Cater v Auctioneers and Agents Committee [1999] QDC 25

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND [Before Forde DCJ] [MR Cater v Auctioneers and Agents Committee] Appeal No 4782 of 1997 BETWEEN: MATTHEW ROBERT CATER Appellant AND: AUCTIONEERS AND AGENTS COMMITTEE Respondent JUDGMENT Judgment delivered: 2 March 1999 Catchwords: Appellate jurisdiction. Auctioneers and Agents Act 1991, sections 25 and 40(7)(c). Granting of a provisional licence. Discussion of ‘fit and proper person’ and ‘good fame and character’ after criminal convictions. Exemptions under the Criminal Law (Rehabilitation of Offenders) Act 1986. Counsel: Mr D.J. Campbell for appellant. Mr S. Horneman-Wren for respondent. Solicitors: Broadley Rees for the appellant. Crown Solicitor for the respondent. Hearing Date: 27 February 1999 -- 1 of 17 -- -- 2 of 17 -- IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Appeal No 4782 of 1997 BETWEEN: MATTHEW ROBERT CATER Appellant AND: AUCTIONEERS AND AGENTS COMMITTEE Respondent REASONS FOR JUDGMENT -FORDE D.C.J. Delivered the 2nd day of March 1999 The appellant, Matthew Robert Cater, appeals from a decision of the Auctioneers and Agents Committee , the respondent to this appeal. The appeal is pursuant to section 17 of the Auctioneers and Agents Act 1991 (“the Act”). By an application dated 13th day of July 1997, the appellant sought to obtain a provisional auctioneer’s licence pursuant to sections 25 and 40 of the said Act. Section 40(7) provides as follows: “A provisional Auctioneer’s licence, or the renewal or restoration of a provisional auctioneer’s licence shall not be granted to an applicant who - (a) ... (b) ... (c) is not a person of good fame and character; or (d) is not a fit and proper person to hold such a licence.” -- 3 of 17 -- 2 The respondent has stated that it is not satisfied that the appellant is a fit and proper person within the meaning of section 40(7). The reason given is that he failed to disclose a previous conviction. Factual Background In assessing an application made under section 25 of the said Act, the Registrar may obtain a report from the Commissioner of the Police Service in respect of an applicant. The Registrar is required to report to the respondent upon the fame and character and qualifications of the applicant. On or about 24th day of July 1997, the Registrar obtained a report from the Commissioner of the Queensland Police Service which indicated that the appellant had been convicted of a criminal offence in Queensland. Prior to this date, the appellant had sought from time to time a certificate as a motor salesperson. Exhibit GL24 is such an application and is dated 8th September 1996. A question is asked in that application in the following form: “Have you ever:- been found guilty of an offence which is not exempt from disclosure under the Criminal or (Rehabilitation) Offenders Act 1986?” In the notes to the application, an applicant “who is convicted, but not on indictment (and a conviction has not been revived), is not required to disclose that conviction once five years has passed since the date the conviction was recorded or where a court order concerning the conviction has not been satisfied within five years, a period terminating on the date the order is satisfied whichever period is the later to expire.” In the subsequent application for the provisional auctioneer’s licence, a question was asked of the appellant whether the following applied to him: -- 4 of 17 -- 3 “Found guilty of an offence which is not exempted from disclosure under the Criminal or (Rehabilitation of Offenders) Act 1986.” The Applicant answered in the negative. That is to be found in Part 13 of Exhibit GJL13. In Part 18, there is an assurance given by the appellant that “I have checked the answers I have given and state they are true and correct in every detail. Note: It is a serious offence to supply incorrect or misleading information.” This was signed by the appellant and dated as mentioned previously on 13th July 1997. Further, on 6th August 1997, the appellant was advised that some information had been obtained that a person fitting his description had been convicted of an offence in New South Wales. The appellant gave consent to the Australian Federal Police to provide details of criminal charges involving him to the Office of Consumer Affairs (Exhibit GJL13). It should be noted that on the application for an individual licence, similar details were provided in relation to the Criminal or (Rehabilitation Offenders) Act 1986 save that it said that “all convictions must be disclosed except in the following circumstances....” It is not submitted that the use of the term “convictions” is of significance in the present case. Exhibit GJL13 signed by the appellant provided details of two offences: “insulting words - Bne Qld 1995 indecent assault - Byron Bay NSW 1996.” -- 5 of 17 -- 4 It was only after the appellant had been informed that the respondent had details of these offences that the appellant gave the consent to the Registrar to make further enquiry. No other offences were mentioned. As at that time, the following offences had been committed by the appellant: Date- Court- Offence- Result- 10.10.96BYRON BAY LOCAL INDECENT ASSAULT.2/RECOGNISANCE s.558 - $500 COMMON ASSAULT 3 YEARS SUPV NSW PROB SERVICE. FINE $1,000. COSTS COURT $50. 2/ FINE $500. 27.02.95BRISBANE MC INSULTING WORDS CONVICTED AND FINED $50. 27.02.95BRISBANE MC REFUSING TO MAKE CONVICTED AND FINED $100. PAYMENT OF LAWFUL TAXI FARE 14.03.93BRISBANE MC REFUSING TO MAKE CONVICTED AND FINED $75. PAYMENT OF LAWFUL TAXI FARE 02.09.91BRISBANE MC WILFUL AND UNLAWFUL PROBATION 12 MONTHS, DESTN OF PROPERTY COMMUNITY SERVICE 80 HOURS, RESTITUTION $736. 6.10.90 BRISBANE MC DRIVING WHILST UNDER CONVICTED AND FINED THE THE INFLUENCE OF LIQUOR SUM OF $1,000. OR A DRUG. 31.03.89BRISBANE MC FOUND IN AN ENCLOSED COMMUNITY SERVICE 80 YARD WITHOUT LAWFUL HOURS EXCUSE 27.01.89BRISBANE MC BEHAVING IN AN INDECENT CONVICTED AND FINED $50. MANNER. (URINATING) Effect of the Criminal Law (Rehabilitation of Offences) Act 1986 (“1986 Act”) It is argued by the appellant’s counsel that the charges heard in Byron Bay on the 10th day of October 1996, are deemed to be simple offences for the purposes of s.11(2) of the 1986 Act. It follows that those charges do not revive the rehabilitation period applicable to the earlier -- 6 of 17 -- 5 offences, and that the appellant was technically correct in not disclosing offences that occurred more than five years previously. Section 11 of the 1986 Act provides as follows: “11(1) Subject to subsection (2), where a person who has incurred a conviction - (a) in relation to which the rehabilitation period is running; or (b) in relation to which the rehabilitation period has expired; is again convicted for an offence whether in Queensland or elsewhere - (c) in the case referred to in provision (a) - the rehabilitation period in relation to that conviction shall commence again to run on the date the offender is again convicted and any part of the rehabilitation period that elapsed between that conviction and that date shall be disregarded; and (d) in the case referred to in provision (b) - that conviction shall be taken to be revived and the rehabilitation period in relation to that conviction shall commence again to run on the date of the revival of that conviction. (2) Subsection (1) shall not apply where the offence for which a person is subsequently convicted is a simple offence or a regulatory offence of an offence that if committed in Queensland would be a simple offence or a regulatory offence or an offence in respect of which the offender could be dealt with in summary proceedings unless the court by which the person is subsequently convicted is satisfied that, having regard to the public interest, previous convictions recorded against the person, or any of them, should be revived and pronounces accordingly in its order.” The “rehabilitation period” is defined by the Act as follows: “(a) ... (not applicable) (b) in relation to a conviction recorded against a person where paragraph (a) does not apply - (i) a period of 5 years commencing on the date the conviction is recorded; or -- 7 of 17 -- 6 (ii) where an order of a court made in relation to the conviction has not been satisfied within the period of 5 years - a period terminating on the date the order is satisfied; whichever period is the later to expire.” “Simple offence” under the Act means: (a) an offence committed in Queensland other than a crime, misdemeanour or regulatory offence; and (b) an offence committed elsewhere than in Queensland that, if committed in Queensland, would be an offence other than a crime, misdemeanour or regulatory offence.” Section 6 of the said Act provides that if the rehabilitation period has expired in relation to a conviction, and the conviction has not been revived in respect of the person, then that person is not required to disclose a conviction except in certain circumstances which are not relevant to the present case. As pointed out by the appellant’s counsel, the question is whether the convictions at Byron Bay for indecent assault and common assault were simple offences. Reference was made to the definition of a “simple offence” within the meaning of section 4 of the Justices Act 1886: “means any offence (indictable or not) punishable, on summary conviction before a magistrate by fine, imprisonment or otherwise.” Section 659 of the Criminal Code provides: “When a person has been summarily convicted of a indictable offence, the conviction is to be deemed to a conviction of a simple offence only, and not of an indictable offence.” Counsel for the respondent pointed out that although indecent assault may be dealt with summarily in New South Wales under section 61L of the Crimes Act 1900, a magistrate cannot deal with such an offence summarily in Queensland. Section 552B(1)(i)(B) specifically exclude -- 8 of 17 -- 7 assault of a sexual nature being dealt with summarily. I therefore accede to the submission that the indecent assault charge committed in New South Wales was not a “simple offence”within the meaning of section 3 of the Criminal Law (Rehabilitation of Offenders) Act 1986. The effect of the conviction for indecent assault in New South Wales was to revive the rehabilitation period for all previous convictions pursuant to section 11(1) of the 1986 Act. The proviso contained in section 11(2) of the 1986 Act is not applicable. Issues for Determination Exhibit GJL4 is a summary sheet relevant to the meeting of the respondent in relation to the appellant’s application. The reasons for the refusal are given as follows: “S40(7)(d) re fit and proper (application did not disclose offence of 10/10/96)” The appellant did, after request, provide an explanation as to what occurred on 25th February 1997 in relation to the dispute of the taxi driver. “On the 25th day of February 1997, I was involved in an argument with a taxi driver while driving along Caxton Street, Paddington. When the taxi was stationary at traffic lights, a police car pulled up alongside and noticed the argument taking place. I was subsequently charged with insulting words and fined $50 (Fifty Dollars).” The appellant made no attempt to explain the events at Byron Bay. It is contended by counsel for the respondent that the appellant failed to make full disclosure until he swore his affidavit on 15th February 1999 in these proceedings. It was only then, for example, that he confirmed what was then known by the Registrar. The only relevant offence the respondent dealt with at the time of this application seemed to be the offences which occurred -- 9 of 17 -- 8 at Byron Bay on 10th October 1996. At least, that is what is recorded in the Minute referred to previously. As this matter is now being heard de novo, one has to undertake the hearing of the application for the licence as if it is made to the Court. The Court replaces the respondent as the body which is to determine the merits of the application: Re Fredericks (1984) 1 Qd.R.436, 441. The appellant bears the onus of satisfying the Court that the licence should be granted. (Re Goodwin (unreported decision of Hall DCJ, 12th December 1983)). Section 40(7)(c) - “is not a person of good fame and character”. It was not really contended by counsel for the respondent that the appellant had not discharged his onus in this respect. The evidence from Mr Kelly, a motor dealer who formerly employed the appellant and his present employer, Mr David Nucifora, satisfy me that the appellant is known as a reliable and trustworthy person who carries out his duties in a most acceptable manner: Conte v Auctioneers & Agents Committee (1996) 18 QL Rep 57, 59. This view was supported by character evidence from Mr Rylance and Mrs Halliwell. Section 40(7)(d) - “is not a fit and proper person.” Counsel for the appellant argues that one has to distinguish between professional misconduct and personal misconduct: Ziens v Prothonotary of the Supreme Court (New South Wales) (1957) 97 CLR 279 at 290. It is submitted that the events at Byron Bay were of personal misconduct as opposed to professional misconduct. That observation is correct in determining whether a -- 10 of 17 -- 9 conviction should be a disqualifying factor. However, the respondent now relies upon the proposition that the appellant failed to disclose the existence of the convictions relevant to those events which had occurred within the five years prior to the application being made. It was submitted by counsel for the committee that the appellant had failed to make full and frank disclosure up until when he swore his affidavit in these proceedings. I accept the accuracy of that statement. The fact that the appellant had made disclosure of the insulting words and the incident at Byron Bay resulted only after being informed of these by the Registrar. Certainly, he had not informed his former employer, Mr Kelly, of his past convictions, nor did he inform the Registrar when he made his annual application during that time from 1992 to 1996 whilst working for Mr Kelly. The expression “a fit and proper person” was considered by the High Court of Australia in Hughes and Vale Pty Ltd v The State of New South Wales [No 2] (1955) 93 CLR 127 at 156. “The expression `fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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; `honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ - Coke. 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.” It seems that there is no dispute in this case that the appellant has the knowledge and ability to carry out his duties as a provisional auctioneer. Under the Act, and as recognised by his principal, Mr Nucifora, he is required to be supervised whilst carrying out some six auctions and -- 11 of 17 -- 10 his general duties. He has shown that he is reliable and trustworthy in the past six years in his employment. I accept the evidence of Mr Kelly and Mr Nucifora in this regard. In the decision of Sobey v Commercial Agents Board (1979) 22 SASR 70 at 75, the following passage appears: “I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a pre-requisite for a licence under the Act. But, in the present case, I think the appellant’s past conduct exposes an intrinsic defect of character which is incompatible with his being entrusted with a licence, either as a process server or a commercial sub-agent. The moral that he must learn is that he will have to demonstrate a greater respect for the law, before he can expect to obtain a licence under the Act. When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour. In any case, however, the appellant bears the onus under s.16(1) of the Act of satisfying the Board of the existence of matters qualifying him for a licence. The issue whether an appellant has shown himself to be a `fit and proper person’, within the meaning of s.16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an 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 the particular licence under the Act, 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, without further inquiry, as a person to be entrusted with the short of work which the licence entails.” Circumstances of Offences Both in his affidavit and in evidence, the appellant described what occurred at Byron Bay. At p.8 of the transcript, the following answer was given: “Yeh. I was having lunch with my father down at Byron Bay at the time and it was my mother’s birthday. We had been there from about 12.30 in the afternoon -- 12 of 17 -- 11 and we left at about 5.30 that afternoon. We went downstairs to get a taxi and where we were staying at our house down at Byron Bay is about 15 minutes journey away from the heart of Byron. On the way home, about halfway through on the way home, I was sitting in the back seat and my father was in the front seat. I reached over and put my arms around the taxi driver in the front seat and I was told to stop and from then on she drove me home and got out at the other end and then after that the police came round and picked me up.” It was established that after he was charged, the plaintiff rang up the taxi driver and apologised. He also sent her an apology and some flowers. The appellant’s father, Mr Cater, gave evidence which confirms the events and the effect that the incident had upon his son. He gave evidence that he his drinking habits have been more restricted since that time. It is noted that all of the offences seem to have occurred when the appellant was affected by alcohol. In relation to the other event which involved the taxi driver on 25th February 1995, it seems that the appellant refused to make payment of the fare and insulted the driver by using the words “you’re just a stupid cunt”. It appears that an argument had occurred between them. I am satisfied that if the appellant had made full disclosure that his application for a provisional auctioneer’s licence ought not to have been refused. What is more relevant is that he misled the Registrar and failed to make full disclosure up until 15th February 1999. In Goode v Medical Board of Western Australia (an unreported decision of Anderson J, 27th October 1994) a medical practitioner failed to show any remorse or an appreciation of his conduct. There was ample opportunity for the doctor in that case to so do. In the present case, notwithstanding that the appellant had been made aware of the Queensland offence of insulting language, he made no mention about the offences at Byron Bay. An officer of the Office of Consumer Affairs telephoned the appellant and asked him about the Queensland offence. Subsequently, the appellant gave an explanation in relation to this, but as the officer did not mention the Byron Bay -- 13 of 17 -- 12 offences, the appellant did not volunteer any information. Subsequently, once the Federal Police disclosed the matter, the appellant gave consent for it to be further investigated. He did not reveal the fact that he had failed to pay a fare on 27th February 1995. It is my view that this failure falls into the category of professional misconduct as distinct from personal misconduct by failing to properly inform the respondent of his history relevant to his application for a provisional auctioneer’s licence. It was a step towards his qualification. The appellant is now 28 years of age, being born on 21st day of February 1971. When he made his original application on 13th day of July 1997, he was 26 years of age. He has had a good work history working as a jackaroo after he left school, and seems to have been permanently employed up until the present time. His present employer, Mr Nucifora, said notwithstanding the offences of which he is now aware, he would regard him as a reliable employee because he judged him upon his performance and he had “never shown me to be anything other than reliable and honest”. Mr Nucifora has been a licensed auctioneer since in or about 1990. He runs a small business and says that the appellant has the makings of being a good auctioneer. The appellant is presently the subject of a recognisance in relation to the offences which occurred on 10th October 1996. Exhibit 1 is a letter from Queensland Corrections which states that the appellant was assessed as a low risk of reoffending and it was decided to terminate his supervision early after conferring with the New South Wales Service. It was noted that he maintained a stable relationship and full time employment throughout his supervision period. The explanation given by the appellant for not revealing the offences is that he did not think that it was relevant in relation to applying for a provisional auctioneer’s licence He realised in -- 14 of 17 -- 13 retrospect he ought to have disclosed same. He did not attempt to hide the obvious failure by him to comply with a duty to accurately record answers in the applications which he had made over the years to the Office of Consumer Affairs. One has to have regard to the age of the appellant at the material time and the nature of the charges in order to appreciate why he may not have answered the questions truthfully. He expressed the view that he did not want to tell his employer as he was embarrassed by same. However, due weight must be given to the fact that the respondent relies upon honest answers so that it can act on reliable information. The appellant has not committed any other offences since 10th October 1996. During that period, I infer that he has shown a greater respect for the law. During the course of argument, I suggested that perhaps the application could be adjourned until 18th October 1999 after the three years elapses in relation to the recognisance. However, one has to have regard to the provisional nature of this application. If the appellant does not perform either in the course of his employment or is found guilty of other offences in the future, then the respondent may give due weight to those matters, in so far as they may relate to his being a fit and proper person for an unrestricted licence. When one takes into account the references provided by his employers, both past and present, persons who have known him throughout his life (Exhibits 2 and 3), then one must balance off his failure to disclose and determine whether he is of “sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which a licence entails.” Having had the benefit of evidence which was not available to the respondent, I am satisfied that although the appellant may have acted foolishly and with lack of candour in the past, he is a fit and proper person to hold a provisional auctioneer’s licence. It has been over eighteen (18) -- 15 of 17 -- 14 months since he made his original application and some sixteen (16) months the since the respondent refused his application. The lapse of time has allowed the appellant to establish his reputation in his chosen industry. He has, by keeping out of trouble, shown respect for the law. Cases such as Sitek v Auctioneers and Agents Committee (McMurdo DCJ, 25.01.95, unreported) can be distinguished. In that case the appellant produced a false reference in support of his application. It was obviously highly relevant. In the present case the appellant mistakenly believed that the charges at Byron Bay were not relevant to the subject application. He now accepts that they were. I am satisfied he appreciates the error of his belief. His duty to be candid was overbourne by his determination to keep his job. Costs The appellant introduced further evidence before me. That evidence was not available to the respondent nor did the appellant make full disclosure until 15th February 1999. In the circumstances, the appropriate order should be that there be no order as to costs. Orders 1. The appeal is allowed. 2. The decision of the Auctioneers and Agents Committee made on or about 1st October 1997 whereby the Committee refused to grant the appellant’s application for a provisional auctioneer’s licence is set aside, and the said licence is hereby granted. 3. No order as to costs. -- 16 of 17 -- 15 -- 17 of 17 --