Giannasca v Commissioner for Fair Trading [2005] ACTSC 71 (7 July 2005)

Last Updated: 11 August 2005

NATHAN LEE GIANNASCA v COMMISSIONER FOR FAIR TRADING [2005] ACTSC 71 (7 July 2005)

EX TEMPORE JUDGMENT

No SCA 5 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 7 July 2005

IN THE SUPREME COURT OF THE )

) No SCA 5 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NATHAN LEE GIANNASCA

Appellant

AND: COMMISSIONER FOR FAIR TRADING

Respondent

ORDER

Judge: Crispin J

Date: 7 July 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. there be no order as to costs.

1. This is an application for leave to appeal against the decision of the Consumer and Trader Tribunal ("the Tribunal"), to confirm a decision of the respondent to refuse to register the applicant as a salesperson under the Agents Act 2003 (ACT)("the Act").

2. Section 45(1) of the Act provides that:

A person commits an offence if the person is not a registered real estate salesperson and pretends to be employed by a licensed real estate agent to provide a real estate agent service.

3. The eligibility for registration is determined by s 49(1) of the Act which provides that:

An individual is eligible to be registered if the commissioner for fair trading is satisfied that the individual -

(a) is an adult; and

(b) has the qualifications required under section 50 for the registration; and

(c) is not disqualified under section 27 or under section 51.

4. Section 51 of the Act sets out the grounds upon which people may be disqualified from being registered. Subsection (1) provides that a person is disqualified from being registered in any of the circumstances set out in the succeeding subparagraphs (a) to (j). The circumstance specified in subparagraph (a), which is relevant in this case, is that the person "has been convicted, in the ACT or elsewhere, of an offence involving dishonesty".

5. Subsections (2) and (3) of s 51 provide the respondent with a discretion to permit registration of a person otherwise disqualified by reason of the matters referred to in s 51(1)(b), or by reason of having contravened a registration condition in certain circumstances.

6. In the present case the respondent was not refused registration on any of the grounds specified in that subparagraph but rather on the ground specified in subparagraph 51(1)(a). In the course of reviewing that decision, the Tribunal observed that a certificate of conviction had been issued by the Deputy Registrar of the ACT Magistrates Court dated 10 December 2004, certifying that on 2 July 1998 the applicant had pleaded guilty to an offence under s 11(1) of the Crimes Act (Offences Against the Government) Act 1989, in that he stole property belonging to the Territory. The certificate records that he was convicted of that offence and that, without passing sentence, he was released upon entering into a recognizance to be of good behaviour for a period of 12 months. The Tribunal proceeded to find that this offence was "an offence involving dishonesty", and the correctness of that description has not been challenged.

7. The Tribunal noted, however, that Mr Kilduff who then appeared for the applicant had submitted that, despite the existence of the certificate, the applicant's conviction had in effect been a nullity or, alternatively, that it could be effectively discounted by a tribunal in considering the relevant provisions of the Act.

8. The Tribunal noted that Mr Kilduff's arguments had been based upon an assertion that there had been certain irregularities in the conduct of the hearing that had resulted in the applicant's conviction. However, the Tribunal held that the terms of s 51(a) of the Act did not allow the Tribunal to go behind the conviction and look at the subjective circumstances that had led to it or to investigate any issue as to whether the conviction had been properly made.

9. The Tribunal said that the factors disqualifying an applicant from being registered under the Agents Act 2003 have been expressed in clear and absolute terms, and that no discretionary powers had been given to the Commissioner or to the Tribunal that could apply when there had been a conviction for an offence involving dishonesty.

10. Accordingly, the Tribunal concluded that the applicant was ineligible to be registered as a real estate salesperson and proceeded to confirm the respondent's decision.

11. Mr Hassall, who now appears for the applicant, submitted that in confirming the Commissioner's decision, the Tribunal had fallen into error. He commenced his able submissions on behalf of the appellant by submitting that the Tribunal had not been precluded from considering doubts about the validity of the applicant's conviction, and augmented that submission by arguing that even if the Tribunal had been so precluded, this court could certainly entertain submissions raising such doubts.

12. In support of the latter contention he relied upon s 20 of the Supreme Court Act 1933 which, as he correctly observed, provides a very broad grant of jurisdiction. He also relied upon s 51(4) of the Consumer and Trader Tribunal Act 2003, which provides that on an appeal from a decision of the Tribunal, the Supreme Court may make "any other order the court considers appropriate".

13. Having regard to the breadth of the power conferred by these provisions, Mr Hassall submitted that it would now be appropriate for the Court to review the circumstances in which the applicant was convicted in the Magistrates Court with a view to determining whether he had in fact been properly convicted or whether the conviction was void.

14. It should be observed, however, that neither the informant in that case nor the Director of Public Prosecutions, who would have conducted the prosecution on behalf of the informant, was a party to the proceedings before the Tribunal and neither is a party to the present proceedings. Furthermore, it seems unlikely that the legislature had intended to permit the Tribunal to review the validity of convictions, whether recorded in the Magistrates Court or in this court.

15. An issue of this kind was raised in the case of Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441. In that case an order had been made for deportation pursuant to the Migration Act 1958 (Cwth). The decision of the Minister was reviewed by the Administrative Appeals Tribunal which recommended to the Minister that the deportation order be revoked, and ordered that the matter be remitted back to the Minister for that purpose. The Minster then appealed on a question of law, namely whether the Tribunal had adopted a version of the facts concerning an offence that had allegedly been committed by the respondent, which was necessarily contrary to the conclusion that had been reached by the jury in convicting the respondent.

16. As Ms Walker, who appears for the respondent in the present proceedings pointed out, Fox J in dealing with that situation provided a succinct explanation of the difficulties that might arise if tribunals were taken to have the power to review convictions. His Honour said at page 445 - 446;

"What does seem to me to be highly improbable is that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, (albeit one functioning in a number of respects like a court, and comprising a judge) should review the conviction on its essential factual basis. The policy must be that the conviction is a matter for the criminal law and its procedures. Appeals are there available. If new or fresh evidence comes to hand the criminal procedures can be availed of. There can in rare cases be an application for a pardon, perhaps preceded by a special judicial inquiry. While it stands, the conviction must be conclusive, so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister's decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. This is my understanding of the statutory intention. Quite obviously, serious practical questions arise if the position is otherwise. The Tribunal could presumably arrive at its own decision as to whether the person concerned did what he was charged with doing, and for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial, when some witnesses for the prosecution were unavailable and memories were in any event dimmed. Accepted trial procedures would be absent. The Crown, as repository of the function of criminal prosecutions, would not be a party. The Tribunal might in the end find itself substituting its own view for that of the jury."

17. It is true that his Honour went on to suggest that there could be cases in which it might be appropriate for the Tribunal to remit a matter to the Minister and recommend that the deportation be stayed until the conviction could be reviewed if there was clear evidence suggesting that the review of the conviction might well be productive. His Honour cited the example of a case in which a person who had been a crucial witness in the prosecution case that led to the conviction gave evidence before the Tribunal to the effect that he had been guilty of perjury in the original court proceedings. In that case, however, the legal test was quite different. And in this case there is no corresponding need to maintain the status quo, by preventing a person being deported pending an appropriate challenge to a conviction, arises in the present case.

18. Furthermore, in Minister for Immigration and Multicultural Affairs v Shane Ali [2000] FCA 1385, Branson J cited the earlier decision of the Federal Court in Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578 in which Lockhart J had noted, at 589, that the well known case of Hunter v Chief Constable of West Midlands Police [1982] AC 529, was authority from the highest source in England for the proposition that:

Where a final decision has been made by a criminal court of competent jurisdiction, it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and if it does it is an abuse of the process of the civil court.

19. In my opinion, the Tribunal was right to find that it had no power to consider a challenge to the regularity of the conviction. As Fox J observed in Gungor, there are other avenues for the review of convictions said to have been invalid or to have been entered irregularly.

20. In any event, the transcript of the criminal proceedings, which forms part of the appeal book, does not in my view reveal any apparent ground of invalidity. It is true that the learned magistrate dealt with the proceedings before him succinctly, perhaps even brusquely, and that his comments concerning some issues were not delivered in terms that precisely mirrored the language in the relevant statutory provisions. However, the proceedings were presumably dealt with during the course of a busy list in the Magistrates Court. The applicant had been represented by a legal practitioner who had consented to the jurisdiction and entered a plea of guilty on his behalf. His counsel presented an argument to the magistrate that no conviction should be recorded, but that the proceedings should instead be dismissed pursuant to s 556A of the Crimes Act 1900. The magistrate declined to accede to that submission, observing that in his opinion the offence had been "a bit serious for that". Nonetheless, he did proceed to release the applicant without passing sentence, on condition that he enter into a recognizance. I can see nothing about the manner in which the proceedings were conducted that would enable the conviction to be vitiated, even if the Tribunal had been entitled to entertain a challenge to its validity.

21. Mr Hassall submitted that I should grant leave for the applicant to raise a further ground of appeal, namely that the Tribunal failed to raise with counsel for the applicant the possibility of adjourning the proceedings before it so that further proceedings, whether brought by way of prerogative writ or otherwise, could be brought in this court to set aside or quash the conviction said to have been irregularly entered. I can see no reason why the Tribunal should have acceded to such an application even if it had been made. It would have been open to the applicant to have made a further application for registration should any proceeding subsequently brought in this court have resulted in the conviction being quashed. Indeed, it would still remain open to the applicant to pursue such a course if he could have the conviction quashed.

22. Mr Hassall also submitted in the alternative that it would be appropriate for me to adjourn the present proceedings so that either the informant and/or the Director of Public Prosecutions could be added as a further contradictor and the validity of the conviction attacked directly. However, in my opinion, the present proceedings are simply an inappropriate vehicle for such an issue to be litigated. I am concerned only with questions of whether leave should be granted to permit the applicant to appeal against the decision of the Tribunal refusing his registration under the Act and, if leave were to be granted, whether the Tribunal had made an appellable error warranting the setting aside of the order. It would be quite inappropriate for me to graft onto these proceedings some further litigation concerning the validity of a conviction recorded in the Magistrates Court some seven years ago.

23. However, Mr Hassall did not rely only upon these submissions. He also argued that the Tribunal had been wrong to find that it had had no power under s 172 of the Agents Act 2003 to review a disqualification arising by reason of s 51(1)(a).

24. Section 172 of the Act provides in subs (1):

The consumer and trading tribunal may review a decision to disqualify a person from being licensed or registered.

25. Mr Hassall drew my attention to the fact that this section is introduced by the heading, "Review of disqualifications". Mr Hassall pointed out that s 126(2) of the Legislation Act 2001 (ACT) provides that a heading to a section or subsection of an Act is part of the Act if the Act was enacted after 1 January 2000. The Agents Act 2003 was, of course, enacted in 2003. Hence, I accept Mr Hassall's submission that the heading forms part of the Act.

26. Mr Hassall proceeded to argue that, construed in the light of the heading, the section should be taken to authorise a review of any disqualification, irrespective of how the qualification arose. In support of that submission he relied upon various statutory provisions that suggest that, when interpreting an Act, the meaning that best promotes the purpose of the Act should be preferred. He also relied upon presumptions against interpretations that would have the effect of abrogating existing rights.

27. Mr Hassall also pointed out that there may be, albeit perhaps unusual, circumstances in which it would be quite inappropriate for a person who had been convicted of a single offence involving dishonesty, perhaps in strongly mitigating circumstances, to be disqualified from being registered under the Act. Whilst s 16 of the Spent Convictions Act 2000 (ACT) provides that such a conviction ceases to have effect after 10 years, disqualification for a decade could in some circumstances be seen as a quite Draconian response to the gravity of the conduct reflected in the conviction.

28. I am not unsympathetic to that submission. The generality of the phrase "offence involving dishonesty" has not been qualified by any requirement that such an offence have been committed as an adult or that it have involved any attempted theft or misappropriation. Hence, s 51 would appear to disqualify a person who had been convicted in the Children's Court of having lied about his or her age to gain admission to licensed premises when a teenager. However, relatively trivial charges against a young first offender are likely to be dismissed under s 402 of the Crimes Act 1900 (formerly s 556A) rather than resulting in a conviction. In any event, I am obliged to interpret the Act by reference to the apparent intention of the legislature, rather than by reference to my own beliefs or perceptions as to how the relevant provision might have been drafted.

29. In my opinion, one cannot overlook the fact that the power to review provided by s 172(1) is a power to review "a decision" to disqualify a person from being licensed or registered. The disqualification arising by reason of s 51(1)(a) does not arise by reason of any "decision" other than perhaps a decision of the legislature to enact the section.

30. Ms Walker submitted that the section was clearly directed to the review of decisions made under s 43 of the Act which deals with disciplinary action against agents, or s 67 of the Act which deals with disciplinary action against salespeople. I have concluded that Ms Walker is correct in this submission. In my opinion, s 172 does not authorise a review of disqualifications arising by virtue of the force of the Act, rather than by reference to subsequent decisions taken by the respondent.

31. The applicant may, perhaps, draw some comfort from the fact that s 16 of the Spent Convictions Act 2000 will effectively nullify the conviction simply by the passage of time, though he will apparently remain disqualified until 2 July 2008. I am unable to find any arguable ground that the Tribunal fell into any appellable error in approaching the matter in the way in which it did.

32. The appeal must be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 8August 2005

Counsel for the applicant: Mr D Hassall

Solicitor for the applicant: Mr M Elmaraazey

Counsel for the respondent: Ms J Walker

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 7 July 2005

Date of judgment: 7 July 2005