Rosenstrauss v Department of Finance and Services
[2012] NSWADT 264
•13 December 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Hearing dates: 29 June 2012, 17 August 2012 Decision date: 13 December 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed
Catchwords: Real Estate Agent - strata managing agent - Licence refused -Fit and proper Legislation Cited: Administrative Decisions Tribunal Act 1997
Property, Stock and Business Agents Act 2002Cases Cited: A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310
AJO v Director-General Department of Transport [2012] NSWADT 101
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389
Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Fitton v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 72
Giri v Roads and Maritime Services [2012] NSWADT 241
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
In Re Habis (The Licensing Court of NSW, 9 July 1998, unreported)
Lloyd v Director General, Department of Transport [2001] NSWADT 201
Maythisathit and Registrar of Motor Vehicles [1996] ACT 165
McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183
McKenzie v Director General, Department of Transport [2000] NSWADT 126
Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1
Nasour v Director-General, Transport NSW [2011] NSWADT 91
Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284
Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18
Pillai v Messiter [No. 2] [(1989) 16 NSWLR 197 at 201
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Sobey v Commercial and Private Agents Board 20 SASR 70
Tirta v Ministry of Transport [2006] NSWADT 65
Trlin v Department of Fair Trading [1999] NSWADT 72
Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279Category: Principal judgment Parties: Jeffrey Stanley Rosenstrauss (Applicant)
Department of Finance and Services (Respondent)Representation: D Carroll (Applicant)
Harris & Company (Applicant)
Department of Finance & Services, Legal Services (Respondent)
File Number(s): 113282
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of the determination by a delegate of the Respondent's Director-General under the Property Stock and Business Agents Act 2002 ("the Act") to refuse to renew the Applicant's real estate agent licence and strata managing agent's licence.
The refusal was based on the delegate's view that that the Applicant was not a fit and proper person to hold the licences. The determination was affirmed on internal review and the Applicant has applied to the Tribunal for external review of the determination.
The parties are in general agreement regarding the background of the matter.
Background
In 2009 the Applicant pleaded guilty to offences committed against a young girl. The offences took place between September 1979 and May 1981 when the victim was 9 and 10 years old. At the time of the offences the Applicant was a friend of the victim's family and, as such, the victim's mother occasionally placed him in a position of trust.
Neither the Applicant nor the victim reported the offences to police or any authorities at the time that the offences took place. However, following the death of her mother, the victim complained to the NSW Police in June 2009. Following investigation by the NSW Police, the Applicant was charged in April 2010 and indicted on 17 February 2011.
The Applicant made admissions to the victim when she contacted him. Police intercepted phone calls between the victim and the Applicant and charges were brought against the Applicant based on his admissions. He admitted all of the alleged offences and entered a plea of guilty to those charges at an early stage. He was convicted on three counts of assaulting a female and committing an act of indecency and was sentenced to a 3-year term of imprisonment commencing 18 February 2011 and expiring on 17 February 2014. The non-parole period expired in June 2012 and the Applicant was released from custody shortly before the matter came before the Tribunal.
The Applicant applied for the licence renewal on 30 May 2011. At that time he had commenced his term of imprisonment and had not been released on parole. In his renewal application he declared his conviction and sentence and indicated that the sentence was under appeal. He did not advise that he had commenced his term of imprisonment at the time of his application.
The Applicant successfully appealed to the NSW Court of Criminal Appeal in regard to the issue of whether the court had erred in setting a non-parole period that was greater than one half of the head sentence. The head sentence was not changed as a result of the appeal.
Applicable legislation
The terms "real estate agent" and "strata managing agent" are defined in section 3 of the Act.
Section 8(1) of the Act prohibits a natural person from carrying on the business of a real estate agent or strata managing agent unless the person is the holder of an appropriate licence.
Section 14(1) of the Act provides among other things that a natural person is eligible to hold a licence only of the Director- General is satisfied that the person is "fit and proper" to hold a licence.
Section 19 of the Act prohibits the Director-General from granting a licence unless the applicant is eligible in accordance with the requirements set out in section 14 of the Act.
The parties are in general agreement in regard to the issue for determination. The Tribunal must determine whether the correct and preferable decision in this matter is to refuse to the Applicant's licence renewal application. It is common ground that this requires a determination of the question of whether or not the Applicant can be considered to be a fit and proper person to hold the licences.
The Applicant's case
The Applicant is 63 years of age and for almost the whole of his working life he has been engaged in providing real estate services - he has worked as a real estate agent, valuer and strata managing agent.
He was first issued a real estate agent's licence in June 1977 and a strata managing agent's licence in June 1982. Those licences were renewed each year thereafter until 2011. He has not been the subject of complaint or disciplinary action relating to the licences.
For much of his working life he has been employed by his father's real estate business ("the business") that has traded as Rosen & Co. From March 1998 until February 2011 he carried on the business in partnership with his father and was directly involved in all facets of the business.
The Applicant's father continues to carry on the business. However, he is 86 years of age and wishes to retire as a real estate agent and strata managing agent due to his advancing age and failing health. The Applicant's brother and daughter are now working in the business but there may be consequences for the viability of the business if the Applicant's licences are not renewed.
From July 1999 until February 2011 he was a director of the Rebecca L Cooper Medical Research Foundation ("the Foundation"). He was not paid for the services that he rendered to the Foundation. The Foundation is a charitable institution established in 1984 which utilises the income generated from the letting of more than 100 residential, commercial and industrial properties which it owns for the purpose of funding medical research. He was responsible for much of the day-to-day administration and management of the Foundation's property portfolio.
On 18 February 2011 the Applicant was convicted of three offences committed against a young girl. He had not been convicted of any summary or indictable offences prior to that date.
He acknowledges that his offences were serious. He contends that the Tribunal should find that he committed a grave wrongdoing over 30 years ago but that he is genuinely remorseful and since the offences occurred he has proven himself as a man worthy of trust. All the staff working in the business are aware of the Applicant's convictions, as are most of the clients of the business.
In oral evidence before the Tribunal, he asserted that he is a fit and proper person to hold the licences notwithstanding his convictions. He asks the Tribunal to have regard to the circumstances of his convictions and what has transpired since the offences occurred.
He contends that from the first opportunity he admitted his conduct, that he disclosed that conduct to the Respondent and that all the evidence confirms that a reformation of character and behaviour has occurred.
Under cross-examination the Applicant conceded that he did not notify the Respondent at the time he was charged and that he was aware that the bringing of charges against him would have implications with respect to his reputation.
When sentencing the Applicant on 18 February 2011 Berman J was satisfied that the offences were isolated and unexplained, that the Applicant had demonstrated remorse and that he was now a much different person from the man he was when the offences were committed more than thirty years ago. It is submitted that the Applicant has been of exemplary character since the offences had been committed and the fact that the Court was satisfied that he had an underlying good character is of very great significance.
In support of his case he relies on his own evidence and affidavits provided by Kelvin Anthony Wallace, Linda Jacqueline Heaphy and David Anthony Gollan.
Kelvin Wallace
Mr Wallace is a Commercial Business Manager employed by Caltex Australia Petroleum Pty Ltd. He met the Applicant about 30 years ago through the Eastern Suburbs Motorcycle Club and became well acquainted with the Applicant when they participated in a number of club functions together. They have also worked together in a voluntary capacity on the executive committee of the club from time to time.
Over the course of the 30-year period that he has known the Applicant, they have become friends and have socialised on a regular basis. Mr Wallace has also had business dealings with the Applicant. He has had dealings with the Applicant as a licensed real estate agent and as a strata managing agent and has been extremely impressed with the Applicant's professional ability. The Applicant has also provided Mr Wallace with very important emotional support.
In early 2011 the Applicant told Mr Wallace that he had been charged with the criminal offences for which he was subsequently convicted. Mr Wallace provided character evidence at the Applicant's trial. He is familiar with the facts and circumstances relating to the offences and nevertheless believes that the Applicant is a person of underlying good character. He is of the opinion that the Applicant is a person of unquestionably good character and that the offences, which were committed more than 30 years ago, were an aberration.
Mr Wallace stated that, in his personal and business dealings with him over the course of a 30 year period, the Applicant has demonstrated that he is of good character.
Linda Jacqueline Heaphy
Ms Heaphy is an owner of a family run business trading from premises owned by The Rebecca L Cooper Medical Research Foundation Ltd ("the Foundation"). She stated that she has dealt with the Applicant as letting agent of those premises and found the Applicant to be very professional and extremely fair. She stated that she has always found the Applicant to be thoroughly professional in his approach to his work, and that he was truly interested in his tenants, their lives and their businesses.
She came to enjoy talking to the Applicant and asked him about the work of the Foundation and his involvement with it. She learned that he was on the Foundation's board of directors.
In about February 2011 she read a newspaper article about the Applicant having been convicted and gaoled. She was shocked by that information but subsequently wrote a handwritten letter to the Applicant in which she expressed support for him. She also visited the Applicant at Long Bay Gaol together with her husband and with the Applicant's daughter, Bianca.
Ms Heaphy stated that she has come to recognize that the Applicant is a man of honesty and integrity who deals with people in a kind and caring manner. She believes that the Applicant is a man of utmost good character.
She has read the judgment of the District Court relating to the Applicant's convictions. She believes that the Applicant has paid the penalty for his crimes and that as a person of underlying good character, the Applicant should be given the opportunity to return to work as a real estate agent and strata managing agent.
David Anthony Gollan
Mr Gollan is managing director of The Kraftsmen Property Maintenance (NSW) Pty Ltd ("the Kraftsmen"). The Kraftsmen's principal business is carrying out repairs and maintenance work with a focus on plumbing and roofing work. Mr Gollan have known the Applicant's father, in a professional capacity, for more than 35 years. He has known the Applicant for between 15 and 20 years and was introduced to him by his father. The Applicant and his father have retained Kraftsmen on many occasions to carry out repair and maintenance work on properties that they managed.
He stated that he has dealt with the Applicant in a professional capacity on a regular basis and found him to be a very well organized person. His approach is very professional. In his business dealings with the Applicant since 1998 he has found the Applicant to be scrupulously honest and a person of good character.
He stated that he is aware that the Applicant has been convicted and gaoled. He has read the judgment of the District Court relating to the Applicant's convictions. He believes that the Applicant is a person of good character and that he should be given a chance to return to work as a real estate agent and strata managing agent.
Dr. Christopher Lennings
The Applicant also relies of the pre-sentence report and psychologist's reports of Dr. Christopher Lennings, a clinical psychologist. In a Psychologists Report dated 14 October 2010 Dr. Lennings identified that Applicant as a low risk offender and expressed confidence that the Applicant will not re-offend.
The supplementary report of Dr Lennings dated 23 July 2012 reaffirms that view. He offered the following opinion:
Formulation. Mr Rosenstrauss presents as a man entering early old age, who remains fit and has good cognitive ability. He presents with appropriate remorse for the behaviour that he committed as a much younger man and has come out of gaol reasonably unscathed from that experience. He is seeking to pick up the traces of his life. He continues to reveal no indicators that would suggest any appreciable risk of harm exists in relation to further sex offence. To that end his character remains a primary determining feature of his life. He is a prosocial and somewhat conservative man who has a strong orientation towards furthering the business that his father started. He has good levels of social support and to that end he appears to be a person who would be likely able to make a substantial contribution still to the industry that he has worked most of his life in. If the concerns in regard to his retaining his Real Estate license relate to risk of harm or psychological malaise, neither represent a significant factor for him. Whilst I cannot comment on how his behaviour may be seen by his colleagues, in other facets of his life he presents as pro social and industrious with no obvious risks for anti social behaviour.
It was submitted on behalf of the Applicant that the Applicant has proven that he is now a different man than he was at the time the offences were committed. There has been a very long passage of time during which he has demonstrated that his character is reformed. Furthermore, a court of record has made the express finding that the Applicant is a person of underlying good character.
It was submitted that in determining whether the Applicant is a fit and proper person to be issued with a real estate agent's licence and a strata managing agent's licence his past improper conduct must be considered in light of the activity which is to be licensed and not considered at large. The question to be asked is whether the circumstances of the Applicant's convictions are such that he is not fit to discharge the responsibilities relating to the work that would be authorised on the issue of those licences: Fitton v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 72 at paragraphs [40] - [42].
The Applicant has an unblemished work history as a real estate agent and as a strata managing agent. It was submitted that the circumstances of his convictions were related to matters entirely removed from his work in real estate and had no bearing on that work. The fact of the convictions should not itself prohibit the Applicant from working in a field for which he is well qualified and experienced. It was further submitted that the Applicant did not in any way conceal the fact of his convictions, the seriousness of them or that he was sentenced to a term of imprisonment as a consequence of having been convicted.
It is submitted that in all these circumstances, the Tribunal should conclude that the Applicant is a fit and proper person to be issued with the licences. Accordingly, it should set aside the decision and in substitution, decide to renew the licences.
The Respondent's case
The Respondent relies on material filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. Mr Nicoletti provided written and oral submissions in support of its decision to refuse to renew the licences.
In the Respondent's submission the onus is on the Applicant to establish that he is entitled to and that he is a fit and proper person to be issued with the licences. Mr Nicoletti points to the protective nature of the jurisdiction. He submits that the intent of the legislation is to ensure that only persons who are able to be trusted can hold a licence.
In particular the Respondent relies on the Applicant's failure to notify the Respondent that he had been charged with the offences for which he was ultimately convicted, the fact of his convictions and the fact that he remains on parole and has not yet completed the full term of his sentence.
The Applicant only disclosed the fact of his convictions to the Respondent when he applied to renew the licences in May 2011. As noted above, he was charged with the offences in April 2010 and convicted in February 2011. Mr Nicoletti submits that during that period the Applicant's licences remained in force and that the Applicant should not have remained silent about the charges. He argues that a licensee has an obligation to bring anything that might be relevant to the licence to a regulator's attention and that the failure to do so raises issues regarding the Applicant's fitness and propriety. He submits that the absence of any specific legislative requirement to do so does not alter the situation.
It is the Respondent's submission that when determining fitness and propriety, the decision maker is required to look at the merits of the application in the circumstances of each case. The decision making process is guided by a consideration of the relevant matters in regard to the particular Applicant's fitness and propriety to be granted the relevant authority.
The Respondent concedes that the fact of a conviction in itself will not ordinarily be enough for the Tribunal to be satisfied that a person is not a fit and proper person to be issued with a licence to undertake a particular work activity. However, in relation to the offences for which the Applicant was sentenced, Mr Nicoletti contends that:
the Applicant was in a position of trust in relation to his victim;
each offence for which the Applicant was sentenced by the District Court involved a serious sexual assault on a child;
the Applicant's conduct only ceased when the victim told him that she did not want the incidents to continue;
while all the offences all occurred more than 30 years ago, the Applicant failed to report his conduct at any time since the commission of the offences;
the Applicant gave evidence to the District Court that he was "able to put these offences out of his mind and in so doing was able to live his life with an unblemished character';
the Applicant only acknowledged he committed the offences in 2009 when contacted by the victim. Effectively the Applicant did nothing about his conduct until confronted by the victim and subsequently upon his arrest and indictment by NSW police and the Crown;
notwithstanding his acknowledgement of remorse to the victim, the Applicant did not hand himself in to police or otherwise report his conduct to another person. He continued to hide his past conduct from the world at large;
while the Applicant pleaded guilty at an early stage in the Local Court, he did so only when confronted with incontrovertible evidence of the offences. Initially when arrested, he declined to participate in an electronic record of interview.
Mr Nicoletti submits that, in so far as determining whether the Applicant is a fit and proper person, it is not strictly relevant that the offences were committed more that 30 years ago; what is relevant is the point in time at which the Applicant has accepted responsibility for the offending conduct. He contends that the Applicant has only recently accepted responsibility for his conduct.
The Respondent contends that the first time that the Applicant showed remorse for his actions was when he expressed his remorse to the victim in November 2009. He accepted responsibility for the offences by subsequently pleading guilty in the District Court once confronted by incontrovertible evidence of the police case against him.
Mr Nicoletti submits that at any time between November 2009 (when he expressed his remorse to the victim) and April 2010 (when he was arrested) the Applicant could have attended a police station and made a full and frank confession of his criminality. However he did not do so, and simply carried on with his life.
Mr Nicoletti submits that accepting one's responsibility and culpability in any wrongdoing is a relevant consideration in an application for a licence: Trlin v Department of Fair Trading [1999] NSWADT 72 at paragraph [17] and [24]. He further submits that in so far as the Applicant failed to disclose his criminality after being confronted by his victim, he may be said to have been dishonest during that period.
In the circumstances, the Respondent contends that any reformation of character can only date from such time as the Applicant accepted responsibility for the offences. That is, from the plea of guilty in the District Court.
In support of that contention Mr Nicoletti referred to views expressed by the Appeal Panel in Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 at paragraph [56] where it stated that the applicant's inability to acknowledge his guilt for the crimes for which he was convicted in 1980 and 1988 remained a significant shortcoming in his character.
The Respondent concedes that the District Court found that the Applicant was "genuinely sorry because of the harm that his behaviour has caused to an innocent young girl". However, Mr Nicoletti also noted that the Court considered that the Applicant had "good prospects of rehabilitation." Accordingly, he submitted, the Court did not consider that the Applicant was in fact rehabilitated.
The District Court also commented that the period of imprisonment to which he was sentenced would have been longer had the Applicant been sentenced for similar offences under current statutory provisions and not the ones under which he was charged.
In the circumstances the Respondent contends that the Applicant has not discharged the "heavy onus" of satisfying this Tribunal that he is a different man from when he committed the offences for which he was sentenced.
The Respondent also submits that the correct and preferable decision is to refuse a licence to a person who is presently serving a custodial sentence. Mr Nicoletti submits that there are a number of reported decisions of various tribunals and courts where applicants serving custodial sentences have been refused licences or statutory authorities.
By way of illustration, Mr Nicoletti referred to a number of decisions. In the matter of In Re Habis (The Licensing Court of NSW, 9 July 1998, unreported) a Licensing Magistrate refused an application by a person for a certificate of registration as a real estate salesperson where the applicant had pleaded guilty some nine months previously to stealing money from his employer and was still serving a bond in respect of that offence.
In McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 the Land and Environment Court refused a person registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view the court accepted that a person who was still under a bond in respect of a serious criminal offence could not be a fit and proper person and therefore licensed as a property valuer, even though the person was suitably qualified.
In Tirta v Ministry of Transport [2006] NSWADT 65 this Tribunal affirmed the decision of the Director-General of the Ministry of Transport to refuse to grant the applicant an authority to drive a taxi-cab on the basis that the applicant was still serving a bond for an offence of assault.
In Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284 this Tribunal refused to grant an application for a certificate as a real estate agent to the applicant who had recently been convicted of two serious offences. The applicant was on a good behaviour bond in respect of one of those offences.
Mr Nicoletti submits that in each of these cases, one of the relevant matters taken into account by the court or tribunal was that a person who was serving a sentence for a criminal offence should not be in a position where they could hold themselves out to the public as a fit and proper person in whom trust could be placed by the public.
The Respondent submits that if the Applicant were to be issued with a licence of any kind under the Act while still serving a sentence for a very serious criminal offence, then it is open for any person dealing with him to assume that he is unburdened by a custodial sentence.
The Respondent submits that this would undermine the statutory scheme as established in the Act and is inappropriate in the circumstances where there is a significant public expectation that a real estate agent is a trustworthy person. It submits that the correct and preferable decision is to affirm the decision under review.
Discussion
As noted above, an issue for determination is whether or not the Applicant can be considered to be a fit and proper person to hold the licences.
The expression "fit and proper" has been judicially considered on a number of occasions. Each of the parties has referred to a number of authorities that have dealt with the issue.
The Applicant's fitness and propriety is brought into question by his offences, charges and convictions and his lack of candor in bringing those matters to the Respondent's attention.
Fit and Proper
Judicial Member Huntsman recently reviewed a number of considerations of the expression "fit and proper" in her decision in Giri v Roads and Maritime Services [2012] NSWADT 241. That decision related to the issue of whether the applicant was considered to be a fit and proper person to be the driver of a taxi-cab for the purposes of section 33 of the Passenger Transport Act 1990.
Mr Giri had applied to the Tribunal for review of a decision to refuse his application for an authority to drive taxicabs. In 1999 Mr Giri was convicted of the offence of murder. He was sentenced to 17 years imprisonment, with a minimum term of 12 years. He was released to parole in September 2011 and at the time of hearing he was on parole and continuing to serve his sentence in the community. His sentence expires in September 2016.
Judicial Member Huntsman provided a useful review of the authorities at paragraphs [23] to [27] of her decision. The Judicial Member stated:
"23. In deciding this matter the Tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35:
24. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
25. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:
'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. '
Toohey and Gaudron JJ said at 380:
"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. "
26. A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):
"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ... 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. "
27. In Sobey v Commercial and Private Agents Board 20 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 evolving 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. "
28. Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
29. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:
the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
the Applicant's reputation in the community; and
the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
30. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ.
The comments of Kirby P in Pillai v Messiter [No. 2] [(1989) 16 NSWLR 197 at 201], quoted above, are an example of this.
[the omitted comments of Kirby P are as follows:
"... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."]
31. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection. "
32. As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
'A distinction must be drawn between "repute" or "reputation" and
"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts. "
In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained:
"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person. "
33. In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:
"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character:
"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the question was whether or not a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279. "
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
34. In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy.
35With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder.
24 A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 also provides useful guidance:
...
42. The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual re-offence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the Applicant and ask whether that member of the public, knowing of the Applicant's criminal record and what he has done ... to rehabilitate himself, would object to the Applicant as the driver of the taxi."
25 The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an Applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an Applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public.
26 The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 (4 May 2011):
In that case [Farquharson] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson, as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
27 Useful guidance was offered by the Tribunal in the case Saadieh v Director General, Department of Transport [1999] NSWADT 68 as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal then observed:
Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
...
In assessing [the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further offences], several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the Applicant has made to rehabilitate himself or herself during that time and; any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.
In Giri v Roads and Maritime Services Judicial Member Huntsman considered the issue of whether a person who has been released on parole and continues to serve his sentence in the community could be considered to be fit and proper. The Judicial Member stated:
33 The Tribunal discussed with the Respondent's representative whether there were any authorities indicating that a person on parole could not be considered to be fit and proper - that is, that there would be considered to be an absolute bar on a person still serving a sentence being considered to be rehabilitated. The Respondent's representative said there was no authority on point but indicated that the authorities and legislation would persuade the Tribunal that a person still serving a sentence for a charge of murder could not be considered to be of good repute and a fit and proper person to drive a taxi.
34 In the case McKenzie v Director General, Department of Transport [2000] NSWADT 126 (6 September 2000) the Tribunal stated:
In reaching the decision to revoke Mr McKenzie's authority the administrator properly gave considerable weight to the fact that Mr McKenzie is currently on a recognisance, which will not expire until December 2001.
A critical issue to be determined in this matter is whether Mr McKenzie can be said to meet the high standards set out in s 11 of the Act while he remains on a bond.
Mr Wozniak submits that Mr McKenzie's bond must be seen as highly relevant.
I accept that the bond is relevant in the sense argued by Mr Wozniak but also in another way. It is a significant deterrent for Mr McKenzie who is now in effect, on probation. Should he breach the bond, he faces the prospect of severe punishment by the Court. This is a significant incentive to behave impeccably.
35 In the case of Lloyd v Director General, Department of Transport [2001] NSWADT 201 the Tribunal observed:
38 Mr Lloyd submitted that the remaining period of the Bond should not prevent him from holding an authority to drive Public Passenger Vehicles. He referred the Tribunal to the decisions of Rasheed and McKenzie v Director General, Department of Transport [2000] NSWADT 126 as authority for that proposition. In Rasheed the presiding Judicial Member stated at paragraph 36 of the written decision:
"Finally, it was submitted to me by Mr Wozniak for the Respondent that the fact that the Applicant will remain under a bond until 20 May 2000 prevents a finding under s 11(2) of the Act that he is 'of good repute'. I do not accept this. The sentence for the conviction cannot be looked at separately, nor can it elevate the facts of the offence into something more severe. It is the offence itself, confirmed as it is by the conviction, that must be assessed under s 11(2)."
...
The Tribunal must attest that Mr Lloyd is a fit and proper person to be the driver of a public passenger vehicle, otherwise the Respondent's decision must be affirmed.
In assessing whether sufficient time has elapsed since the offences, I am guided by the time imposed by the Courts in terms of the good behaviour bond.
I accept that the bond is clearly not conclusive of a time at which Mr Lloyd can be said to be rehabilitated. However, in the absence of any independent current psychiatric report I am of the view that it would be imprudent to allow Mr Lloyd to hold the authority sought prior to the expiration of the bond in August 2002.
I note Mr Wozniak's submission that if Mr Lloyd does not re-offend during the remaining period of the bond then the Respondent would take notice of that fact if Mr Lloyd were to reapply for an authority. In my view that would be a reasonable approach.
I am also of the view that if Mr Lloyd were to obtain a psychiatric report which addresses the issue of the likelihood of Mr Lloyd re-offending, it would be reasonable for the Respondent to take notice of that report if Mr Lloyd were to reapply for an authority prior to the expiration of the remaining period of the bond.
36 The High Court decision of Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 provides a discussion of considerations held relevant by the High Court in consideration of the fitness of legal practitioners, in that case a Barrister. The case was considered and applied by the High Court in A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310 (4 February 2004) wherein the High Court stated [citations omitted]:
In an appropriate case, where there is utility in so doing, the Supreme Court may make a declaration of professional misconduct either with or without an order removing the name of a practitioner from the roll. ... Thus not all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the roll. Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears.
The decision in Ziems' case
Where a practitioner appeals to this Court from an order of the Supreme Court removing him or her from the roll of practitioners, two potentially countervailing considerations arise. They were referred to by Fullagar J in Ziems v The Prothonotary of the Supreme Court of NSW, who said:
"[T]he appellant challenges what is not merely an exercise of discretion by the Supreme Court, but an exercise of discretion in a matter which is in a special sense the province of the Supreme Court as the highest court of New South Wales. It relates to the right of a man to practise in that court and in other courts of New South Wales over which that court exercises a supervisory jurisdiction in certain ways. On the other hand, the possibly disastrous consequences of disbarment to the individual concerned [are such that] a court to which an appeal comes as of right is bound to examine the whole position with meticulous care."
...
The case of Ziems provides an example of the need to examine "the whole position". There, a barrister had been convicted of manslaughter, and sentenced to imprisonment for two years. The Supreme Court concluded that the conviction and sentence constituted grounds in themselves for disbarring the appellant. This Court declined to adopt that view, and considered the facts and circumstances of the case. It was a case where the particularity with which the facts were approached was important to a conclusion as to the barrister's fitness. He had been found guilty of unlawful homicide (in the form of manslaughter) and sentenced to imprisonment. Even when his offence was described with a little more detail, his position was not improved. He had been responsible for the death of a person while driving under the influence of alcohol. Yet, when the circumstances of the case were exposed, the picture changed materially. The appellant, while drinking at a hotel, had been attacked and beaten. He was seriously injured. A sergeant of police advised him to go quickly to hospital. The appellant asked the sergeant to drive him, but the sergeant went away leaving the appellant without assistance. The appellant then set out to drive himself to hospital, and, in the course of the journey, was involved in a fatal collision. The appellant was still in prison when his case was before this Court. The order of the Supreme Court disbarring the appellant was set aside, and an order was made that he be suspended from practice during the remainder of his term of imprisonment.
In Ziems, the conduct of the practitioner which resulted in his conviction and prison sentence had nothing to do with his practice as a barrister. Fullagar J said[24]:
"Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister ... But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former."
37 The Tribunal stated in AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraph 20:
In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest.
38 Having regard to the guidance provided by the authorities set out above, and the facts of this case, I find as follows. It is the Applicant's conviction for the offence of murder which must be considered by the Tribunal in assessing whether he is a fit and proper person to be authorised to drive a taxi cab, not the sentence imposed. Further, the Tribunal may have regard to the circumstances of the offence and what those circumstances indicate ...
39 Regard is also to be had to the Applicant's former good character and the evidence of rehabilitation. The Tribunal is to consider the likelihood of the Applicant re-offending - it is noted that the offending was a singular occurrence, at a young age, that the Applicant has demonstrated genuine remorse and responsibility for the offence. The offence occurred in the circumstances of a night out as detailed above. The Applicant has made significant efforts to rehabilitate himself while in prison, and was a model prisoner and avoided incurring any offences against prison rules/ discipline whilst in prison. All those considerations would appear to indicate that the chance of re-offending is low. The significant support and guidance offered by family members is also a changed circumstance since the offence, which indicates a reduction of risk.
40 The difficulty in the present case is that the psychiatric and professional reports before the Tribunal, evidencing professional assessments of rehabilitation and low risk of offending, are based on conduct in gaol, rather than conduct in the community, and the reports go to whether the Applicant is safe to be released to parole. There is no current psychiatric assessment, of current risk or lack thereof, now he is residing in the community. There is no current psychiatric assessment of his functioning in the community, which assists the Tribunal to form a conclusion that the Applicant is at low risk of violence/further offences.
41 The period where the Applicant has resided in the community is relatively short, although the Applicant continues to have significant family support. I find that it is relevant also that the Applicant would have family support and guidance in performing the regulated activity of taxi driver as his brothers are holders of taxi driver authorities.
42 The evidence does indicate that the Applicant continues to demonstrate his commitment to rehabilitation and integration with the community ...
44 The Tribunal needs to be able to attest to the Applicant's fitness and propriety and repute....
When the factors identified in those cases are applied to the Applicant's circumstances, significant weight must be given to the Applicant's conviction for the offences and to the circumstances of the offences. It is the offence itself, confirmed as it is by the conviction, which must be assessed. There is no doubt that the offences were serious. The Applicant concedes that to be the case.
It is also apparent that if the period of imprisonment to which he was sentenced would have been longer had the Applicant been sentenced for similar offences under current statutory provisions. I do not consider that the relatively short sentence he has served reflects the seriousness of the offences.
I note that the Applicant is still on parole. I note Mr Nicoletti's submission that if the Applicant were to be issued with a licence, then a person dealing with him might assume that he is unburdened by a custodial sentence. However, in the particular circumstances of this matter I do not consider that to be a determinative factor. I accept that most of the clients of the business are aware of the Applicant's conviction for the offences and I note that he is prepared to inform new clients of the conviction if such a condition were imposed.
Balanced against those issues are the factors identified that weigh in the Applicant's favour. These include his former good character, the fact that the offences were unrelated to the work authorised by his licences, his guilty plea, that he is genuinely remorseful, his commitment to rehabilitation and Dr. Lennings' reports suggesting a low risk of re-offending.
In my view, those factors are fairly evenly balanced.
Had there been no other issue for consideration, it is my view that the licences would be granted. However, that is not the case.
In my opinion, the Applicant's lack of candor with the regulator is a factor that is to be weighed against him. The evidence shows that the Applicant was charged with the offences in April 2010. From that time he must have been aware that a conviction was inevitable. It was also likely that he would serve a prison sentence and he should have been aware that there were implications for his licence. In the circumstances, because he intended to plead guilty, it is my view that he should have alerted the regulator to the charges. He did not do so.
Even if there could be doubt about the need to notify the regulator in those circumstances, it is my view that there can be no doubt that he should have notified the regulator once he had been sentenced to a term of imprisonment. He did not do so.
He did not notify the regulator until he needed to do so as part of the licence renewal process. His failure to notify the regulator meant that his licences remained in force even though he was serving a term of imprisonment.
I agree that this is a protective jurisdiction. The legislation that regulates the real estate industry is not only protective of consumers. It also aims to safeguards the public confidence in the industry. A high level of honesty and trust are of paramount importance but candor with the regulator is also required to maintain that public confidence. It is imperative that licensees can be trusted to protect the interests of the community.
The Applicant has had a long history of operating in the real estate industry and there is no evidence of incidents in his role as a licensee that suggest any dishonesty or that he has engaged in conduct that has brought the industry into disrepute. The character evidence provided on his behalf suggests that he is well regarded in his community.
Nevertheless, I agree with Mr Nicoletti's submission that the Applicant has only recently accepted responsibility for the offences that resulted in his convictions. In my view that late acceptance explains his lack of candor.
The Tribunal needs to be able to attest to the Applicant's fitness and propriety. It is my view that this will only be possible after a further period of time in the community in which he is able to demonstrate his good character. However, it not my view that the Applicant must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation and that he has an understanding of the need for candor with the regulator to maintain public confidence in the industry.
On the evidence at this time, I am unable to attest that the Applicant is a fit and proper person to hold these licences. If, after a further period of good behaviour in the community, the Applicant were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered.
However, for the reasons detailed above, at the current time, the Tribunal finds that the correct and preferable decision is that the decision of the Respondent be affirmed.
Order
The decision under review is affirmed
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 13 December 2012
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