Real Estate Agents Authority v Luke Domb - [2017] NZCA 199

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/2016
[2017] NZCA 199

BETWEEN	REAL ESTATE AGENTS AUTHORITY Appellant
AND	LUKE DOMB Respondent

Hearing:	2 May 2017
Court:	Miller, Gilbert and Katz JJ
Counsel:	M J Hodge and E A Mok for Appellant A OʼConnor and C OʼConnor for Respondent K Raftery QC and L Gerrard for Real Estate Institute of New Zealand as Intervener
Judgment:	23 May 2017 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed. The Registrar may not require applicants to undergo police vetting (as described at [25] – [26]) or hold their refusal to submit against them. She may require that applicants authorise disclosure of their criminal history (as defined at [30]), and she may make specific inquiries of the police to elicit information that she reasonably considers relevant to her decision whether the applicant is a fit and proper person to hold a licence.
BThe appellant must pay the respondent’s costs for a standard appeal on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

May the Registrar of the Real Estate Agents Authority insist that a person seeking or renewing a real estate agent’s licence submit to full police vetting, which extends to disclosure of anything the police know about the person in whatever capacity?
Applicants must authorise disclosure of their criminal history.[1] The Registrar justifies vetting, which may go much further, by saying that it may sometimes produce information relevant to her decision whether an applicant is a fit and proper person to hold a licence.
[1]Real Estate Agents Act 2008, ss 36–38; and Real Estate Agents (Licencing) Regulations 2009, sch 2 form 1.
The legislation says nothing about vetting. The Registrar required that applicants sign a form authorising it. The form was not prescribed in the relevant regulations, the Real Estate Agents (Licensing) Regulations 2009. The Registrar used it because the police vetting unit insisted that the form that is prescribed, which authorises “inquiries to, and the exchange of information with, the authorities”, does not go far enough.[2]
[2]Real Estate Agents (Licencing) Regulations, sch 2 form 1.
This is a test case. The respondent, Mr Domb, is a licensed agent who believes the Registrar overstepped her authority by insisting on police vetting. When renewing his annual licence in 2013 he refused to sign the form. The Registrar responded that she could not be satisfied he was a fit and proper person. He then submitted on a without prejudice basis and his licence was granted. There is no dispute about his fitness to hold a licence.
The Real Estate Agents Disciplinary Tribunal agreed with Mr Domb that the Registrar exceeded her authority by insisting on the form.[3] The Registrar responded by modifying her requirements. She asked applicants to sign the vetting form and stated that although it was not compulsory, refusal to sign it might be taken into account when deciding their applications. In Mr Domb’s case she told him, on a subsequent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZCA 199
Decision Date: 23 May 2017 at 2.30 pm

CaseChat Overview and Summary

Real Estate Agents Authority v Luke Domb was an appeal by the Real Estate Agents Authority (the Authority) against a decision of Collins J, who had held that the Registrar of the Authority (the Registrar) did not have the lawful authority to require applicants to consent to police vetting as a condition of obtaining or renewing a real estate licence. The Court of Appeal allowed the appeal in part and dismissed it in part, finding that while the Registrar could require applicants to authorise disclosure of their criminal history, she could not require applicants to sign a police vetting form or demand that unless they did so she would reject their applications for want of information. The Court found that the Registrar's authority was limited to requiring applicants to make specific inquiries aimed at eliciting information that she reasonably thought relevant to her decision whether the agent was a fit and proper person to hold a licence. The Court held that the Registrar was without lawful authority to require that applicants sign the police vetting form and that she was also without authority to demand that unless applicants did so she would reject their applications for want of information, or hold their refusal against them. The Court found that the Registrar's powers were limited to requiring applicants to authorise disclosure of their criminal history, as defined by the Court, and making other specific inquiries of the police to elicit information that she reasonably considered relevant to her decision whether the agent was a fit and proper person to hold a licence.

The Court of Appeal held that the Registrar may require applicants to authorise disclosure of their criminal history, which includes convictions, discharges without conviction, and diversion, but does not include pending charges or any interaction with the police in a capacity other than that of a defendant. The Court found that the prescribed forms do not authorise full police vetting and that the Registrar is without lawful authority to require applicants to sign the police vetting form. The Court held that the Registrar may make specific inquiries of the police to elicit information that she reasonably considers relevant to her decision whether the agent is a fit and proper person to hold a licence. The Court emphasised that the Registrar must not require agents to sign the police vetting form as a matter of course and that if she thinks routine vetting is necessary, she should ask the legislature to amend the Act. The Court found that the Registrar's appeal was allowed in form but that in substance, Mr Domb must be considered the successful party. Mr Domb was awarded costs for a standard appeal on a Band A basis with usual disbursements, payable by the Authority.

Orders