Domb v Real Estate Agents Authority

[2016] NZHC 767

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000160 [2016] NZHC 767

IN THE MATTER OF

an Application pursuant to section 3 of the

Declaratory Judgments Act 1908

BETWEEN

LUKE DOMB Plaintiff

AND

REAL ESTATE AGENTS AUTHORITY Defendant

Hearing:	18 April 2016
Counsel:	A O'Connor for Plaintiff M J Hodge for Defendant No appearance required for Real Estate Institute of New Zealand
Judgment:	22 April 2016

SUPPLEMENTARY JUDGMENT OF COLLINS J

Introduction

[1]      This  judgment  supplements  my  judgment  of  10  December  20151   (the substantive judgment) and should be read in conjunction with that judgment.

[2]      In the substantive judgment I issued a declaration that the Registrar is not entitled to require an applicant for an agent’s licence (or renewal thereof) to sign a consent to disclose information held by police about the applicant in the terms set out in cl 1 of the police vetting document which I reproduced in para [10] of the

substantive judgment.

1      Domb v Real Estate Agents Authority [2015] NZHC 3157.

DOMB v REAL ESTATE AGENTS AUTHORITY [2016] NZHC 767 [22 April 2016]

[3]      I concluded however, the Registrar is entitled to request an applicant consent to the police disclosing information held by the police about an applicant concerning three categories of information, namely:

(1)A record of an applicant’s convictions and any sentences, penalties or orders imposed as a result of conviction.

(2)Information that the police have about charges pending against the applicant that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Real Estates Agents Act 2008 (the Act).

(3)A record of any discharges without conviction that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.

[4]      I invited submissions from counsel on how I should frame the terms of the declaration to define what unresolved charges, and what charges which have resulted in a discharge without conviction are relevant to the Registrar’s assessment of whether an applicant is a fit and proper person to hold a licence under the Act.

[5]      I reconvened the hearing on 18 April 2016 to enable counsel to advance their submissions on the specific terms of the declaration.

Submissions

[6]      Counsel for the respective parties adopted conflicting positions about how I

should frame the terms of the declaration.

[7]      Mr  O’Connor,  counsel  for  Mr  Domb,  urged  me  to  set  a  “high  bar”  for disclosure.   He submitted that the declaration should be framed by reference to charges that carry a maximum penalty of seven years or more imprisonment.  During the course of the hearing on 18 April 2016, Mr O’Connor modified his approach and accepted a lower threshold may be appropriate.

[8]      Mr Hodge,  counsel  for  the Real  Estate Agents Authority (the Authority)

submitted that the declaration should encompass:

(1)a record of the applicant’s criminal convictions and any sentences, penalties or orders imposed as a result of conviction, as well as infringement offences committed and any resulting penalty;

(2)       information about any charges pending against the applicant; and

(3)information about any discharges without conviction relating to the applicant and about any diversion or pre-charge warnings given by the police.

Analysis

[9]      Mr O’Connor candidly acknowledged the Registrar should know about some charges that are pending against an applicant and information about some discharges without conviction and diversion.   The challenge for Mr O’Connor was where to draw the line when determining what charges the Registrar should know about.

[10]     Mr O’Connor initially submitted that a line should be drawn between charges that carry a maximum penalty of seven years imprisonment or more and those that fall below that threshold.

[11]     When questioned about his proposed threshold Mr O’Connor was forced to accept that the Registrar might have a legitimate interest in knowing about some charges against an applicant that had still to be resolved, or which have resulted in a discharge  without  conviction  or  diversion  and  which  fall  below  the  threshold Mr O’Connor was proposing.  Examples of charges which have yet to be resolved or which have resulted in a discharge without conviction or diversion, and which the

Registrar may have a legitimate interest in knowing about, include violence2  and

dishonesty3 charges.

2      Crimes Act 1961, s 192, Aggravated assault. Maximum penalty is three years’ imprisonment.

3      Section 230, Taking trade secrets. Maximum penalty is five years’ imprisonment.

[12]     On the other hand, the very broad effect of the declaration proposed by Mr Hodge would undermine those aspects of the substantive judgment in which I recorded that there is a wide range of charges that would not be relevant to the Registrar’s decisions about an applicant’s suitability for registration.   In the substantive  judgment  I  referred  by  way  of  example,  to  charges  under  the Land Transport Act 1998 as not being relevant to the Registrar’s decision.

[13]     In  my  assessment,  the  threshold  for  electing  trial  by  jury  provides  a convenient line of demarcation between charges that might be relevant to the Registrar’s assessment, and charges which are unlikely to be relevant to her assessment.

[14]     I propose, therefore, to issue a declaration that the Registrar is entitled to information that the police have about charges pending against an applicant, and charges that have resulted in a discharge without conviction or diversion only where those charges concern offences in respect of which the applicant may elect trial by jury.

[15]     During the course of the hearing on 18 April 2016, Mr Hodge raised an issue about  infringements.    He  said  that  any  declaration  should  cover  infringements because infringement offences may incur significant penalties.  Mr Hodge cited the penalties that may be imposed under the Plumbers, Gasfitters, and Drainlayers Act

2006, which carry a maximum infringement fine of $50,000.

[16]     Mr O’Connor acknowledged that some types of infringement offences may be relevant  to  the  Registrar’s  assessment  even  when  those  charges  are pending against an applicant, or have resulted in a discharge without conviction or diversion.

[17]     It  is  extremely  difficult  to  identify  an  appropriate  line  of  demarcation between infringement offences that might be relevant and those which are unlikely to be relevant to the Registrar’s determination.

[18]     Ultimately, I have decided that only infringements which carry a maximum

penalty of $10,000 or more might be relevant to the Registrar’s assessment.   The

declaration  will  record  this  conclusion.     This  threshold  provides  a  principal distinction between infringement offences that may be serious and those which are unlikely to be significant.

Conclusion

[19]     The terms of the declaration are:

The Registrar is entitled to request that an applicant consent to the police disclosing information held by the police about an applicant concerning the following categories of information, namely:

(1)A record of an applicant’s conviction and any sentences, penalties or orders imposed as a result of conviction, including any records of findings of liability for an enforcement offence which carries a maximum penalty of $10,000 or more.

(2)Information that the police have about charges pending against the applicant.   Only charges in respect of which the applicant may elect trial by jury or infringement offences that carry a maximum penalty of $10,000 or more need be disclosed.

(3)A record of any discharges without conviction and charges that have resulted in diversion.  Only charges in respect of which the applicant may elect trial by jury or infringement offences that carry a maximum penalty of $10,000 or more need be disclosed.

[20]     The terms of this declaration take effect from 1 June 2016.  This delay has been sought by the Authority to enable it to amend its hard copy and online forms to comply with the terms of this declaration.

[21]     I make no order as to costs in relation to the additional submissions and attendances required in  relation to the hearing that preceded the issuing of this supplementary judgment.  The “honours are shared” in relation to this aspect of the case.

D B Collins J

Solicitors:

Simpson & Co, Mana for Plaintiff

Meredith Connell, Auckland for Defendant