Mr Locaputo was not telling the whole story was in relation to his application for a conveyancers licence. He attached a letter signed by a non-legal partner of Delfino and Delfino, setting out his experience. He did not explain anywhere in the application that Mr Garcia is not a licensed conveyancer or solicitor. He should have told the Director General that he was not able to obtain the necessary documentation from Daniel or Rubens Delfino and the reason for that inability. His evidence that there was “no room” on the form to give an explanation is not convincing.

40 Daniel Delfino objected to Mr Locaputo’s application. While the first objection in relation to the falsification of s 66W certificates was valid, the second objection was based on documentation that Daniel Delfino knew, or should have known, was not intended to deceive. Mr Locaputo did not mislead clients by attempting to pass himself off as a solicitor.

41 Daniel Delfino was responsible for the litigation side of the practice and Rubens Delfino supervised the conveyancing files. Mr Locaputo was responsible for the day to day conduct of the majority of the conveyancing matters. I find that Rubens Delfino trained and supervised Mr Locaputo in conveyancing matters. Evidence to that effect was given by Daniel Delfino and Ms Sluper. That supervision consisted of Mr Locaputo sitting in with him when he interviewed approximately 10 clients during the period from January 1999 until about April 1999. During these interviews Rubens Delfino explained the implications of the contract for sale. After the interviews, Rubens Delfino told Mr Locaputo what reports needed to be ordered and the general procedures to be followed. According to the evidence of Rubens Delfino, Mr Locaputo would call him whenever he needed help with a matter.

42 I accept Mr Locaputo’s evidence, which is corroborated by staff members, that after April 1999 Mr Locaputo began taking on more responsibility for the conveyancing matters himself. He saw the clients, explained the contracts, advised on any necessary amendments, corresponded with solicitors and instructed his staff on the reports which had to be obtained and any other matters which needed attention. During any one-month period there were between 40 and 50 open conveyancing files for which Mr Locaputo he was responsible.

43 Rubens Delfino worked on a voluntary basis for the first 6 months of the new partnership, that is from 1 January 1999 to 30 June 1999. After that he was in the office intermittently. Rubens Delfino was on holidays for a total 12 weeks during the period from 1 July 2000 to 30 June 2001. Given this fluctuating level of attendance and the fact that he signed only one s 66W certificate during the period January 2000 to the end of March 2001 it is clear that Rubens Delfino was not managing the conveyancing practice during this period. Contrary to the evidence of Daniel and Rubens Delfino, Mr Locaputo did manage virtually all aspects of the conveyancing practice after April 1999.

44 I find, on the basis of the overwhelming evidence, that Daniel Delfino’s practice during the period from at least February 2000 to May 2001 was to sign s 66W certificates in circumstances where he had not communicated with the client concerned. I accept Mr Locaputo’s evidence that he did not think that this practice was a problem at the time, but that he now realises that it was not the right thing to do.

45 I also find that it was Daniel Delfino’s practice to pre-sign certificates prior to going overseas so that a certificate would be available should one be required. I find that Mr Locaputo forged Daniel Delfino’s signature on at least one s 66W certificate when Daniel Delfino was overseas. Mr Locaputo also suggested to Ms Geurrero that she forge Daniel Delfino’s signature on a s 66W certificate and she did so. I also find that Daniel Delfino told Mr Locaputo to sign the certificates, using his signature and that they would sort it out when he got back from overseas.

Relevant legislation

46 A person can apply for a conveyancers licence under s 9 of the Conveyancers Licensing Act 1995 (the Act). Section 10 sets out the manner in which the Director General should determine an application for a conveyancers licence. That section states that:

(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.

47 Section 7 of the Act states that to be qualified to be granted a licence a person must satisfy the Director General of a number of matters. One of those matters is that the person:

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

48 The Order published in the Gazette (No 122 dated 22 October 1999 at page 6 of the Order and page 10055 of the Gazette) sets out the requirements for experience as follows:

. . . two years relevant practical training and conveyancing experience; at least one year of this 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

49 Mr Hall on behalf of Mr Locaputo submitted that Mr Locaputo met the requirements of the Act to be granted a conveyancers licence and although he admits falsifying Daniel Delfino’s signature on a s 66W certificate, there is no chance that he would repeat that behaviour. According to Mr Hall, a person’s honesty may be affected by the practice of people around them. Daniel Delfino should have taken his responsibilities more seriously. While Mr Hall acknowledged that this is not a complete defence to Mr Locaputo’s actions, he would not do it again.

50 When explaining to clients the nature of a s 66 W certificate, Mr Locaputo understood in general terms what the nature of the certificate was. That understanding crystallised, according to Mr Hall, when Mr Locaputo completed his course in conveyancing at Macquarie University. Mr Locaputo’s understanding of s 66W certificates was corroborated by evidence from Mr Albornez and Mr Solo, who both gave evidence that Mr Locaputo explained the effect of the certificate to them.

Respondent’s submissions

51 The Director General has concerns that Mr Locaputo lacked the knowledge to explain the import of s 66W certificates adequately. Mr Wilson, on behalf of the Director General, submitted that Mr Locaputo had been explaining s 66W certificates in circumstances where he did not fully understand their effect. He quoted Mr Locaputo as saying that “Only when I finished my course did I understand the legal terms.”

52 Mr Wilson also submitted that Mr Locaputo did not have two years relevant practical training and conveyancing experience at least one year of which was while employed or otherwise engaged on a full-time basis under the supervision of a licensed conveyancer or a solicitor. The evidence was that Rubens Delfino was not in full time attendance at the practice and was absent for considerable periods on occasions. According to the Director General, assuming Rubens Delfino was in attendance for an average of one day per week, this would not enable Mr Locaputo to be adequately supervised for a full year.

Decision and reasons

53 Section 5 sets out the matters which will disqualify a person from holding a licence. Section 5(1)(c) specifies that a person is a disqualified person if he or she “has been convicted in New South Wales or elsewhere of an offence involving dishonesty.” Although Mr Locaputo admitted that he had falsified Daniel Delfino’s signature, he has never been convicted of an offence in relation to that matter.

54 Section 10 of the Act states that “the Director-General may determine to grant a licence to the applicant, or to refuse the application.” On its face, this provision gives the Director General an unfettered discretion to grant or refuse a licence.

55 That discretion must be exercised by taking into account relevant considerations. In PJ Vickers v Conveyancers Licensing Committee (unreported Supreme Court of NSW, 27 July 1995) Sperling J interpreted similar words in the Conveyancers’ Licensing Act 1992. Section 12(1) of that Act provides that “the committee may grant or refuse an application for a certificate of eligibility.” Despite a reference to “fit and proper person” in the second reading speech in the Legislative Assembly delivered by the Hon P Collins QC BA LLB MP on 30 June 1992, Sperling J found that:

Applicants who obtain a certificate of eligibility must apply to the Council for a licence. A wider discretion may arise there, although none is expressly provided for in the legislation in relation to the Council either. I am inclined to the view, reading the legislation as a whole, that the Committee has no general discretion to reject an application for a certificate of eligibility on the ground that the applicant is not a fit and proper person. But, for more abundant caution, I will proceed on the basis that it does.

56 There is nothing in the Act which specifically allows the Director General to refuse to grant an application for a conveyancers licence on the ground that the applicant is not a fit and proper person to be issued with such a licence. On this basis, the Director General did not rely on any allegations of bad character or repute as a ground for his decision to refuse the licence.

57 In this decision, I have proceeded on the basis that the Director General has no general discretion to reject an application on the ground that the applicant is not a fit and proper person. That was the Director General’s view. However, in case I am wrong, I am satisfied that Mr Locaputo is a fit and proper person to hold a conveyancers licence. Despite his admission in relation to a forged s 66W certificate, he was frank about that matter before the Tribunal and now understands that it was dishonest and is totally unacceptable behaviour. I agree with Mr Hall’s submission that he was influenced by those around him and that in other circumstances he would not have contemplated forging anyone’s signature. I am satisfied that Mr Locaputo will never engage in this kind of dishonest behaviour again.

58 Consequently, the final basis for the Director General’s decision is that Mr Locaputo has not had two years relevant practical training and conveyancing experience; at least one year of which occurred while he was employed or otherwise engaged on a full-time basis under the supervision of a licensed conveyancer or a solicitor.

59 This requirement has two overlapping components. Firstly, an applicant must have had at least two years relevant practical training and conveyancing experience. Secondly, during at least one of those years the applicant must have been employed or otherwise engaged on a full-time basis under the supervision of a licensed conveyancer or a solicitor.

60 The first part of the requirement is clearly met in this case. Mr Locaputo has had two and a half years relevant practical training and conveyancing experience. The second part of the requirement is that during at least one of those years he was employed “under the supervision” of a licensed conveyancer or a solicitor. There is no issue that Mr Locaputo was engaged on a full-time basis.

61 Rubens Delfino trained and supervised Mr Locaputo for three to four months from January to April 1999. While he did not actively supervise Mr Locaputo after that date, Rubens Delfino’s own evidence was that Mr Locaputo would call him when he needed help with a matter and that he was “always available to help Mr Locaputo’s clients.” Daniel Delfino and Ms Sluper also gave evidence that Rubens Delfino “supervised” the conveyancing files.

62 Contrary to the respondent’s submission, the fact that Mr Rubens Delfino was not in full time attendance during this period and was absent for considerable periods on occasions, does not mean that Mr Locaputo was not “under his supervision”.

63 On the basis of all the evidence I am satisfied that Mr Locaputo has met the requirement of having two years relevant practical training and conveyancing experience; at least one year of which occurred while he was employed or otherwise engaged on a full-time basis under the supervision of a licensed conveyancer or a solicitor.

Orders

64 The Director General’s decision to refuse Mr Locaputo’s application for a conveyancers licence is set aside. In substitution for that decision a decision is made to grant a conveyancers licence to Mr Locaputo.