Bek v Commissioner for Fair Trading [2004] NSWADT 149 (23 July 2004)

Last Updated: 23 July 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Bek v Commissioner for Fair Trading [2004] NSWADT 149


PARTIES: APPLICANT
Michael Bek
RESPONDENT
Commissioner for Fair Trading



FILE NUMBERS: 043135

HEARING DATES: 16/07/2004

SUBMISSIONS CLOSED: 16/07/2004



DECISION DATE: 23/07/2004

BEFORE: Montgomery S - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Pawnbrokers and Second-hand Dealers Act 1996
Road Transport (General) Act 1999

CASES CITED: Aguerre v Director-General Department of Fair Trading [1999] NSWADT 95
Alexander & Hassan Pty Ltd -v- Director General, Department of Fair Trading [2000] NSWADT 181
Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138
Hadroj -v- Director General, Department of Fair Trading [2002] NSWADT 95
McEvoy v Director-General Department of Fair Trading [2000] NSW LEC 183
Papast v Commissioner for Fair Trading [2004] NSW ADT 28
Re Mayers and Casino Surveillance Authority (1993) 29 ALD 585

APPLICATION: Pawnbrokers licence - grant of licence
Pawnbrokers & Second-Hand Dealers Act - pawnbrokers licence - grant of licence

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
S Hajjar, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
K Grant, solicitor

ORDERS: 1.The decision of the Commissioner for Fair Trading to refuse the application by Mr Bek for a Pawnbroker & Second-hand Dealer licence is set aside.
2.In substitution, the decision is made that the licence be granted.


Reasons for Decision:

REASONS FOR DECISION

The Application

1 This is an application for review of a decision by the Commissioner for Fair Trading ("the Commissioner") to refuse an application by Mr Michael Bek for a Pawnbrokers and Second-hand Dealers licence under the Pawnbrokers and Second-Hand Dealers Act 1996 ("the Act").

2 By letter dated 19 March 2004, a delegate of the Commissioner advised Mr Bek that he had refused the application. The Application was refused on the grounds that Mr Bek is considered to be a disqualified person for the purposes of the Act, and is not eligible to hold a licence under the Act.

3 By letter dated 29 March 2004, Mr Bek applied for an internal review of the Commissioner’s Decision. The original decision was affirmed following the internal review. The Commissioner advised Mr Bek of that outcome by letter dated 8 April 2004.

Background

4 The Office of Fair Trading ("OFT") application form that Mr Bek completed ("the licence application form") contains a number of questions relevant to a licence applicant. On page 68 of the application form under the heading "PART J APPLICANT HISTORY", the form states in bold print

"The Office of Fair Trading will conduct a criminal record check in respect of individual applicants and all directors of corporate applicants."

5 A question numbered "6" within Part K of the form ("Question 6") sought information with respect to an applicant’s prior convictions. Question 6 provides:

"Has any Individual Applicant, Director or Corporation nominated in this application, either in NSW or elsewhere:

...

6. been convicted for any offence involving fraud or dishonesty or served a term of imprisonment in the last 10 years?"

6 The part of the form that provided for Mr Bek’s answer to Question 6 was ticked in the box marked "No". Mr Bek signed the application form.

7 A criminal check conducted by the OFT showed that on 11 December 2000 Mr Bek appeared in the Burwood Local Court and was convicted of Driver/Rider State False Name or Address. In respect of this offence, Mr Bek was fined $300.

8 The facts advised to the Court in relation to the offence were:

"Michael Moussa Bek on the 27th day of November 2000, at Lakemba in the State of New South Wales, did state a false name in purported compliance of a requirement of Constable Grant, an authorised officer in the execution of his functions under the road transport legislation, requiring the said Michael Bek to state his name, the said Michael Bek being the driver of the vehicle".

9 The Facts Sheet that Constable Grant prepared in relation to the incident stated:

"About 3.05pm on Monday 27th November 2000 the defendant, Michael BEK was seen driving his vehicle, a blue Trans Am registration SMOKEY on Canterbury Road Lakemba. The defendant drove this vehicle and caused it to lose traction for about 5 seconds, swerving between two lanes of traffic eastbound.

Police stopped the defendant and spoke to him where he was unable to produce a driver’s licence. He stated that he did have a licence and that it was current and active. The defendant was then asked to supply his particulars to police where he supplied the name of Mouin BEK, Date of Birth 25/6/82 with an address of 112 Duke Street Campsie.

At the time the police computer system was not working and no checks could be done to verify these details. The defendant was very evasive when asked certain other questions and stated that the vehicle was his brother’s and he was on his way to the panel beaters down the street. The defendant was followed to the panel beaters and police agreed to take him home so he could produce his drivers licence.

The defendant went inside 112 Duke Street Campsie and came back out a short time later. The defendant sat on his front step and said, "Thanks boys, you know what, I just needed a lift home. I was going to have to walk home."

The defendant then told police he didn't have a licence and that to check at Campsie Police as he had reported it lost to them. Police then informed the defendant that he was under arrest as he could not provide his detai1s and that he was going to be taken to Burwood Police station. He still failed to provide any details. The defendant's mother and brother also refused to supply police with his detai1s.

The defendant was then conveyed to Burwood Police station and entered into custody. He then provided the custody manager his correct details and also took part in a notebook record of interview where he admitted that he knew he didn't have a licence, did a burnout, and also that he supplied the particulars of his younger brother to avoid apprehension for driving unlicensed."

10 In his application for internal review of the Commissioner’s decision Mr Bek provided an outline of the circumstances leading to his offence and an explanation for his failure to disclose his conviction.

Reviewable decision

11 The reviewable decision is that of the Commissioner to refuse Mr Bek’s licence application. On 11 May 2004, Mr Bek filed an application with this Tribunal for Review of the Commissioner’s Decision. The matter was listed for direction on 22 June 2004 at which time the matter was listed for hearing on 16 July 2004. The matter proceeded on that day.

Applicable Legislation

12 The Commissioner’s decision was taken pursuant to Part 2 of the Act. The Director-General of the Department of Fair Trading formerly undertook the functions of the Commissioner. Any reference to the Director-General in the applicable legislation is to be read as a reference to the Commissioner. Insofar as is relevant to these proceedings sections 8, 8A and 9 of the which fall within Part 2 of Act provide:

"8 Eligibility for licence

(1) An individual is eligible to hold a licence only if the Director-General is satisfied that:

...

(c) he or she is not a disqualified person."

"8A Disqualified persons

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

(a) the person is disqualified under subsection (2) or (3) from holding a licence, or

...

(2) An individual is disqualified from holding a licence if:

(a) he or she has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General has determined under subsection (4) that the offence should be ignored, or

...

(4) Where subsection (2) or (3) provides that a determination may be made under this subsection in relation to an offence committed by a person, the Director-General may determine that the offence should be ignored for the purposes of this section on one or more of the following grounds:

(a) the triviality of the acts or omissions giving rise to the offence,

(b) the time that has passed since the offence was committed,

(c) the offence was committed by the offender as a minor,

(d) the subsequent good behaviour of the offender,

(e) any other ground prescribed by the regulations.

(5) Where subsection (2) provides that a determination may be made under this subsection that a factor should be ignored, the Director-General may determine that the factor should be ignored for the purposes of this section in relation to the individual concerned if, on the basis of information and evidence provided to the Director-General by the individual, the Director-General considers it is appropriate to do so."

"9 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002

(1) The Director-General may grant the following licences for the purposes of this Act:

(a) pawnbrokers' licences,

(b) second-hand dealers' licences,

(c) combined pawnbrokers' and second-hand dealers' licences.

(2) Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 ( the applied Act ) applies to and in respect of a licence, subject to the modifications and limitations prescribed by or under this Act.

(3) For the purpose of applying Part 2 of the applied Act to a licence:

(a) the licence may be amended under that Act, and

(b) an application for restoration of a licence under section 10 of that Act may not be made more than 3 months after the date on which the licence expires.

(4) Subject to this section, the regulations may make provision for or with respect to such matters concerning a licence as are relevant to the operation of Part 2 of the applied Act."

13 The Tribunal has jurisdiction to review the Commissioner’s decision by virtue of section 38 of the Administrative Decisions Tribunal Act ("ADT Act") and section 39 of the Act. Section 38(1) of the ADT Act provides:

"38 Conferral of jurisdiction to review reviewable decisions

(1) The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment".

14 The Tribunal’s powers are conferred by s 63 of the ADT Act which provides:

"63. Determination of review by Tribunal

(1) In determining an application for a review of a 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 enactment on the administrator who made the decision.

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

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

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

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

15 By virtue of section 8 of the ADT Act, ‘[a] "reviewable decision" is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. Section 39 of the Act provides:

"39 Reviews of decisions of Director-General

(1) An applicant for a licence or for renewal of a licence whose application has been refused may apply to the Administrative Decisions Tribunal for a review of the refusal.

(1A) On an application under subsection (1) for a review of a decision of the Director-General refusing to grant a licence to a person because the person is disqualified under section 8A (2) (a) or (3) (a):

(a) the Administrative Decisions Tribunal may determine that the fact that the person committed the offence concerned should be ignored on one or more of the grounds referred to in section 8A (4), and

(b) the licence may be granted accordingly. "

The Commissioner’s case

16 In essence, the Commissioner’s case is that Mr Bek is a disqualified person. The Commissioner relies on the record of Mr Bek’s conviction and his failure to declare the conviction as reason for refusing the application. The Commissioner has determine that the offence should not be ignored for the purposes of section 8A of the Act

17 Ms. Grant provided written submissions that clearly outline the Commissioner’s case. Ms. Grant submitted:

"The factual background

6. On 27 January 2004 the respondent received an application for a pawnbrokers and second-hand dealer's licence from the applicant. In response to question 6, which asked, if he had "been convicted for any offence involving fraud or dishonesty or served a term of imprisonment in the last 10 years" the applicant ticked the box marked "No".

7. A Police Criminal History Search conducted by the Respondent revealed that the applicant had been convicted by the Burwood Local Court on 11 December 2002 of "drive on road when licence refused" and "driver/rider state false name or address". A penalty of $300 was imposed in respect of the latter conviction.

8. On 19 March 2004 the respondent wrote to the applicant telling him that his application had been refused because he had a conviction within the last 10 years for an offence involving dishonesty and he was therefore considered to be a disqualified person for the purposes of the Act.

9. On 29 March 2004 the applicant wrote to the Respondent explaining the circumstances in which the offence was committed and asking that the respondent exercise his discretion under the Act to ignore the offence. Of his failure to disclose the offence the applicant said he misunderstood the question and thought that it was directed at serious criminal matters involving fraud. The applicant said that the offence was committed when he was 21 years old when he was driving while disqualified and that it was a "split second" decision to avoid being caught driving unlicensed. He said at the time he was going through a difficult time in his life and asked that his subsequent employment record and good conduct be taken into account.

10. On 8 April 2004 the respondent wrote to the applicant saying that he did not consider the offence to be trivial or that sufficient time had passed since the offence was committed. The respondent therefore declined to exercise the discretion to ignore the offence under s.8A(4) and affirmed the decision to refuse the application. The applicant then applied to the Tribunal for review.

Offence involving dishonesty

11. The applicant was convicted of stating a false name and address in contravention of s.19(2)B of the Road Transport (General) Act 1999. Whether an offence should be categorised as one involving dishonesty was considered by the Tribunal in Eleter v Director-General Department of Fair Trading [2002] NSW ADT 138 where it was stated at paragraph 49:

It is not necessary for dishonesty to be a legal component or requirement of the offence. It is enough that dishonesty is involved in the offence in a way which most people would understand the term ...

"Dishonesty" is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud."

12. It is submitted that to state a false name and address to a police officer in response to a direct question involves dishonesty within the ordinary meaning of the word as most people would understand it.

Exercise of the Commissioner's discretion under s.8A(4)(a) of the Act: triviality of the acts or omissions giving rise to the offence :

13. The acts giving rise to the offence of which the applicant was convicted were that he was driving while disqualified and by his own admission, lied to avoid being found out in the commission of an offence. The applicant says that his decision was one made in a "split second". However the Police Facts sheet show that the applicant persisted with the story even after he was driven home to produce the licence, when he said that he could not do so because it had been stolen. It was only after being taken into custody at the Burwood police station that the applicant admitted that he did not have a licence. It is of concern also that the name he gave was that of his brother with the same surname, presumably to give weight to the deception.

14. While it is conceded that the offence is not serious, it is submitted that it is not trivial, as demonstrated by the Fact sheet showing that the applicant told a series of lies before being compelled through further questioning to tell the truth.

Exercise of the Commissioner's discretion under s.8A(4)(b ) of the Act: time that has passed since the offence was committed

15. The Act sets a 10 year disqualification period for an applicant who has been convicted of an offence involving dishonesty. It is submitted that the Tribunal should be cautious when considering whether discretion should be exercised in relation to a time frame that it shorter than the 10 year period set by the legislature. The Tribunal has considered the impact of the passage of time in the following cases:

Aguerre v Director-General Department of Fair Trading [1999] NSWADT 95

Hadroj v Director-General Department of Fair Trading [2002] NSW ADT 95

Eleter v Director-General Department of Fair Trading [2002] NSW ADT 138

16. In Aguerre, which involved an offence of stealing that was almost 9 years old, the Tribunal determined that sufficient time had elapsed since the offence, that the offence was an isolated event and that Mr Aguerre was now a person of good character. It was otherwise in Hadroj where the applicant's conviction for stealing was just over 12 months old. Here the Tribunal found that insufficient time had passed to ignore the offence and that subsequent good behaviour in that relatively short time did not warrant the exercise of the Commissioner's discretion to ignore the offence. Eleter’s case fell in the middle ground. The Tribunal found that, although an elapsed time of 4 years and 4 months from the offence may be sufficient in some cases, in the circumstances of this particular offence (receiving stolen goods), it was an insufficient period. Nevertheless the Tribunal went on to exercise its discretion based upon the subsequent good behaviour of the applicant.

17. Here the Tribunal is confronted with an offence committed 3 and a half years ago when the applicant was 21. Parliament has indicated that it considers offences of dishonesty committed within the previous 10 years warrant disqualification unless discretion is exercised to ignore the offence. It is submitted that although some years have elapsed since the offence was committed, the time is not yet enough to warrant a finding that sufficient time has passed so as to exercise the discretion to ignore the offence.

Failure to disclose the offence

18. Failure to disclose convictions - even those thought to be minor and unrelated to the certification sought - has been pivotal in determinations by courts considering issues of fame and character and fitness and propriety. It is submitted that the reasoning in these cases is relevant to the present matter.

19. In Re Mayers and Casino Surveillance Authority (1993) ALD 585 the ACT Administrative Appeals Tribunal affirmed a decision refusing to grant a casino licence to the applicant because he had failed to disc1ose two relatively minor offences in his application. In finding against the applicant the Appeal Tribunal stated:

While there is no doubt in this case about the applicant's knowledge and ability to fit him as a casino employee we are satisfied that he has demonstrated, in his evidence before this Tribunal and his dealings with the Authority a serious lack of honesty. We are satisfied that he applicant set out to dupe the Authority as to his previous convictions ... those actions are entirely inconsistent with and not the actions of a person who is scrupulously honest.

20. Further, in McEvoy v Director-General Department of Fair Trading [2000] NSW LEC 183 the Land and Environment Court dismissed an appeal against a refusal to grant the applicant registration under the Valuers Registration Act 1975 commenting as follows upon the applicant's failure to disclose convictions for two drug offences and a conviction for dangerous driving:

The obligation of complete candour and disclosure is an important element of good character. Its absence does not give one confidence that in the course of his work as a registered valuer the applicant will not overlook in his valuation reports all relevant facts or opinions which may bear upon the question of value. Its absence suggests that the accuracy and reliability of the applicant's work would have to be checked.

21. Note however the decisions of this Tribunal in Papast v Commissioner for Fair Trading [2004] NSW ADT 28 where the Tribunal accepted the explanation of an applicant for a wholesalers licence under the Motor Dealers Act 1974 that his failure to disclose convictions for larceny and stating a false name represented isolated departures from proper standards; and in Eleter where the Tribunal found that the applicant's failure to disclose a conviction for receiving stolen goods arose from a lack of understanding of the application form rather than from deliberate deception or dishonesty.

Conclusion

22. The applicant was convicted of an offence involving dishonesty 3 and a half years ago and is therefore a person disqualified from holding a licence under the Act.

23. The acts and omissions giving rise to the conviction, the time since it was committed and the failure to disclose the conviction on the application form indicate that the applicant is not yet a person of good character so as to warrant the exercise of the Commissioner's discretion to ignore the offence under s.8A(4) of the Act. "

18 Ms. Grant relies on those submissions but also made further oral submissions. She argued that there is an inconsistency between the Police Facts Sheet and Mr Bek’s assertion that he regretted the offence from the moment that he did it. She said that the Facts Sheet suggests that he persisted with the lie over a long period of time.

19 Ms. Grant conceded that while Mr Bek’s offence is not trivial it is at the lower end of the scale of seriousness. She argues that it is significant that Mr Bek is still a young man and that it is recognised elsewhere that persons under the age of 25 are considered to be still prone to rash behaviour. She urged caution in concluding that sufficient time had passed since the offence for the Tribunal to determine that the offence should be ignored for the purposes of the Act.

20 Ms. Grant also submitted that there is an obligation on those trading in this industry to keep accurate records and that Mr Bek’s failure to disclose his conviction reflects an inability to meet those standards.

21 She submits that little weight should be given to the references on which Mr Bek relies because they make no reference to these proceedings or to Mr Bek’s conviction.

Mr Bek’s’ case

22 Mr Bek relied on his 29 March 2004 letter to the Commissioner seeking an internal review as a statement of his position in relation to the conviction and his failure to disclose the conviction in the application for the licence. He conceded that he had lied to Police in relation to his identity in relation to the offence, however, Mr Bek denied that he had deliberately concealed his conviction when he signed the licence application form.

23 In his application for internal review of the Commissioner’s decision Mr Bek stated:

"As the refusal letter says, in the year 2000 I was convicted of an offence relating to giving a false name to a police officer. I initially answered "No" to the question on the application form which asked whether I had been convicted of an offence "involving fraud or dishonesty" but I did not do this because I was trying to hide my conviction. It was an honest misunderstanding because I did not know exactly what the question was asking. I did not realise I should have answered "yes" because I thought my offence was a traffic matter and I thought the question was asking about serious criminal matters involving fraud (like stealing money from employers or other people etc). I was not trying to hide my conviction (which I know is not possible anyway, because I know that these licence application forms would be carefully checked).

It really was an honest mistake. I know this now after speaking to a few people and having the process explained to me in more detail.

Because I did not answer "yes", the person who refused my application (Mr Jarron) was not able to consider whether my offence should be ignored (the letter says the offence can be ignored under "subsection 4"). I understand why Mr Jarron did not think about whether to ignore my offence. I hope that you will consider the things I have to say in this letter and decide to ignore the offence.

My offence

I committed the offence when I was only 21 years old. By the time I was 21 I had lost my drivers licence after going through a difficult period in my life, starting when my father passed away when I was about 10, and I had gone off the rails a little as I was growing up. Although I never did anything overly serious, I was a lot different then to what I am now.

At the time of the offence, I was driving without a licence and when the police officer asked me for my name, I was terrified of being caught for driving unlicensed and letting down my mother and three brothers. It was a split-second decision to provide a false name, in the hope that I wouldn't be caught. It was wrong and I regretted doing it from the moment that I did it. This can be seen from the fact that I pleaded guilty to the charge. I took it on the chin and promised myself I would straighten up. Like I said, I did straighten up. Now I am a very different person.

Since then, I have completed a trade and am now a qualified and licensed electrician (Contractor Lic: 143781C). I now run my own business, called "Bek's electrical" and have also worked for large electrical company, Electromaster, for about seven years. About 8 months ago I purchased a house and am now planning to settle down and start a family.

Ignoring my offence

The refusal letter says that it may be possible for my offence to be ignored. The letter lists some reasons for ignoring the offence. I hope you will agree that one or more of those reasons apply to me and my offence, especially because:

I committed the offence when I was a lot younger and less sensible than I now am (the difference between the ages of 21 and 25 is far greater than the difference between 31 and 35 - I have matured a great deal in this time); and since then, I have had an excellent record of behaviour and have not been convicted of or even charged with any criminal offence.

Your decision

Put simply, I made a mistake when I was young and going through a rough time. I have, since then, settled down and consider myself to be an honest, hard working young man who wants to make his family proud and, soon, start a family of my own.

Part of my plans involves getting into the pawnbroker and second-hand dealer business and it is for this reason I need my licence."

24 Testimonials that Mr Bek put in evidence asserted that Mr Bek is a person of good character, respected by his peers and clients. Those testimonials were admitted into evidence subject to weight. Mr. Hajjar, who appeared for Mr Bek, conceded that the references make no mention of the offence or these proceedings, however he submitted that Ms Grant had the opportunity to contact the referees and ask them about the references and had not taken up that opportunity. He referred to the decision in Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138 where Judicial Member Lees stated at paragraph 66

"66 There was no evidence adduced suggesting Mr Eleter was not of good character. It is noted that Mr Eleter did not produce any testimonials or references from anybody attesting to his character. Although such may have assisted Mr Eleter’s claim to good behaviour, no conclusion as to Mr Eleter’s behaviour, good or otherwise can be drawn from their non-production. The fact Mr Eleter was overseas for ten years and self-employed for the three years prior to the hearing may have some relevance in this regard."

25 Mr. Hajjar asks that the Tribunal adopt a similar approach to the references in this matter and concluded that as there is no evidence adduced suggesting Mr Eleter was not of good character, the positive references should be given full weight.

26 Mr. Hajjar made detailed submissions as to the approach that should be taken by the Tribunal. He submitted that the circumstances of this matter do not justify the refusal of Mr Bek’s licence application. It is conceded that Mr Bek has the conviction as alleged and it is also conceded that Mr Bek failed to disclose the conviction. He submitted that the offences for which Mr Bek had been convicted are at the lower end of the scale of seriousness and that Mr Bek had provided a plausible explanation for the failure to disclose it.

27 Mr. Hajjar contends that Mr Bek should be permitted to hold the licence that he seeks. He argues that Mr Bek erroneously responded to a question in the application form that he did not have a criminal record. Particularly, Mr Bek misunderstood the question asked at question 6 of the application form. Mr Bek had understood that question to relate to commission of any serious criminal offences.

28 Mr. Hajjar asks that the Tribunal particularly take into account (a) the minor nature of the offences; (b) the time that has past since the offences were committed; (c) Mr Bek’s age at the time of the offence; (d) Mr Bek’s subsequent good behaviour; (e) the testimonials as to Mr Bek’s character; and (f) the fact that he has been a licensed electrical contractor, in steady employment for a significant period of time with no adverse comments about the work he has performed in that industry.

29 Mr. Hajjar asks that the Tribunal take into account Mr Bek’s age at the time of the offence relative to the time that has passed since the offence, the facts of the offence and the manner in which a guilty plea was entered to the offence for which he was charged.

30 With respect to the failure to disclose the conviction in the Application Form, Mr Hajjar argues that the Tribunal should not conclude that there was a deliberate act of deception. Mr Hajjar submits that Mr Bek provided a credible explanation for his failure. As a non-lawyer Mr Bek made a distinction between minor and serious convictions. He read the introduction to Part J and he therefore knew that if the Commissioner checked he would find out about the offences.

31 Mr. Hajjar also referred to several of the authorities on which Ms Grant relies, but also relies on reasoning given by the Deputy president of this Tribunal in the matter of Alexander & Hassan Pty Ltd -v- Director General, Department of Fair Trading [2000] NSWADT 181.

32 Mr. Hajjar submits that there is no limit on the Tribunal’s discretion and the discretion should be exercised in accordance with the objects of the Act. There is no statement of the objects contained within the Act, however Mr. Hajjar referred to the reference, at paragraph 7 of Alexander & Hassan, to the Second Reading Speech of the then Minister for Fair Trading, Ms Lo Po', in introducing the Bill for the Act:

"The Government is intent on enhancing the capacity of the Police Service to target thieves and those who trade with them and of the Department of Fair Trading to remove dishonest traders from the marketplace."

33 Mr. Hajjar submits that the authorities referred to suggest that a licence has been granted in circumstances where the applicant has a conviction for an offence that is far more serious than that for which Mr Bek has been convicted. His conviction is not trivial but is on the lower end of the scale and should not prevent him from obtaining the licence. In Eleter Mr Eleter had been convicted of receiving stolen property. In Alexander & Hassan Mr Hassan had been convicted of stealing a five-speed motor vehicle gearbox. In Aguerre v Director-General Department of Fair Trading [1999] NSWADT 95 Mr Aguerre was convicted of the offence of stealing. In each of these matters the applicant had succeeded.

34 In Hadroj -v- Director General, Department of Fair Trading [2002] NSWADT 95 Mr Hadroj was convicted of four offences: three counts of goods in custody which may be reasonably suspected of being stolen or otherwise unlawfully obtained and one count of selling second-hand goods without holding a licence. His licence application was refused.

35 In contrast, Mr Bek’s conviction is not related to the industry. He has not been involved in any trade dishonesty or any manipulation of the system. In Aguerre the Tribunal’s President considered that the fact that the offence was not connected to the industry was a material fact. Similarly, in Alexander & Hassan the nature and circumstances of the offence was considered to be factors that are to be taken into account.

36 With respect to the period of time since Mr Bek’s conviction, Mr. Hajjar referred to the decision in Eleter where Judicial Member Lees stated at paragraphs 57 and 58 of her decision:

"57 In relation to the ‘time since offence committed’ serving as a ground to ignore Mr Eleter’s offence, no guidance is provided in the Act as to how this discretion might be exercised. It is clear that no time period has been expressly excluded. A period of ‘just over twelve months’ was considered insufficient time passed in the Hadroj matter whereas nearly nine years was considered sufficient in the Aguerre decision. At the time of the Tribunal hearing nearly four and a half years had passed since Mr Eleter’s offence. Is that a sufficient amount of time?

58 Looking at the ‘receiving’ offence for which Mr Eleter was convicted, it is a minor indictable offence, that is, an offence in respect of which the maximum penalty is less than five years. Mr Eleter’s specific offence involved property valued at less than $5000, the maximum penalty for which is 12 months imprisonment or a fine of 50 penalty units or both; ... The passage of four and a half years or so is a period over four times the maximum period of time Mr Eleter could have been imprisoned for the offence. It is conceivable that in some circumstances the period of four and a half years without incident after an offence could be considered a comparatively long and possibly sufficient amount of time."

37 Mr. Hajjar submits that Mr Bek’s conviction is not one to which imprisonment applies. Mr. Hajjar further submits that at the time of the offence Mr Bek was 21 years of age. He argued that in terms of maturity the passage of time is more significant at some stages of life than at others. Accordingly the focus should be on the period of time that has passed relative to the applicant’s development. In this regard there is a significant difference between ages 21 and 25 years of age. Accordingly, the passage of three and a half years from the time of the offence should be considered sufficient time to permit the licence to be granted.

38 In Eleter the particular offence was linked to the passage of time and subsequent behaviour. At paragraph 59 of the decision Judicial Member Lees stated that although four and a half years may be sufficient passage of time after some offences, in relation to Mr Eleter’s specific offence it was considered an insufficient period. Nevertheless, at paragraph 69 she concluded:

"69 In conclusion the Tribunal finds that on balance, Mr Eleter’s behaviour subsequent to his offence has been good, if not very good, and warrants the exercise of the discretion under s. 8 (4)(c) in his favour."

39 Mr. Hajjar submits that Mr Bek’s subsequent behaviour has been unblemished. He used the offence as a turning point in his life and he has been of no interest to the police since that time. He has been in secure employment and has established himself as a respected operator in the electrical industry. Mr. Hajjar submits that Mr Bek’s subsequent behaviour has been better than Mr Eleter’s subsequent behaviour. Accordingly the licence should be granted.

40 Mr. Hajjar sought to distinguish the authorities of McEvoy and Re Mayers and Casino Surveillance Authority on the basis that in each of those cases the relevant offences and their repetition were of a far more serious nature than Mr Bek’s offence. Those matters demonstrate a serious lack of honesty, which is a far cry from the present situation.

41 He further submitted that there is no merit in Ms Grant’s submission that there is an inconsistency between the Police Facts Sheet and Mr Bek’s assertion that he regretted the offence from the moment that he did it. He argued that the events occurred over a short period of time and that Mr Bek admitted the offence when the situation had settled. A distinction can be drawn between this situation and one where an individual continues to behave dishonestly after time had been allowed for the situation to settle.

42 Mr. Hajjar suggested that the issue of disclosure could be resolved by redrafting of the application forms to seek a declaration of "any offence". This would remove any doubt in the mind of an applicant as to what is being sought and would be no more onerous for the Commissioner who would be undertaking a background check anyway.

Reasons and decision

43 Pursuant to section 8 of the Act an individual is eligible to hold a licence only if the Commissioner is satisfied that the applicant is not a disqualified person. Section 8A(2)(a) of the Act provides that an individual is disqualified from holding a licence if he or she has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General has determined that the offence should be ignored.

44 Section 8A(4) of the Act provides that the Commissioner may determine that the offence should be ignored on one or more of the following grounds: (a) the triviality of the acts or omissions giving rise to the offence; (b) the time that has passed since the offence was committed; (c) the offence was committed by the offender as a minor; (d) the subsequent good behaviour of the offender.

45 The first question is whether Mr Bek has a conviction for an offence involving dishonesty. This issue is not in dispute.

46 The next question is whether the offence should be ignored because of the triviality of the acts or omissions giving rise to the offence. The acts or omissions, which gave rise to the offence, in this case were that Mr Bek stated a false name to the Police. The Commissioner concedes that this offence is borderline. The applicant submitted that it was at the lower end of the range of offences. However, the Tribunal must focus on whether the "acts or omissions giving rise to the offence" are trivial. In my view, lying to Police in the course of their duties can never be considered trivial, however I agree that it is an offence at the lower end of the scale.

47 I accept the submissions made on Mr Bek’s behalf with respect to the time that has passed since the offence was committed. Some three and a half years have passed since the offence was committed. I also agree that the passage of time should not be considered in isolation to consideration of Mr Bek’s age at the time of the offence. I note that in Aguerre almost nine years that had passed since the offence was committed justified the exercise of the Tribunal’s discretion to ignore the offence. However in Eleter the period of four and a half years without incident after an offence was not considered a sufficient amount of time given the nature of the offence. It is my view that the period of time that is necessary to have passed must be linked to the offence for which an applicant has been convicted. In this case, it is my view that given the nature of Mr Bek’s offence, three and a half years is sufficient to warrant the exercise of the discretion conferred to treat the offence as one which should be ignored.

48 It is also my view that Mr Bek’s apparent subsequent good behaviour is a further basis on which the discretion should be exercised. I do not accept Ms Grant’s submissions in relation to Mr Bek’s failure to disclose the conviction. In my view his explanation is plausible. The impugned conduct must be placed within context and assessed against the background of Mr Bek’s overall character. Mr Bek has operated in the industry for many years and during that time he has not attracted any adverse comment. The testimonials, while making no reference to the offence, point towards a person of good repute amongst those who deal with him in his business operations. I accept Mr Hajjar’s submission and agree that they are to be given reasonable weight. In my view, Mr Bek has not demonstrated sustained serious misconduct since the events that lead to his conviction. There is no reason to believe that he would not conduct his business activities in an honest manner.

49 Accordingly, the Commissioner’s decision is set aside. In substitution, the decision is made that the licence be granted.

50 I note that I agree with Mr. Hajjar’s suggestion that the Commissioner might give consideration to redrafting of the application form.

Orders

1. The decision of the Commissioner for Fair Trading to refuse the application by Mr Bek for a Pawnbroker & Second-hand Dealer licence is set aside.

2. In substitution, the decision is made that the licence be granted.