Saul v Department of Fair Trading

[2019] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Saul v Department of Fair Trading [2019] NSWCATAD 161
Hearing dates:	11 July 2019
Date of orders:	14 August 2019
Decision date:	14 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Disciplinary decisions – whether fit and proper person to hold a licence
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Property Stock and Business Agents Act 2002 (NSW)
Cases Cited:	AJO v Director General, Department of Transport [2012] NSWADT 101 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 Jones v Dunkel (1959) 101 CLR 298 Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 Stollznow v Calvert [1980] 2 NSWLR 749 Tolcher v Gordon [2005] NSWCA 135
Category:	Principal judgment
Parties:	Maryellen Saul (Applicant) Commissioner for Fair Trading ( Respondent)
Representation:	Counsel: Mr C Lambert (Applicant)   Solicitors: Morgan Conley Solicitors (Applicant) Fair Trading NSW - Legal (Respondent)
File Number(s):	2018/00349911
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. On 30 August 2018 the respondent issued a determination to take disciplinary action against the applicant under s 198 of the Property Stock and Business Agents Act 2002 (“the PSBA Act”). The disciplinary action was:

1. The licence of the applicant was cancelled under s. 192(1)(g) of the PSBA Act (this comprised a real estate agent, stock and station agent and business agent licence);

2. The applicant was declared to be disqualified from holding a licence or a certificate of registration for the purposes of the PSBA Act for a period of 7 years; and

3. The applicant was disqualified from being involved in the direction, management or conduct of the business of a licensee for a period of 7 years.

2. The applicant sought internal review of this decision. The internal review affirmed the original decision, with the exception that the period of disqualification in (2) and (3) above was reduced from 7 years to two years.

3. The respondent’s decision was stayed by the Tribunal on 22 November 2018 until further order of the Tribunal subject to conditions that:

1. If the applicant is to work in the real estate industry she was to be employed by an appropriately qualified person; and

2. She was not to deal with trust accounts.

4. A number of grounds were relied upon for the purposes of the determination. In these proceedings the respondent relies on the single ground that she is not a fit and proper person to hold a licence (s 191(e)).

The legislation

5. A person must not carry on the business of a real estate agent, or advertise, notify or state that they act or carry on that business or are willing to do so, unless the person is the holder of a real estate agent’s licence ( s. 8 of the PSBA Act).

6. Section 10 provides that a person must not be, remain, represent that they are, act as or exercise any of the functions of a real estate salesperson, stock and station salesperson, business salesperson or registered manager in the employment of a person licensed (or required to be licensed) under the PSBA Act unless the person is the holder of a certificate of registration:

7. Sections 14 to 16 provide:

“14 Eligibility for licence or certificate of registration

(1) A natural person is eligible to hold a licence only if the Secretary is satisfied that the person:

(a) is at least 18 years of age, and

(b) is a fit and proper person to hold a licence and each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and

(c) has the qualifications required for the issue of the licence, and

(d) is not a disqualified person, and

(e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.

(2) A corporation is eligible to hold a corporation licence only if the Secretary is satisfied that:

(a) the corporation is a fit and proper person to hold a licence, and

(b) each director of the corporation is a fit and proper person to hold a licence, and

(c) the corporation, and each officer (within the meaning of the Corporations Act) of the corporation, is not a disqualified person, and

(d) at least one of the directors of the corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on, and

(e) the corporation has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.

(3) A person is eligible to hold a certificate of registration only if the Secretary is satisfied that the person:

(a) is an individual who is at least 16 years of age, and

(b) is a fit and proper person to hold a certificate of registration, and

(c) has the qualifications required for the issue of a certificate of registration of the type concerned, and

(d) is not a disqualified person.

Note. The grounds of disqualification in section 16 (1A) do not disqualify a person from eligibility to hold a certificate of registration.

(4) The requirement that at least one of the directors of a corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on does not require a director to be accredited as an auctioneer under section 21 merely because the corporation carries on or proposes to carry on the business of an auctioneer.

15 Qualifications for licence or certificate of registration

(1) The qualifications required for the issue of a licence or certificate of registration are such qualifications as the Minister may approve from time to time by order published on the NSW legislation website.

(2) Without limiting the Minister’s power to approve qualifications, the Minister may approve qualifications by reference to any one or more of the following:

(a) the completion of a course of study,

(b) the completion of a period of training in a particular activity,

(c) the attainment of a standard of competency in a particular activity,

(d) satisfaction of professional development requirements.

(3) Qualifications may be approved for a limited range of activities specified in the approval, so as to enable a person who has those qualifications to be granted a licence or certificate of registration subject to conditions that limit the person to exercising the functions of licensee or certificate of registration holder in relation to that limited range of activities only.

(4) A person does not have the qualifications required for the reissue or restoration of a licence or certificate of registration (as provided by section 26) if the person failed to comply with any condition of the licence or certificate of registration that required the holder to undertake professional development, continuing education or a course of study, unless the Secretary otherwise determines in a particular case.

16 Disqualified persons

(1) A person is a disqualified person for the purposes of this Act if the person:

(a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or

…

(2) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

(2A) The Secretary may, in any case that the Secretary thinks it appropriate to do so, determine that a suspension or disqualification from holding a licence, permit or other authority under legislation administered by the Minister (as referred to in subsection (1) (h)) is to be ignored for the purposes of this section.

…”

8. Section 191 provides:

“191 Grounds for disciplinary action

Disciplinary action under this Part can be taken against a person who is or was the holder of a licence or certificate of registration on any one or more of the following grounds:

…

(e) the person is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee,

…”

9. Section 192 provides:

“192 Disciplinary action

(1) Each of the following actions is disciplinary action that the Secretary can take against a person under this Act:

(a) caution or reprimand the person,

(b) give a direction to the person requiring the person to give a specified undertaking to the Secretary as to the manner in which the person will conduct business or exercise functions under a licence or certificate of registration held by the person,

(c) give a direction to the person requiring the person to take specified action within a specified time in connection with the conduct of business or the exercise of functions under a licence or certificate of registration,

(d) impose a monetary penalty on the person of an amount not exceeding 100 penalty units in the case of an individual or 200 penalty units in the case of a corporation,

(e) impose a condition on the person’s licence or certificate of registration,

(f) suspend the person’s licence or certificate of registration for a period that does not exceed the unexpired term of the licence or certificate of registration,

(g) cancel the person’s licence or certificate of registration,

(h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period,

(i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee.

(2) A power conferred by this Act to take disciplinary action against a person is a power to take any one or more of the actions that constitute disciplinary action.

(3) When a licence or certificate of registration is suspended, it is taken not to be in force except for such provisions of this Act or the regulations as the regulations may prescribe as provisions that remain applicable to a suspended licence or certificate of registration.”

10. Section 200 of the PSBA Act provides that a person against whom disciplinary action is taken may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act).

11. Section 63 of the ADR Act sets out the Tribunal’s powers when determining an administrative review:

“63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

Background to the disciplinary action

12. The following matters are not in dispute.

13. The applicant was convicted under her married name of Brady on 31 October 1994 of conspiracy to cheat and defraud and attempt to pervert the course of justice. She pleaded not guilty and defended the charges at trial. She received a custodial sentence of 3 years periodic detention in respect of each charge. Following being assaulted while in prison she was released from prison on parole on 16 November 2000 and the parole order expired on 16 August 2003.

14. On 17 September 2003 the applicant pleaded guilty to three counts of managing a corporation while disqualified between 2000 and 2003.

15. On 10 September 2007 she applied to the Commissioner of Fair Trading for an individual Real Estate Agent’s licence and this was issued in November 2007.

16. In 2008 she was issued with a Stock and Station agent’s licence after this was originally refused.

17. The applicant was married to a Garry Burling in 1998 who was a director of Burling Realty Commercial and Residential Sales Pty Ltd (Burling Commercial) and Burling Realty Pty Ltd. The applicant was a director of Burling Commercial at times between 2011 and 2017 and of Burling Realty between November 2015 and December 2017.

18. In 2014 managers were appointed by the respondent to Burling Commercial and to Burling Realty. The appointment was terminated in about February 2016.

19. In May 2016 the respondent served the applicant with Court Attendance Notices relating to four charges. Between 2016 and February 2017 two charges were withdrawn by the respondent and the remainder were dismissed in February 2017 and the respondent paid a sum in respect of the applicant’s legal costs.

Evidence relating to the licence and certificate applications between 2007 and 2012

20. The applicant said that she was born Mary Ellen Saul and she married Michael Brady in 1968. They were divorced in September 1987. She married Garry Burling in 1998. She said that she did not adopt the name Burling in business or professional dealings and few people knew her by that name.

21. In 1998 she engaged a solicitor, Venus Cassimaty, who was her legal adviser for family and business matters until 2010. Ms Cassimaty is now deceased.

22. She was qualified in Accounting and had been employed most of her life, including as a Finance Director. She had roles in real estate and property development. She had been a director of a number of corporations between 2006 and the present.

23. It is not in dispute that the applicant had submitted to the respondent, in the name of Maryellen Saul, an application for a certificate of registration under the PSBA Act which she signed on 30 April 2007. On that form the section headed “Other names you are, or have been known by (if any, including maiden name)” was left blank. The form also asked “Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?” The box marked “No” next to this question was ticked.

24. On 10 September 2007 she signed an application for accreditation as an auctioneer and for a buyer’s agent and real estate agent’s licence, also in the name of Maryellen Saul. This application form had an identical question regarding other names she may have had which was also left blank on this form. The form had identical disclosure questions and the question “Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?” was marked “No”.

25. On 19 November 2007 the applicant signed an application for a business agent’s licence. This application was in the name of Maryellen Saul. As before the applicant did not disclose any convictions on the form or any other names.

26. On all forms the applicant signed a declaration which stated: “I…certify that the particulars specified in this application and all attachments are, to the best of my knowledge, true and correct in every detail”. The forms also contained a Note stating: “It is an offence under the Crimes Act 1900 to make a false or misleading statement in this document. The maximum penalty is imprisonment for two years or a fine of $22,000 or both.”

27. The applicant had been convicted in 1994 and 2003 as noted above. While the 1994 conviction had occurred more than ten years ago at the time she signed the forms, the 2003 conviction had not. In addition, the applicant did not disclose the names of Brady and/or Burling as names by which she had been known.

28. The applicant’s explanation for not disclosing the names was that firstly, she had been divorced from Michael Brady in 1987 and she had ceased using the name from that time. While she was married to Mr Burling, she did not use his name professionally or in business.

29. Secondly, she said that she had been relying on her solicitor to ensure that the forms were correct. Her solicitor had represented her in the 2003 proceedings. She said that the forms were filled out in her solicitor’s office and any telephone calls she had with the respondent were held in the solicitor’s office on loudspeaker. While at first she said that the solicitor would not have told her that she did not have to disclose her convictions, she then said that her solicitor told her that she didn’t have to disclose the 2003 convictions because they “rolled on” from the earlier convictions and did not have to be disclosed because it was “automatic”. She accepted now that what she had been told was wrong.

30. The applicant said a letter dated 5 October 2007 from the applicant to the respondent which referred to the application for a real estate agent’s licence was signed by her but said the letter was produced in her solicitor’s office, although it was not on the solicitor’s letterhead.

31. The applicant said that she did not recall speaking to an officer of the respondent about this application, but if she had done so, she would have done so in her solicitor’s office. She later said that she recalled having a conversation with an officer of the respondent in her solicitor’s office with Ms Cassimaty present. She said that Ms Cassimaty told her what to say. She would have given the cheque for the fee to her solicitor to send.

32. Another letter dated 19 November 2007 from the applicant to the respondent was on Burling Realty letterhead and referred to advice received on the telephone from an officer of the respondent. The letter did not refer to the solicitor. The applicant said this letter was produced in her solicitor’s office and said she carried letterhead with her for this purpose. She could not remember a telephone conversation with the respondent’s officer.

33. On 19 March 2008 the applicant signed a form applying for a licence as a Stock and Station Agent. This application form had an identical question regarding other names which was also left blank on this form. The form had identical disclosure questions and the question “Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?” was marked “No”.

34. On this from the applicant signed a declaration which stated: “I…certify that the particulars specified in this application and all attachments are, to the best of my knowledge, true and correct in every detail”. The form also contained a Note stating: “It is an offence under the Crimes Act 1900 to make a false or misleading statement in this document. The maximum penalty is imprisonment for two years or a fine of $22,000 or both.”

35. The applicant signed a letter to the respondent regarding this licence application which stated: “Thank you for your advice on the telephone regarding the adding to my current licence of Stock and Station agent.” The applicant said that the conversations she had with the respondent were held in her solicitor’s office on loudspeaker with her solicitor present and her solicitor was involved and advising her on all these applications.

36. In May 2008 it appears that the respondent became aware that the applicant had a criminal record in NSW in the name of Maryellen Brady. She was asked to provide further information and the respondent made its own enquiries. An email from one officer of the respondent, Soon Kang, to another officer, Peter van Ravenstein, dated 9 May 2008 stated:

“Received a call from Maryellen. I asked her “Have you been known by another name?”

She said “No.””

37. Of this note, the applicant said that she did not believe it “for one minute” and did not recall having the conversation.

38. The applicant said she did not have any documents such as invoices to support her claim that her solicitor handled these matters for her. She said she had recently asked the firm where her solicitor had worked, for files relating to the matters Ms Cassimaty handled for her but was told they no longer existed. She herself had not kept any files beyond the required seven years. She agreed that all the 2007 correspondence regarding her licence applications was addressed to her at her address, but said that she took the correspondence and forms into her solicitor’s office and filled them out there. She said her 2008 application for a Stock and Station agent was filled out in front of her solicitor who told her it was not necessary to include the 2003 convictions. The applicant said that she had not been aware that she could not manage a corporation for a period after her 1994 convictions.

39. It was evident that the applicant feels strongly that her 1994 conviction was unjust. In her affidavit she said she maintained her innocence, despite being found guilty of the charges. In particular she claimed that she would maintain her innocence of the charge of attempting to pervert the course of justice to her grave. However she later qualified this advice by stating that she accepted her guilt of the 2003 charges and did not shrink from her duty to complete the forms accurately and accepted responsibility for signing them.

40. The applicant was also aggrieved by the appointment of managers to Burling Commercial and Burling Realty by the respondent in 2014 as she maintained that they mismanaged the affairs of the companies during the appointment. She also maintained that the respondent had unduly delayed her prosecution commenced in May 2016. The charges were either withdrawn or formally dismissed on 20 February 2017.

41. There was evidence from 2008 onwards that Ms Cassimaty corresponded with the respondent regarding her applications and provided information about her other names and the 1994 convictions. None of the correspondence or the internal files produced by the respondent refer to the 2003 convictions. A file note made by a Peter Van Ravenstein, officer of the respondent dated 30 October 2008, regarding a conversation with the applicant’s solicitor stated that the solicitor had informed him of her client’s other names and that the criminal convictions “was a matter a long time ago” and that “parole ceased in August 2003 and there have been no other matters since that time.” He stated:

“I have forwarded an application form to Venus and advised that her client would need to complete the form, stating all other names known by and I would process the application ASAP.”

42. If the solicitor told Mr Ravenstein there had been no criminal matters affecting her client since August 2003, that was incorrect, as the applicant had pleaded guilty to the charges of managing a corporation while disqualified in September 2003. A letter from Ms Cassimaty to the respondent dated 21 October 2008 stated that “Ms Brady’s parole [for the 1994 convictions] expired on 18 August 2003 with no further obligations” but also said nothing about the 2003 convictions.

43. On 6 November 2008, following the conversation described in the file note, the applicant’s solicitor re-submitted an application for a licence under the PSBA Act on behalf of the applicant. On that form the applicant gave her names as Maryellen Saul, Maryellen Brady and Maryellen Burling. Her evidence to the Tribunal was that her solicitor had advised her to do that. She did not however disclose her 2003 convictions on the form. In my view, the evidence supports a finding that the respondent processed and granted the application in 2008 without any knowledge of the 2003 convictions.

44. The applicant stated in her affidavit:

“…whilst I admit that the 2003 Conviction was not disclosed in any application for a Certificate of Registration, Application for a Licence, it was always my understanding that my then solicitor, Ms Cassimaty had discussed this conviction with the respondent.”

45. The applicant was also asked about other applications she had submitted to the respondent for a company contractor licence in the name of Building Services Corporation Pty Ltd in 2009. The form listed Maryellen Saul as a director and stated that the class of work to be carried out was Carpentry. That form asked at Question 9:

“In addition to holding appropriate qualifications, all applicants must demonstrate they are a fit and proper person. Please respond to all questions below by placing an “X” in the appropriate box. If you respond “Yes” to any question, please complete an “Additional Details Form” to assist in the prompt assessment of your application.”

46. Next to “Have you ever been known by any other name/alias?” the box marked “No.” was ticked.

47. Next to “Have you, in the last 10 years, had a conviction for a criminal offence recorded, or are you now subject to a bond, or have a criminal charge pending?” the box marked “No” was ticked.

48. The form noted:

“Before signing your declaration please note the following penalties for false or misleading statements:

Under s. 307A of the Crimes Act 1900 a person is guilty of an offence if she/he makes a false or misleading statement in an application for an authority or benefit. The penalty for false or misleading application is imprisonment for 2 years, or a fine of $22,000 or both….

I/We the applicant(s) for this licence understand that:

It is a criminal offence under the Crimes Act 1900 to deliberately make false or misleading statements. …

I declare that the statements made in this application are true and correct.”

49. The applicant explained this by saying that she only filled out part of the form and the rest including the answers to the questions about criminal convictions were completed by the person who was nominated as the Qualified Supervisor and she had just signed it. She said her grandchild was ill at this time and she had been remiss and should have checked it. It later emerged that her grand-daughter was not yet born in 2009. It was submitted she was speaking generally about the stress she was under.

50. Another similar licence application dated 2012 by the applicant for the same company also did not disclose the applicant’s other names or convictions. The applicant said that at this time she was under pressure due to family illness. She said she did not fill out the form and accepted it was not correct.

51. In support of her claim that she is a fit and proper person, the applicant points to:

1. The length of time which has passed since her convictions.

2. The fact that she was subjected to a prosecution by the respondent which was eventually withdrawn/dismissed.

3. She has otherwise had an exemplary record.

4. She was put under pressure by the appointment of managers to the companies which led to adverse publicity and loss of income, and also precluded her from engaging in her usual business activities.

5. She has suffered personal loss through the death of a grand-daughter who was diagnosed with leukeaemia on 30 December 2010 and had to undergo chemotherapy, radiation and surgery between 2011 and 2014. The applicant was actively involved in her grand-daughter’s care between September and October 2014 at her home and she died on 21 October.

6. Her mother’s dementia worsened after October 2014 and the applicant was actively and intensively involved in her nursing and care for five months until her death on 30 March 2015.

7. She has been involved in fundraising for the Leukaemia Foundation, children with cancer and drought-affected farmers. She has implemented a program in the Tweed region working with people to cook and deliver meals to those who need it.

52. Character references from Margaret Lynn O’Hara and Cheryl Cooper were in evidence. They testified to the applicant’s volunteer work with children, literacy and drought-affected farmers. Ms Cooper said that she considered the applicant was a very honest, trustworthy and reliable person despite her convictions and would continue to have a personal and business relationship with her.

Whether the applicant is a fit and proper person to hold a licence or certificate

53. Whether a person is fit and proper has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; AJO v Director General, Department of Transport [2012] NSWADT 101 at [26-28] and [33] ). In Australian Broadcasting Tribunal v Bond [1990] HCA 33 it was explained by Chief Justice Mason at [63]:

“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.”

54. In the same case, Toohey and Gaudron JJ said at [36]:

“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.”

55. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

“In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.”

56. In Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Senior Member Montgomery commented:

"The legislation that regulates the real estate industry is not only protective of consumers. It also aims to safeguard the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour 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."

57. The respondent submitted that the applicant was not a fit and proper person because:

1. She continues to dispute her convictions in 1994, which were for serious criminal offences.

2. She failed to disclose her 2003 convictions in 2007, 2008, 2009 and 2012 when required to do so in applying for licences.

3. She failed to disclose her previous names in an attempt to obfuscate the respondent and prevent the discovery of her criminal record.

58. The respondent submitted that the forms are not complex or ambiguous and did not require legal advice, and that her claims that she relied on her solicitor’s advice should not be believed. On the available evidence, the most likely scenario was that Ms Cassimaty did not become involved until the respondent queried the applicant’s 1994 convictions in 2008. The respondent submitted I should take into account that she had not tendered any documentary or witness evidence of what services Ms Cassimaty had provided in relation to the licences, or the destruction of her solicitor’s files, apart from her own account. This could lead to an inference that the evidence which was absent would not have assisted her case had it been presented ( Jones v Dunkel (1959) 101 CLR 298).

59. However Ms Cassimaty is deceased, no other witness was identified by the respondent, and the rule in Jones v Dunkel applies only to witness evidence. For that reason I have not drawn any inferences.

60. In any event the applicant signed the forms and was responsible for their content. The later forms also had similar omissions, and this was some time after she had been told on her own account that the previous names should be disclosed.

61. The applicant’s counsel submitted that she had given consistent explanations for her conduct and her evidence should be accepted. The Tribunal should find that her solicitor told her that the 2003 convictions did not have to be disclosed as this was consistent with the documentary evidence available. There was no evidence that the applicant wrote the earlier correspondence herself. In respect of the Building Services Corporation forms, the evidence was that she was under stress for a period of time and was not accomplished in understanding the detail of the forms.

62. He submitted that there was no obligation on her to disclose the 1994 convictions and it was reasonable for her not to regard Brady as one of her names in 2007 as it was 20 years since she had been divorced. The forms were not straightforward and she had displayed contrition and acceptance of her mistakes, which could be attributed in part to her solicitor. She should not be punished for those errors (Tolcher v Gordon [2005] NSWCA 135 and Stollznow v Calvert [1980] 2 NSWLR 749).

63. It was submitted that it is 24 years since the 1994 convictions and there have been no other matters since the 2003 convictions. There have been no complaints about her while she held a licence. Her charitable activities and references show that she is of good character. The matters on which the respondent now relies to deny her the licence go back a number of years and in this regard s16(2) of the PSBA Act is relevant, as it allows the respondent to determine that an offence should be ignored because of the time that has passed since the offence was committed. A similar approach should be applied to her omissions on the forms. The Tribunal should set aside the internal review decision and grant the application for a stock and station agent, real estate and business agent licence.

Consideration

64. With regard to the 1994 convictions, they occurred over twenty years ago and while they involved serious charges relating to dishonesty, if the applicant’s later conduct had been exemplary they would not have carried great weight. The 2003 convictions are more recent and must be taken into account. While they are not in themselves offences of dishonesty, they concern duties which are relevant to the activities which she would carry out as a real estate agent, business agent and stock and station agent.

65. As stated in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] by Judicial Member Molony, the Tribunal is required to consider:

“… the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant’s fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant’s explanation of the misconduct, the impact of the effluxion of time and the applicant’s present circumstances and reputation.”

66. Honesty and trust are of paramount importance in the real estate industry (Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 at [44]).

67. The main issues to be determined relate to:

1. The applicant’s repeated failure to disclose her 2003 conviction and her previous names on the applications forms; and

2. Her credibility as a witness in these proceedings.

68. With regard to the first issue, it is difficult to understand why the applicant would not have disclosed her other names even if she did not use them professionally, unless she had some reason for not doing so. Even after she became aware of the need to do so, she repeated this conduct. She may have been stressed at the time. However, given that she was refused a licence previously for the same reason, I find it difficult to believe that she would not pay attention to it on subsequent occasions.

69. I accept that between 10 and 7 years have passed since these occurrences, but I have not seen any evidence to support a finding that she would behave with greater care in the future.

70. In relation to the second issue, whether the applicant’s evidence can be believed is crucial. There is very little evidence to support her explanations for not disclosing her prior names and convictions on numerous occasions and some evidence which contradicts it.

71. In this regard, I did not find the applicant’s evidence convincing and I formed the view that she was describing matters as she wished to see them, rather than as they were. This was evident in her blunt denial of the telephone conversation in May 2008. I accept the file note of that telephone conversation as a truthful account, as there was no reason for the officer to lie. Her credibility was also diminished by changing her evidence. She initially said that her solicitor did not advise her not to disclose her 2003 convictions, and would not have done so, but then said later that she told her that they did not have to be disclosed.

72. The applicant said she assumed that Ms Cassimaty had told the respondent of her 2003 conviction, although even on her own evidence Ms Cassimaty did not expressly tell her that she had done so, and the documentary evidence was to the contrary. Moreover it is unclear why Ms Cassimaty would disclose the convictions if she had advised the applicant that it was not necessary to disclose them, which makes the explanation less credible.

73. The applicant’s evidence that she filled out all the forms and made the telephone calls in her solicitor’s office, is difficult to credit and even if true, does not excuse her from the responsibility to provide accurate information on the forms. She emphasised that her solicitor later rectified the information on the forms, but she did not seem to learn from this experience, repeating the same errors later, whether deliberately or recklessly. This is extremely careless behaviour from someone who has previously been convicted and knows the potential consequences.

74. For the reasons set out above, I do not have the requisite satisfaction that she can currently be presented to the public as a person who will act with the integrity required of a licence holder, nor one who has a knowledge of the requisite duties and responsibilities that relate to the licence.

75. In the circumstances I consider that the internal review decision was the correct decision and it should be affirmed.

Order

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 August 2019