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Fuller v Chief Executive, Office of Fair Trading[2009] QDC 403

Fuller v Chief Executive, Office of Fair Trading[2009] QDC 403

DISTRICT COURT OF QUEENSLAND

CITATION:

Fuller v Chief Executive, Office of Fair Trading [2009] QDC 403

PARTIES:

MARK TREVOR FULLER

(Applicant)

AND

THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING

(Respondent)

FILE NO/S:

DC No2603/08

DIVISION:

Appellate

PROCEEDING:

Application for leave, s 101(1) Commercial and Consumer Tribunal Act 2003

ORIGINATING COURT:

Commercial and Consumer Tribunal

DELIVERED ON:

18 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2009

JUDGE:

Irwin DCJ

ORDER:

  1. Application for leave to appeal allowed.
  2. Finding made by Commercial and Consumer Tribunal that the applicant is not a suitable person to hold a licence confirmed.
  3. Order made by the Commercial and Consumer Tribunal in relation to penalty varied by substituting a disqualification period of two years from 26 August 2008 during which the applicant is not to hold any licence or certificate under the Property Agents and Motor Dealers Act 2000, and from being an executive officer of a corporation that holds a licence under the said Act.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – CONSTRUCTION OF STATUTORY PROVISIONS – QUEENSLAND – LICENCES – where the respondent is a licensed real estate agent – where the issues were whether the respondent is a “suitable person” to hold a real estate licence and if not, what is the appropriate penalty – where the Magistrates Court convicted the respondent of stealing – where no conviction was recorded – where in disciplinary proceedings the Commercial and Consumer Tribunal erroneously proceeded on the basis that a conviction had been recorded – where the Tribunal erroneously proceeded on the basis that it had no discretion to disregard the subsisting conviction in the Magistrates Court – where the Tribunal erroneously proceeded on the basis that the respondent’s plea that he did not commit the offence was not available as a defence in the disciplinary proceeding – where the Tribunal erroneously proceeded on the basis that in order to mitigate penalty there was an onus on the respondent to prove that he did not commit the act constituting the offence and did not commit the offence – where the Tribunal erroneously proceeded on the basis that the minimum period for which the respondent could not hold a licence was 5years and used that as a starting point for determining penalty – whether in these circumstances regard can be had to the facts and circumstances surrounding the alleged offending in order to determine whether the respondent is a “suitable person” on the basis of his character and “another thing” under the Property Agents and Motor Dealers Act 2000 – whether the offending conduct justified the disqualification of the respondent’s real estate agent’s licence

Commercial and Consumer Tribunal Act 2003, s 4 7(4), s 100(1), s 101(6), s 106(1), s 107

Criminal Code (Qld) s 398(1)

Criminal Law (Rehabilitation of Offenders) Act 1986, s 3, s 5(2), s 5(3)

Evidence Act 1977, s 79(2), s 79(3)

Penalties and Sentences Act 1992, s 12(3)(a)

Property Agents and Motor Dealers Act 2000, s 10(1), s 10(3)(a)(i), s 10(3)(b), s 26(1)(b), s 26(1)(d), s 26(2), s 28(1)(a), s 28(1)(g)(i), s 28(1)(i), s 32(1), s 32(2), s 142(1), s 142(3), s 145A(1), s 145A(3), s 181(1), s 181(3), s 184A(1), s 184A(3), s 219(1), s 219(3), s 222A(1), s 222A(3), s 289(1), s 289(3), s 292A(1), s 292A(3), s 4 96(1)(g)(i), s 4 97, s 529(1), s 529(2), Schedule 2

Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321, cited

Briginshaw v Briginshaw (1938) 60 CLR 336, applied

Everett v The Queen (1994) 181 CLR 295, cited

Filippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 96, applied

GAS v The Queen (2004) 217 CLR 198, cited

Hadroj v Director-General, Department of Fair Trading [2002] NSWADT 95, cited

Hartwig v P.E. Heck [2007] FCA 1039, cited

House v The King (1936) 55 CLR 499, applied

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 121, cited

Liukania v The Chief Executive of Tourism, Fair Trading and Wine Industry Development [2007] QCCT PAMD 50, applied

New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420, cited

Monte Carlo Caravan Park Pty Ltd v Curyer [2007] 2 Qd R 57, cited

Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387, cited

R v Gordon; ex parte Cth DPP [2009] QCA 209

Raymond Robbins v Business Licensing Authority (2002) VCAT 457, cited

Re Bell [2005] QCA 151, cited

Rejfek v McElroy (1965) 112 CLR 517,applied

Sobey v Commercial and Private Agents Board (1979) 20 SASR 70, cited

Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218, cited

Tamawood Ltd & Anor v Paan [2005] QCA 111, cited

The Chief Executive, Department of Fair Trading and Wine Industry Development v Hollow [2004] QCCT PAMD 59, cited

The Chief Executive, Department of Fair Trading and Wine Industry Development v Matheson [2006] QCCT PAMD 29, distinguished

The Chief Executive, Department of Tourism, Racing and Fair Trading v Gunther & Ors [2004] QCCT PAMD 68, applied

The Queen v Wilton (1981) 28 SASR 362, cited

Trlin v Department of Fair Trading (1999) NSWADT 72, cited

COUNSEL:

A.A. Evans appeared for the applicant

R.A. Danen appeared for the respondent

SOLICITORS:

Zande Law appeared on behalf of the applicant

Office of Fair Trading, Department of Justice and Attorney-General appeared on behalf of the respondent

Background

  1. [1]
    Mr Fuller, the applicant was a licensed real estate agent under the Property Agents and Motor Dealers Act 2000 (“the PAMDA”) from 4 May 2007, and expiring on 4 May 2010.  On 26 August 2008 the Commercial and Consumer Tribunal (“the Tribunal”) found Mr Fuller had been convicted within the specified time of a serious offence and that he was not a suitable person to hold a licence.  In dealing with these issues, the Tribunal’s jurisdiction was disciplinary rather than penal:[1]  its jurisdiction was conferred by s 497 and s 496(1)(g)(i) of the Act.  The Tribunal’s powers where it finds a person guilty of a disciplinary charge are conferred by s 529(1) of the PAMDA.[2]
  1. [2]
    On that date the Tribunal made an order that Mr Fuller was disqualified for seven years from holding any licence or registration certificate under the PAMDA, and from being an executive officer of a corporation that holds a licence under that Act.[3]  He was also ordered to pay the costs of the respondent Chief Executive, Office of Fair Trading (“the Chief Executive”).
  1. [3]
    Mr Fuller now seeks leave to appeal against the Tribunal’s decision.  An appeal against such a decision, under s 100(1) of the CCTA lies, only on the grounds of jurisdictional error or error of law.  Leave to appeal is required by that provision.
  1. [4]
    It is contended by Mr Fuller that the Tribunal erred in law by:
  1. (i)
    imposing a manifestly excessive penalty; and
  1. (ii)
    giving consideration to his conviction for stealing in the Magistrates Court on 18 December 2007 when that conviction was not recorded.

Mr Fuller also argues that there was a miscarriage of justice because of the way he conducted his defence before the Tribunal, in that he failed to defend the proceedings on the basis that this conviction should not have been relied upon by the Chief Executive in bringing disciplinary proceedings.  This issue is clearly inextricably related to ground (2).  It will not be necessary for me to consider it further, if I grant leave and am satisfied that there was an error of law on that basis.[4]

Application for leave to appeal

  1. [5]
    As was said in Fillipini applying Monte Carlo Caravan Park Pty Ltd v Curyer [2007] 2 Qd R 57, it is well settled that leave to appeal will be granted where the decision in question is attended by sufficient error to warrant its reconsideration and where it is the cause of a substantial injustice which would be corrected on appeal.[5]  An appropriate approach is to hear the arguments on the application for leave and as to the substance of the appeal together.
  1. [6]
    Because Mr Danen, counsel for the Chief Executive conceded during submissions that the Tribunal appears to have erroneously acted on the belief that a conviction was recorded I granted leave to appeal at that stage.  However, because my reasons for this conclusion are relevant to my decision as to the substance of the appeal, it is convenient to set out in detail my reasons for doing so.
  1. [7]
    These reasons relate to Mr Fuller’s contention that the Tribunal erred in law by giving consideration to his conviction for stealing in the Magistrates Court on 18 December 2007.  Associated with this contention was argument that there was an error of law in finding pursuant to s 26 of the PAMDA that he could not hold a licence before 18 December 2012 as such a construction relied on this unrecorded conviction.[6]
  1. [8]
    This issue arises because the gravaman of the disciplinary proceeding started by the Chief Executive against Mr Fuller by an application under s 106(1) of the CCTA was that he is not a suitable person to hold a licence (s 496(1)(g)(i) of the PAMDA) on the basis of particulars that:

“…

  1. On 12 November 2006 [he] went to the Albany Creek Centro Shopping Centre, 700 Albany Creek Road, Albany Creek and stole a small red five head vending machine, the property of Alan Edward Kew.
  2. Shortly after this incident police were contacted by Kew who had identified [him] as the person removing the vending machine from CCTV footage of the incident.

…

  1. [He] contested the charge of stealing (s 398(1) Queensland Criminal Code) and was found guilty of the offence.
  2. [He] was convicted before the Petrie Magistrates Court on 18 December 2007 for an offence of stealing (s 398(1) Queensland Criminal Code).  No conviction was recorded.  A copy of the certificate of conviction is attached to this application …”
  1. [9]
    The certificate of conviction which together with the application, was Exhibit 1 before the Tribunal expressly stated:

“A conviction was not recorded.”

The Chief Executive has never suggested otherwise.  The Tribunal Member also recognised this in his decision.

  1. [10]
    Exhibits 2 and 5 also related to the proceedings before the Petrie Magistrates Court.  These were respectively, the magistrate’s decision and the transcript of the first day of that hearing.  The transcript which encompassed the prosecution case was handed to the Chief Executive’s counsel by Mr Fuller.  It was tendered by counsel after the Tribunal Member said that it should be in evidence.  Mr Fuller clearly supported this approach because he wanted the Tribunal Member to examine it, particularly in relation to the evidence of Ms McKeown,[7] the retail manager of the shopping centre.
  1. [11]
    The significance of this conviction to the Tribunal’s finding that he was not a suitable person to hold a licence and the penalty imposed, is readily apparent from the Member’s decision.
  1. [12]
    Mr Fuller’s defence to the disciplinary charge is that he did not commit the offence, and that he has been wrongly convicted.[8]  The Tribunal Member found that this plea is not available as a defence. His reasoning commenced with the proposition that “it is extremely doubtful that this tribunal could treat this conviction as ineffective.”  Reference was then made to s 79 of the Evidence Act 1977 (Qld) (“the EA”) which permits proof by tender of the conviction, although such proof is not conclusive, and may be rebutted.  However, he considered that the PAMDA seems to rule out such an exercise in this proceeding.  This was on the basis of the following reasoning:

“11. … The terms of section 26 bind the tribunal in the exercise of its jurisdiction under section 496 and 529.  By definition in section 26(1) ‘a person convicted within the preceding 5 years of a serious offence is not a suitable person’, and under section 26(2) ‘an individual who is not a suitable person cannot hold a licence’.  The determining factor is the existence of a conviction.

…

  1. The unqualified prescription in section 26 of PAMD Act is that a person convicted of a serious offence within the preceding 5 years is not a suitable person to hold a licence.  This suggests that an appeal against conviction is the only available means by which a licensee may avoid the stated consequence of the conviction is to appeal against it.  It may be that section 26 is undesirably rigid, but as I read it, its consequences are automatic, and the Tribunal has no discretion to disregard a subsisting conviction of the prescribed kind.  Mr Fuller’s plea is therefore not available as a defence to the present application.”
  1. [13]
    However, the Tribunal Member considered it would be relevant to mitigation if Mr Fuller could show that he was wrongly convicted.  He said that this would have a substantial impact on the orders that the Tribunal would make, and:

“Indeed I would not make an order to his disadvantage beyond the minimum that the statute required.”

It is clear that because of s 26(1)(b) he proceeded on the basis that this minimum period for which a convicted person could not hold a licence was five years.  He said about this:

“41. For the reasons given above in paragraphs 11 to 13, both the Tribunal and the Chief Executive are bound by statute to ensure that, in a case such as the present, the relevant convicted person does not hold a licence for a period of at least 5 years after the date of the relevant conviction.  In Mr Fuller’s case this means not before 18 December 2012, which is more than four years from now.”

It is this finding which is the subject of Mr Fuller’s argument at paragraph [7] above.

  1. [14]
    The Tribunal Member then proceeded to review the conviction on its merits, so far as the evidence before him permitted this. He then stated with reference to s 79(2) and (3) of the EA that even in a court of law, the onus would be on Mr Fuller to prove “the contrary” that is, that he did not commit the acts etc that constitute the offence.
  1. [15]
    This is consistent with what the Tribunal Member said to Mr Danen during the proceedings, as follows:[9]

“But as I read section 79 of the Evidence Act you’re entitled to prove the fact that Mr Fuller has been convicted and having proved that then that is evidence of all the elements in the charge.

…

And then that can only be contradicted by specific evidence to the contrary.”

  1. [16]
    Mr Fuller gave evidence on oath adopting his written submissions in relation to the substance of the complaint and penalty (Exhibit 4) and was cross-examined by Mr Danen.  During this cross‑examination he was questioned by counsel and the Tribunal Member on the basis that what he said was contrary to the magistrate’s findings, e.g. that it was contrary to a determination by the magistrate that the machine taken from the shopping centre was a five head vending machine.[10]
  1. [17]
    In his decision, the Tribunal Member described the magistrate’s decision as “careful” and said that on the face of it, he gave “convincing reasons for his conclusions”. In keeping with this he observed during argument that several defences were run and each of them had been rejected.[11]
  1. [18]
    Significantly the Tribunal Member took this approach to the magistrate’s determination as a result of the magistrate’s examination of the CCTV footage which is referred to in paragraph [16] above.  This is illustrated by the following exchange with Mr Fuller:[12]

623

TM

But the CCTV footage showed the machine that was actually taken away.

624

MF

Correct.

625

TM

And the Magistrate’s looked at it.  It was a big issue in the case.

626

MF

Yes, correct.  Absolutely.

627

TM

And he was satisfied that he could see a fifth head.

628

MF

I’m hearing what he’s saying but I couldn’t see it when he showed me even on his enhancement.  Neither could my barrister.  Neither of us could see it.

629

TM

He says at page fourteen of his findings from a digital observation of the video, especially as enhanced by the more modern court equipment it would appear there from that there were in fact four heads from the bigger machine, together with a darker, redder object constituting the fifth head.

630

MF

Well I’m not quite sure how he could have said it was a redder object because the tape was in black and white.  They’re black and white tapes.  So it wasn’t in colour.

631

TM

That surprises me that last assertion.

  1. [19]
    Subsequently Mr Danen advised that the shopping centre management had confirmed the footage had been in colour for a period of time which included the date on which the machine was taken.  The Tribunal Member responded, that this was a very important point on credit and said to Mr Fuller, “If you’ve told me a lie about that … I find it hard to credit you.”[13]  This led to the following exchange:[14]

688

MF

The imagery was very grainy.  My previous life between 1981 and 1989 was, I was in the Royal Australian Navy.  I was discharged on, on the grounds that my, I had a colour vision in my left eye, which I do have.  But to me, because it was grainy, it looks black and white.  It’s not that I’m lying deliberately.

689

TM

Dear, dear me, what next …

690

MF

I’m hearing what you’re saying but I’m not trying to be defensive on it.  To me it looked black and white.   And I haven’t seen, and in fairness to me.  I haven’t seen that now since …

691

TM

Well you thought that would be a good thing that couldn’t be disproved that would make the magistrate’s decision look silly.

692

MF

Well, why, if you want to call it in here, why don’t we call it here and have a look at it, that my credibility isn’t at stake.  That the imagery that he was viewing wasn’t a clear, wasn’t as clear as what it could be.  What, I suppose the point I’m making is it’s not like looking

693

TM

You were giving evidence about red heads and yellow machines and so on …

694

MF

Yeah, red heads.

695

TM

And not a word about this blindness, this blind condition as to colour.

696

MF

Fair call.

697

TM

You can’t tell colours at all.

698

MF

I can tell colours.  I now that you’ve got a reddish black tie on.  But what, I suppose what I’m saying to you is that the imagery on the screen is not clear.  And to me that looks black and white.

699

TM

Well that’s something else.  That’s something else entirely.

700

MF

It doesn’t look, it’s not like look, I suppose the argument is it’s not like looking at a colour television set where it’s crystal clear.  It’s nowhere near that.

701

TM

That’s another point.  The point is whether the CCTV was in black and white or colour.

702

MF

I understand.

703

TM

When the magistrate’s findings were read to you that it looked redder, you refuted that by saying the CCTV was black and white.

  1. [20]
    This discussion also included a statement by the Tribunal Member, “I find it hard to credit that [the magistrate] would talk about something being redder if he had a black and white image in front of him.”[15]
  1. [21]
    Subsequently affidavits were provided by the shopping centre manager and the police prosecutor. The former confirmed that the CCTV footage in place at the relevant time recorded in colour. The latter confirmed that the exhibit footage was in colour.
  1. [22]
    The Tribunal Member specifically referred to Mr Fuller’s evidence on this issue in the course of his decision in terms that suggests it contributed to his belief that during the Tribunal proceedings, he had been tailoring his evidence to fit in with whatever facts are clearly established against him, and that he is ready to confabulate in order to persuade, and will say anything that he thinks will advance his position.
  1. [23]
    I consider that these findings adverse to Mr Fuller’s credibility were made in consequence of explanations he made in an attempt to discharge the onus to prove that he was wrongly convicted.
  1. [24]
    In my view the Tribunal was wrong in finding that because Mr Fuller had been convicted of a serious offence, the effect of s 26 was that his plea that he did not commit the offence and he had been wrongly convicted, was not available as defence to the application; and that he was not a suitable person to hold a licence and that the minimum period for which he could not hold a licence was five years.  It was also wrong in proceeding on the basis that there was an onus on Mr Fuller to prove that he did not commit the acts etc that constitute the offence and therefore he was wrongly convicted.
  1. [25]
    This is because no conviction was recorded against Mr Fuller and a conviction for the purpose of s 26(1)(b) must be recorded by the court.
  1. [26]
    Section 26 provides:

“(1) An individual is not a suitable person to hold a licence if the person is—

…

  1. (b)
    a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence;

…”

Under Schedule 2 of PAMDA defines “serious offence” to include an offence involving dishonesty punishable by 3 or more year’s imprisonment.  Mr Fuller was convicted of such an offence.[16]  However, he has not been convicted for the purposes of s 26(1)(b).  The term “conviction” is defined in Schedule 2 as:

“includes a plea of guilty or a finding of guilt by a court, but does not include a plea of guilty or a finding of guilty by a court if no conviction is recorded by the court.” (my emphasis)

I consider that this definition applies to “convicted” in s 26(1)(b).  This was not disputed by Mr Danen who conceded that to be convicted for the purposes of this section requires that a conviction is recorded.  The terms are used interchangeably in PAMDA as demonstrated by s 142(1) and (3), s 145A(1) and (3), s 181(1) and (3), s 184A(1) and (3), s 219(1) and (3), s 222A(1) and (3), s 289(1) and (3) and s 292A(1) and (3).  As these provisions are expressed similarly I adopt s 142 as an example:

“(1) This section applies if—

  1. (a)
    a person is convicted of an offence against section139(2), 140(2) or 141(6); and
  1. (b)
    the court convicting the person is satisfied on the balance of probabilities that the person, in connection with the offence, has recovered or retained from someone (client) for whom the person performed an activity an amount to which the person is not entitled.
  1. (2)
    The court must order the person to pay the amount to the client.
  1. (3)
    The order must be made whether or not any penalty is imposed on conviction.” (my emphasis)

Another example is s 105 which provides:

“(1) The registration certificate of a registered employee is cancelled if the employee is convicted of a serious offence.

  1. (2)
    the employee must return the certificate to the Chief Executive within 14 days after the conviction, unless the employee has a reasonable excuse.

… ” (my emphasis)

  1. [27]
    The definition of “conviction” in Schedule 2 is consistent with the approach taken in s 12(3) of the Penalties and Sentences Act 1992 (Qld) (“the PSA”) that:

“Except as expressly provided by this or another Act—

  1. (a)
    a conviction without recording a conviction is taken not to be a conviction for any purpose; and

… ”

The definition has the effect that the PAMDA does not expressly provide otherwise.

  1. [28]
    This was also the position with s 79 of the EA at the time of the hearing and decision of the Tribunal, which provided:

“(2) In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to an issue in that proceeding, that the person committed that offence.

  1. (3)
    In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.”

It was only subsequent to the hearing and decision on 25 November 2008 that an amendment to include a definition of “convicted” in s 79(1) came into force.[17]  From this date “convicted” in the section:

“means a finding of guilt for an offence on a plea or guilty or otherwise and whether or not a conviction is recorded.” (my emphasis)

The explanatory note concerning this amendment is:

“The purpose of this definition is to override section12(3)(a) of the Penalties and Sentences Act 1992, thereby ensuring that the reference to convicted in section 79 of the Evidence Act 1997 means found guilty, or having a plea of guilty accepted by a court, whether or not a conviction is recorded.”

Accordingly from 25 November 2008 it is expressly provided that s 79 applies in respect of a conviction without recording a conviction; and it is an example of a legislative provision which overrides s 12(3)(a).  It follows from the necessity of making this amendment that prior to that date s 12(3)(a) applied and s 79(2) and (3) did not apply in respect of a person who was convicted without a conviction being recorded.

Therefore, as conceded by Mr Danen the Tribunal Member was in error in relying on this conviction in the way he did.

  1. [29]
    The Tribunal erred in law in finding that Mr Fuller’s plea that he did not commit the offence and he was wrongly convicted was not available as a defence to the application.  This is because this finding was the result of his conclusion that the consequences of s 26 are automatic, and the Tribunal had no discretion to disregard a subsisting conviction of the prescribed kind.  For the reasons I have given in the absence of a recorded conviction against Mr Fuller for the offence, s 26 was not applicable and therefore its automatic consequences did not apply in this case.
  1. [30]
    For the same reason it was also an error of law to find on the basis of s 26 that he was not a suitable person and the minimum period of which he could not hold a licence was five years.  In relation to this the Tribunal Member said:

“40. I find that Mr Fuller has been convicted within the specified time of a ‘serious offence’ and that he is not a suitable person to hold a licence.  I have reached that view both on the statutory requirements of section 26 and 496 of PAMD Act, and also on the ordinary meaning of those words.”

  1. [31]
    While the Tribunal Member said that he also formed the view that Mr Fuller is not a suitable person on the ordinary meaning of those words, the decision contains no analysis as to how he came to that conclusion, unless it was on the basis that he had not discharged the onus to show that he was wrongfully convicted and the associated adverse findings to his credibility.
  1. [32]
    However, for the purposes of determining the leave application it is sufficient that there was an error in law in reaching this view on the statutory requirements of s 26.
  1. [33]
    This error can also be seen to have influenced the Tribunal in determining penalty. As stated it is clear that because of s 26(1)(b) the Tribunal Member proceeded on the basis that the minimum period for which he could not hold a licence was five years commencing from his conviction on 18 December 2007.  This is emphasised by his statement:

“42. Mr Danen, in his written submissions, sought a disqualification period of two years, but that is contrary to the minimum statutory consequences.  In any event I view the circumstances more seriously than circumstances that call for a two year suspension.”

In these circumstances it cannot be excluded that the Tribunal Member wrongly used the minimum statutory consequences under s 26(1)(b) of a finding that Mr Fuller was not a suitable person to hold a licence as a starting point for determining the penalty, and therefore imposed a penalty that exceeded that level.  Such an approach involved an error of law in circumstances where that provision did not apply because no conviction had been recorded against Mr Fuller.  To adopt the language of House v The King this involved acting on a wrong principle and allowed the decision to be affected by extraneous or irrelevant considerations, such as to entitle an appellate court to interfere with this exercise of the sentencing discretion.[18]

  1. [34]
    There was also an error of law by placing an onus on Mr Fuller to prove that he did not commit the acts etc that constitute the offence and that he was wrongly convicted.  The Tribunal found support for this approach in s 79(2) and (3).  However, this was an error of law because at the date of the disciplinary hearing and decision those provisions did not apply in respect of Mr Fuller against whom no conviction has been recorded.  As indicated this approach resulted in findings adverse to Mr Fuller’s credibility in consequence of explanations he made in an attempt to discharge the onus to prove that he was wrongly convicted.
  1. [35]
    For these reasons the Tribunal erred in law such that leave to appeal should be granted. I proceed to consider the appeal.

Appeal against finding that Mr Fuller is not a suitable person to hold a licence

  1. [36]
    On appeal, under s 100(6) of the CCTA I may confirm, annul, vary or reverse the Tribunal’s decision; or remit the case to the Tribunal for further hearing or rehearing; or make consequential or ancillary orders or directions.

Applicant’s submissions

  1. [37]
    On behalf of Mr Fuller, it was argued by Mr Evans during oral submissions that because the conviction should not have been relied upon and the conduct which led to it should either have been excluded from the proceedings or should not have been accepted by the Tribunal, those proceedings should have been dismissed unless there was other conduct by Mr Fuller that either challenged his character or suitability.  It was also submitted that in these circumstances he should not have been suspended.

Respondent’s submissions

  1. [38]
    Mr Danen argued on behalf of the Chief Executive that there was no error by allowing the conviction to be tendered as it was relevant to the application.  In support of this reference was made to the inclusion of the certificate of conviction as an annexure to the disciplinary application, Mr Fuller’s admission at a directions hearing that this certificate was correct, and Mr Fuller’s written submission to the Tribunal.[19]  Reliance was also placed on the Chief Executive clearly articulating that no conviction had been recorded.
  1. [39]
    It was submitted that despite the Tribunal Member’s “apparent error” in acting under s 26(1)(b), it was entirely appropriate for consideration of “the character of the person” or “another thing that the Chief Executive may consider under [the] Act” pursuant to ss 26(1)(d), 28(1)(a) and 28(1)(i) of the PAMDA in determining suitability to hold a licence.  Mr Danen asserted that the Tribunal may also have regard to a broad range of matters in determining suitability.[20]
  1. [40]
    Accordingly, he submitted that it was appropriate for the Tribunal to have regard to the facts and circumstances surrounding Mr Fuller’s offending, his conduct at the hearings before the Magistrates Court and Tribunal in determining his suitability to hold a licence.
  1. [41]
    In support of this argument Mr Danen also referred to s 28 and s 32 of the PAMDA as providing an exception both to s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (“the Rehabilitation Act”) and s 12(3) of the PSA.

Discussion

  1. [42]
    It is convenient to address the argument in paragraph [41] above as a starting point to the resolution of this aspect of the appeal.
  1. [43]
    Section 5(2) and (3) of the Rehabilitation Act is as follows:

“(2) A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person.

  1. (3)
    Subsection(2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made—
  1. (a)
    for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or

… ”

  1. [44]
    As I understand it, the argument is that in considering the suitability of licensees under s 28, the Chief Executive may make investigations under s 32(1) of the PAMDA to help decide this issue.  It is submitted that this is an inquiry for the purposes of s 5(3)(a) of the Rehabilitation Act and therefore s 5(2) does not apply.
  1. [45]
    It is also submitted that the extent to which the Chief Executive can go in the course of these inquiries informs the jurisdiction of the Tribunal when the Chief Executive applies to it under s 497 of the PAMDA to conduct a proceeding to decide whether grounds exist under s 496 for taking disciplinary action against a licensee.
  1. [46]
    In Hartwig v P.E. Heck,[21] Kiefel J explained s 12(3) of the PSA and s 5(2) of the Rehabilitation Act as follows:

“6. … Section 12(3) of the Penalties and Sentences Act (Qld) requires that no record be kept of a person’s conviction, except for the Court’s purposes concerning an appeal or subsequent offences.  It requires that it not count as a conviction for any purpose, other than those.  As McPherson JA pointed out in R v Gallagher (1999) 1 Qd R 200, that does not mean that there is no conviction in the usual sense of the word.  ‘Conviction’ usually refers to the Court’s acceptance of a verdict or a plea of guilty.

  1. Section 12(3) of the Penalties and Sentences Act (Qld) works with s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), which provides that a person shall not be obliged to disclose, or be asked to disclose, a conviction that is not part of that person’s criminal history.  The effect of the section is not to treat the conviction as not having occurred, but to expunge it from a person’s criminal history.  Its purpose is to permit them to conduct their lives, obtain employment, and other benefits, without having to divulge that aspect of their history.”

Having regard to s 12(3) the reference to a conviction must be to a non‑recorded conviction.

  1. [47]
    Section 5(3) has the effect of requiring a person to disclose a conviction that is not part of that person’s criminal history for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act.  In such circumstances the person is required to disclose a non‑recorded conviction.  This is because by virtue of s 3 of the Rehabilitation Act, “criminal history” is defined as the convictions recorded against a person in respect of offences.
  1. [48]
    While I accept that the Tribunal in the present case was conducting an inquiry pursuant to an authority conferred on it under s 497 and to that extent it is making an investigation that the Chief Executive may make under s 32 of the PAMDA about the suitability of Mr Fuller to hold a licence and that by virtue of s 5(3)(a) of the Rehabilitation Act it can require Mr Fuller to disclose his non‑recorded conviction for stealing, as an exception to the combined effect of s 12(3) of the PSA and s 5(2) of the Rehabilitation Act, this was not the position in the present case.  Mr Fuller had already disclosed this fact.  It is not disputed that as stated in the Further Outline of Argument on his behalf he disclosed the matter of the charge he was facing to the department when he applied for his licence and further advised them upon being convicted.  Therefore it was not necessary to require or request him to disclose this unrecorded conviction.
  1. [49]
    The real issue is the relevance of the fact of this conviction to the disciplinary proceedings before the Tribunal which were commenced against him by the Chief Executive as a consequence of this voluntary disclosure.
  1. [50]
    The fact is that despite s 5(3) of the Rehabilitation Act and s 32 of the PAMDA the conviction remains unrecorded with the result that as is properly conceded it is not a conviction for the purposes of s 26(1)(b) of the PAMDA.  Consistently with this it also cannot be taken into account when considering Mr Fuller’s criminal history under s 28(1)(g)(i) of the PAMDA for the purpose of deciding whether he is a suitable person to hold a licence.  This is because the definition of “criminal history” under Schedule 2 of the PAMDA is:

“the person’s criminal history as defined under the Criminal Law (Rehabilitation of Offenders) Act 1986, other than convictions for which the rehabilitation period has expired, and not been revived, under that Act.”

As a result for the purposes of s 28(1)(g)(i) the criminal history that the Chief Executive is entitled to consider is limited to convictions recorded against Mr Fuller.[22]  The Tribunal is necessarily in the same position.

  1. [51]
    Further in making an investigation under s 32 of the PAMDA as to whether Mr Fuller is a suitable person to hold a licence, the power under s 32(2) to ask the police commissioner for a written report about his criminal history, is similarly limited to a report about convictions recorded against him.  Although s 32(2) is expressed not to limit s 32(1) it is unlikely that the legislature intended that a non‑recorded conviction be considered for the purposes of the investigation, if the provision has been framed to exclude such convictions from the commissioner’s report.
  1. [52]
    The consistency with which the definitions of “conviction” and “criminal history” under the PAMDA limit the use that the Chief Executive and therefore the Tribunal can make of non‑recorded convictions in deciding whether an individual is a suitable person to hold a licence suggests that while as a matter of commonsense the fact of such a conviction would cause an investigation into this issue it is the conduct to which the conviction relates rather than the fact of the conviction itself that is the relevant matter for consideration.
  1. [53]
    I agree with Mr Danen that notwithstanding the error by the Tribunal in finding that Mr Fuller is not a suitable person to hold a licence on the basis of s 26(1)(b) of the PAMDA it was appropriate to have regard to the facts and circumstances surrounding the alleged offending to which the conviction relates in order to determine this issue on the basis of the relevant factors set out in s 28(1).[23]  It follows that I reject Mr Evans’ submission to the contrary which is summarised at paragraph [37] above.
  1. [54]
    The relevance of s 28 to this issue arises from the fact that s 26(1)(d) provides as an alternative basis for an individual not being a suitable person to hold a licence that the person is:

“a person the chief executive decides under section 28 is not a suitable person to hold a licence.”

Section 28(1) then sets out the relevant factors that must be had regard to in making that decision, and includes:

“(a) the character of the person;

…

  1. (i)
    another thing the chief executive may consider under the Act.”

I consider that s 28(1)(i) requires consideration of the objects of the PAMDA as set out in s 10.[24]

Pursuant to s 10(1) of the PAMDA, the “main object” of the Act is to provide a system of licensing and regulating persons as, amongst other things, real estate agents, that achieves an appropriate balance between the need to regulate for the protection of consumers and the need to promote freedom of enterprise in the market place.  Section 10(3) states that such objects are to be achieved mainly by ensuring that only suitable persons with appropriate qualifications are registered and by providing protection for consumers in their dealing with licensees:  see paragraphs (a) and (b)(i).[25]

  1. [55]
    As I have indicated although the Tribunal Member said he had formed the view that Mr Fuller is not a suitable person on the ordinary meaning of those words, the decision contains no analysis as to how he came to that conclusion.
  1. [56]
    In exercising my jurisdiction under s 100(6) of the CCTA I consider it is appropriate to rehear this disciplinary proceeding on the evidence placed before the Tribunal which I consider relevant and admissible for this purpose.  In this regard I am conscious that under s 47(4) of the CCTA the Tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate.[26]
  1. [57]
    Consistently with the view I have expressed in paragraphs [52] and [53] above I do not consider the fact of the conviction for the purpose of determining whether Mr Fuller is a suitable person to hold a licence.  Although s 28(1)(a) and (i) are not expressed in such a way that the definitions of “conviction” and “criminal history” apply to them, it would not be consistent with the limited use that can be made of non-recorded convictions for the purpose of the factors to which those definitions specifically apply, if the fact of a non‑recorded conviction could itself be a relevant matter for consideration for the purpose of their application.
  1. [58]
    Because the fact of Mr Fuller’s conviction is not a relevant matter for consideration in determining whether he is a suitable person to hold a licence, I do not apply the amended s 79(2) and (3) of the EA to place the onus on Mr Fuller to prove that he did not commit the acts which constitute the offence of which he was convicted.
  1. [59]
    In my view, the Chief Executive having started disciplinary proceedings against Mr Fuller on the grounds that he is not a suitable person to hold a licence, must prove this on the balance of probabilities.  Given that Mr Fuller has denied the central allegation of the particulars, that he stole the five head vending machine, the Chief Executive has the onus of proving this.  It is not for Mr Fuller to prove to the contrary.[27]
  1. [60]
    There has been no application to lead fresh evidence before me. The material before the Tribunal Member which I consider it is proper for me to consider is:
  • The application for disciplinary proceeding (Exhibit 1).
  • The submission in response by Mr Fuller (Exhibit 4).
  • The transcript of Day1 of the Magistrates Court proceedings (Exhibit 5).
  • The transcript of the Tribunal hearing.
  1. [61]
    The application and the submission in response are effectively the pleadings which put in issue whether Mr Fuller’s conduct involved stealing.  Although the application annexes the certificate of conviction and police brief I limit their use to being the trigger for the disciplinary proceedings, and the references to them in the application are qualified accordingly.
  1. [62]
    The transcript of Day 1 of the Magistrates Court proceedings was provided by Mr Fuller to the Chief Executive’s counsel.  As indicated he supported it being tendered because he wanted the Tribunal Member to examine it.  It effectively constitutes the prosecution case for the purposes of this rehearing.
  1. [63]
    The transcript of the Tribunal hearing contains Mr Fuller’s evidence for the purposes of the rehearing.[28]  I limit my consideration of it to his evidence while being mindful that as I have illustrated a number of his answers are coloured by the fact that they were explanations made in an attempt to discharge an onus that was wrongly cast upon him.  Further because findings adverse to his credibility were made by the Tribunal Member on the basis of such explanations, I adapt my approach to this rehearing accordingly.  In these circumstances any advantage that the Tribunal Member had in seeing and hearing Mr Fuller give evidence, is less relevant to my review of the evidence than it would be in other cases where I review the evidence, weigh the conflicting evidence and draw my own conclusions for the purpose of a rehearing.
  1. [64]
    I do not consider the magistrate’s decision (Exhibit 2) because of my view that it is the Chief Executive who has the onus of proof in these proceedings and it is for me to determine on the evidence which is properly before me whether I am satisfied on the balance of probabilities that he stole the five head vending machine as alleged, and if so whether he is not a suitable person to hold a licence.

Review of the evidence

  1. [65]
    As I have set out at paragraph [8] above the particulars relied on by the Chief Executive in support of the disciplinary charge included that on 12 November 2006, Mr Fuller went to the Albany Creek Centro Shopping Centre and stole a red five head vending machine the property of Mr Kew.  This is the gravaman of the disciplinary proceeding.  It is completely denied by Mr Fuller.
  1. [66]
    As also previously set out, the particulars included that Mr Kew identified Mr Fuller as the person removing this vending machine from CCTV footage of the incident.  Although Mr Fuller does not expressly deny this or any other particulars it is clear from his response that he was denying stealing Mr Kew’s machine because he was removing his own machine.
  1. [67]
    The balance of the particulars relevant to this issue are as follows:

“4. The respondent was questioned by Police on 13 January 2007 who denied stealing the property and denied being at the Albany Centro Shopping Centre on 12 November 2006.

  1. The Respondent told Police that he also had a lease to place vending machines in the Albany Centro Shopping Centre and in particular had two tall yellow bubble gum vending machines in the Centre at the relevant time.
  1. On 18 January 2007 the Respondent was questioned further regarding this matter.  The Respondent advised Police that he had removed the small red five head vending machine which was depicted on the CCTV footage.  The Respondent further advised Police that he had three machines in the centre, the two tall yellow bubble gum vending machines and a small red five head vending machine.
  1. On 29 January 2007 Police took up with the management of the Albany Centro Shopping Centre who confirmed that the Respondent only had a lease to place two tall yellow bubble gum vending machines in the Centre at the relevant time.”
  1. [68]
    Because Mr Fuller adopted his response as his evidence-in-chief before the Tribunal, the transcript of his evidence before the magistrate not being tendered in these proceedings, I will summarise it following my review of the prosecution evidence before the magistrate.
  1. [69]
    The prosecution witnesses were Mr Kew, Ms McKeown and Sergeant Palleschi who was the investigating officer.  Mr Fuller was represented by a barrister on this occasion.
  1. [70]
    Mr Kew gave evidence that he was a vending machine owner-operator through a trading agreement with Scanlans.  He had one red five head machine situated at the shopping centre.  The heads were also described as dispensers for products such as gumball.  There were slots for the insertion of coins.  He described the machine as having two model 80 heads at both the top and the bottom, with a smaller model 60 head which I understand to have been in the middle of the bottom row.  It had a shiny chrome stand.  His given name and phone number was inside the perspex.  There was a serial number on the back of the machine.
  1. [71]
    The machine was normally secured by a chain and padlock to a wall near the Jetset travel agency and a barbershop. It was opposite Australia Post. He had secured it to the wall after previous incidents when it had been broken into and money stolen. At least a year or more prior to its alleged theft by Mr Fuller, it had been wheeled into the toilets.
  1. [72]
    At the end of October or early November 2006 Ms McKeown told him of the need to resite it in order to put up Christmas decorations.  He was subsequently told that this had happened.  He did not know when it had been moved or where it had been moved to at this point.  However, after his wife had visited the shopping centre without seeing the machine he was advised over the phone by management that it had been moved to outside the Donut King shop.  He attended at the shopping centre and was unable to find it.  His evidence was that this occurred “days” after he was told it was going to be relocated, although he could not remember how long.  He also said that this was a week or so after the end of November.
  1. [73]
    When he was unable to find it he advised Ms McKeown and the police.  Subsequently he saw CCTV footage in which he recognised Mr Fuller walk up to the machine and wheel it out.  He said that this was a five headed red machine which he categorically said was his.
  1. [74]
    In re‑examination he was shown the CCTV footage which was an exhibit before the magistrate.  His evidence about this in re‑examination was as follows:

“Right.  Watch and explain what you see now.  Stop?- - That’s my machine being taken away.

Where?- - There.

How do you know it’s your machine?- - Because all the four heads are the same size and if you can play – rewind it a little bit.

How many heads?

BENCH: Four heads I think he’s said?- - Four heads are the same and then there’s the one in the middle at the bottom.  It’s just about seeing, I’m sorry, just about see another red head there.  See, all the fronts of these are all the silver where the – the coin slot is and they got red lids.  That – that – can you see the sort of dark shading?  That’s a – one of these – that’s one of these heads in the middle.  It’s smaller and it’s set back because, you know, allows me to get a bit more out the side.”

He then proceeded to identify Mr Fuller wheeling it, and referred to it having four wheels before saying:

“Get real close?- - You can see the sort of -----

Okay-----?- -  ----- chrome stand, it’s curved -----

Right?- -  ----- as opposed to – that’s just a square, not very fancy.  It’s -----

All right. Let me – let me as a question.  How many heads are on that machine?- - Two at the top, two at the bottom and one just sandwiched there, that dark line is one of these smaller heads.

Right.  Can we take it back again?  What can you say about the frame on that machine?- - It’s a chrome frame as opposed to this sort of frame.

Stop?- - It’s quite you know -----

Forward.

BENCH: So how many heads has that got?- - five heads.

Five heads?- - Yeah.

…

BENCH: No where – could you point out the five so MrKelso[29] can see too?- - Mmm.  Yeah.  Well, you can see the – I – I spray the – middle head myself so it’s a darker colour red.  As you can see that’s – that’s the sort of one – faded red and that’s quite a dark one but if you bring it up here you can see it’s -----

No, but how many heads are there?  Could you point them out?- - Yeah.  One, two, three, four and then five there.

Okay.

SGT McBAIN:[30] Okay?- - Right.  There you go.  You can see it a bit clearer there, see.  It’s a dark line there and that’s the – you can see there’s quite a – a tiny gap there and there’s quite a big gap between that machine and that machine.  That’s because there’s an extra head fitted in there.

So you can categorically say that’s your machine?- - Yeah, definitely.”

I note that Mr Fuller’s barrister did not seek leave to cross‑examine Mr Kew about this evidence that this machine was a five header.  As a result no contrary proposition was put to him for comment.

  1. [75]
    Regrettably the CCTV footage was neither available to the Tribunal nor to me. Towards the end of the hearing the Tribunal Member indicated that he would be assisted by it and granted both parties leave to produce the CCTV footage if they were able.[31]  Given that affidavits by the shopping centre manager and police prosecutor confirming that the CCTV footage in place at the relevant time and the exhibit footage, respectively was in colour were filed on behalf of the Chief Executive but the exhibit was never produced by either party, it can be assumed that it was no longer available.[32]
  1. [76]
    Mr Kew said that he had known Mr Fuller for three years or more.  This is because Mr Fuller had a friend who lived across the road from Mr Kew and they both had vending machine trading agreements from the same company, Scanlans.  He said that they had borrowed from each other and had conversations about vending machines.
  1. [77]
    Prior to his machine being moved, Mr Kew had become aware that Mr Fuller had machines at the shopping centre.  He was disappointed, and described himself as being upset about this.  As a result, at around the same time that he was told by shopping centre management about the need to resite his machine, he advised them about his disappointment that Mr Fuller had been allowed to put his machines there.
  1. [78]
    In his evidence-in-chief he was asked:

“----- did you see any other machines there?- - No.  I think the defendant may have had a couple of machines which I was a bit disappointed with because I’d already ------

…

I’d asked the centre management about putting other machines there, because it was a good site, and they told me no, and I’ve asked them on a few – few occasions.  The next thing I know there is another two machines on site which I was a bit disappointed about.  And you know my machine was gong to be moved and I don’t now where it was going to be moved.  It – you know, it seemed like I was going to be losing out for -----

…

Now, sorry you said you were disappointed with what?- - Because I’d – I’d already asked him if I could place the machines on the site and they told – you now, told me I couldn’t and then they let a competitor put machines on site.

…

SGT McBAIN: When you say a competitor, they let a competitor put other machines on the site.  What sort of machines were they?- - They were a spiral sort of machine.  Nothing like that the – machines I got there.”

He said they were yellow in colour.

  1. [79]
    He did not mention that Mr Fuller also had a four header red machine at the shopping centre until he was asked about this in cross‑examination.   When he asked why he had failed to mention this his reply was:

“Because I wasn’t asked – I was asked about these – these machines.”

However, it is apparent that in evidence-in-chief he was asked the open-ended question, “----- did you see other machines there?” and replied, “No, I think the defendant may have had a couple of machines …” and added, “The next thing I know there is another two machines on site.”

  1. [80]
    Under cross‑examination he said that this red machine was hidden between the two yellow machines.  He said that it was right on the wall outside Coles, by a chocolate skill tester vending machine; and was closer to Coles than any other shop.  On the basis of cross‑examination it would appear that the Donut King shop was near Coles.  He was unable to say when he last saw the machines there.
  1. [81]
    He also made the point that the red machine should not have been there if Mr Fuller had an agreement with the shopping centre to place two machines there.  Accordingly, when he was told this by Ms McKeown, he told her that Mr Fuller had three.  She replied that it would be taken out.
  1. [82]
    He said that Mr Fuller’s machine had a classic head, which was completely different to his;[33] and that it also had a completely different stand – a basic galvanised steel stand compared to his shiny chrome stand which was particular to his machine.  Although he could not precisely remember the configuration of Mr Fuller’s machine, he said that, “it was not the same configuration” as his.
  1. [83]
    He also testified about an incident which happened on 22 March 2008 when Mr Fuller visited his friend who lived across the road to Mr Kew.  The evidence was that Mr Fuller stopped his vehicle at the top of Mr Kew’s driveway and said they were being a bit stupid about the way they were handling things, and they could sort it out the next day if Mr Kew wanted to.  Mr Kew replied, “I’m not the one going around taking other people’s machines”, and Mr Fuller left saying, “I’m going to screw you on every site that you’ve got.”  In cross‑examination he conceded that he had also said to Mr Fuller words to the effect, “I’ll take you to court” as part of this exchange.
  1. [84]
    Ms McKeown testified that after an approach from Mr Fuller she entered into a licensing agreement for him to place two, of what she described as “gumball” machines in the shopping centre.  They were to be yellow in colour.
  1. [85]
    She said that Mr Kew already had a similar agreement for one “gumball” machine.  This was a red machine which was placed against a wall near a barber’s shop and travel agency.  She walked past it every day to get to her office.  She could not say how many heads or dispensers it had.
  1. [86]
    Her evidence was that Mr Kew was a bit upset that she had allowed his competition, Mr Fuller into the centre.  She had not known that Mr Fuller had placed an extra machine there until she was told by Mr Kew.  It had not come to her attention on her daily walkarounds.  She subsequently saw that Mr Fuller had placed this extra machine outside Coles and next to the chocolate skill tester machine.  She saw that it was a red machine similar to that of Mr Kew.  She could also not say how many heads or dispensers this machine had.
  1. [87]
    She said that she phoned Mr Fuller and asked him to come and collect it.  He did not object to this request, although she did not recall him indicating a timeframe in which he would do so.  Initially her evidence was that she did this in September or October.  However, she did not note the conversation in her diary, and under cross‑examination accepted that it could have been in October.  She was positive that it was not in November because she was getting the shopping centre ready for Christmas at this time.
  1. [88]
    She said that when Mr Fuller came to pick up his machine, it had already been removed to the storeroom where marketing items were kept.  Although she said in evidence-in-chief that she and a cleaner or security guard rolled the four wheel machine to the store room, under cross‑examination she agreed that someone other than them may have done this.  She said that this was done before the Christmas decorations were put up on 9 November 2006.  She thought that this was in September or October.  However, she said that she did see it in the storeroom.
  1. [89]
    Having agreed that there was no mention in her statement that the gumball machine was moved to any storeroom, the cross‑examination proceeded as follows:

“I put it to you that indeed the machine wasn’t moved to any storeroom before it was collected?- - The only thing that I would change in that statement that it wasn’t promptly removed.

Right so the statement’s incorrect?- - Just the last sentence.  It was removed.

Yes?- - We did relocate it to a storeroom.

Yes?- - I do know that because the storeroom is a very narrow full storeroom.  Anything in the storeroom you have to basically climb over it if you want to get to the back of the storeroom.

Well as I understand it, you don’t know whether or not you took it to the storeroom or not.  That might have been someone else’s task -----?- - Yes.

----- is that so?- - Someone else may have.

----- you never saw this particular machine in the storeroom?- - Well, I did see it in the storeroom.

Right?- - As I said, if you need anything in that storeroom you have to climb over things to get things, it’s chock-a-block full -----

Yes?----- and I can recall climbing over the gumball machine.

All right.  You’d agree you’re not an expert on the identification of gumball machines?- - No.  Besides the difference with those yellow ones and red ones and -----

So it’s either a yellow one or it’s a red one with a number of slots that you could put your money.  You’d agree with that?- - Mm-hmm.”

She agreed that she could not recall whether or not she was there when it was collected.  In addition, she could not say when it was collected.  There was no evidence that it was logged out; and there was no CCTV footage of it being collected.  She did not think that it was collected promptly.  However, she did think that it was removed before 9 November 2006 because the storeroom needed to be empty for marketing things leading up to Christmas.

  1. [90]
    Mr Kelso cross‑examined her about the identity of the machine which she saw in the storeroom as follows:

“All right.  But you were aware that you saw a gumball machine -----?- - Well it was the one located outside Coles.  As I said, I walked past Allen’s[34] machine every day to get to the office.

Right?- - So it wasn’t that one.

…

… I put it to you that you didn’t properly identify which machine you put in the storeroom before actually doing so?- - It would have been Mark Fuller’s machine and so -----

Well, you didn’t identify it yourself, did you?- - No, but I walked past Allen’s machine every day on the way to the office.

All right?- - I look at it and I – I don’t like the look of them, so I notice those machines.”

  1. [91]
    She testified that because Mr Kew’s machine was located in the position where the Christmas tree was going, she, together with a cleaner and a security guard, moved it to a pillar next to the kiddie ride, which is near the Donut King seats.  She was adamant that she was involved in doing this, as illustrated by the following exchange with Mr Kelso:

“… You perhaps didn’t do that yourself.  Someone else did that?- - No, I did that.  It was after hours so -----”

She had confirmed this by viewing the CCTV footage from 9 November 2006 in which she could see herself moving it with the cleaner and security guard.  She said it was moved so that the Christmas decorations could go up on that date.  There was a key to open the padlock in the office.  The place that it was moved to provided no facility to secure it, because the chain did not reach all the way around the pillar.

  1. [92]
    Her observations of the CCTV footage were made after Mr Kew had advised that his machine was missing.  As a result she identified Mr Kew’s machine was the one taken because she had physically moved it to the location from which she saw it taken.  Her evidence about the machine taken, given in the course of viewing the footage in court, was as follows:

“All right.  Whose machine is that one?- - They are Allen Kew’s machines.

How do you now they’re Allen’s machines?- - Because I physically moved them to that location the Thursday night previous to this theft.”

Righto.  Has the defendant’s machine ever been in that location?- - No.

How do you know that?- - Because his machine was located on the other side of Donut King outside Coles, but no gumball machine has ever been in that location.

Prior to moving it there?- - Prior – yes – prior to moving it there.

Right?- - you can see someone taking the gumball machines and wheeling them out- wheeling them back the way he came.

Keep going.  Righto, stop.  Can you look at that machine -----?- - Mm-hmm.

----- could you say that that’s the machine you placed -----?- - Yes.

----- that that’s – how can you say that?- - Because that was the one I moved two days prior.  Looks the same, it’s on wheels, the one I moved was on wheels, it’s the same machine I moved …”

Her cross‑examination on this included:

“… But there was a period of time when Allen’s machine was in a different location; that’s right isn’t it?- - Only when I moved it on the 9th.

Right.  Okay.  Well, I suggest to you that the machine that was located not far from Coles, about 15 metres up a couple of pillars, was indeed my client’s machine.  What do you say to that?- - Are you say directly outside of Coles?

You’ve had a look at the video?- - Yes.

You’ve had an opportunity to see where -----?- - Mm-hmm.

----- the machines were aligned?- - Yep.

I put it to you – I suggest to you that -----?- - No, that -----

----- that machine was indeed my client’s?- -  ----- that wasn’t – that was Allen’s machine -----

All right?--  -----which I have moved …”

In cross-examination she also agreed that machines had a habit of going walkabout and getting damaged in the course of attempts to get money and product out of them.

  1. [93]
    Sergeant Palleschi was assigned the investigation. After viewing the CCTV footage he saw Mr Fuller at his home on 13 January 2007.  Mr Fuller agreed to attend the police station where he voluntarily participated in a record of interview which became an exhibit which was played before the magistrate.
  1. [94]
    He did not recall the specific conversation with Mr Fuller at his home.  However, generally speaking it was in relation to the complaint, the reason for being there, and the wish to speak to him further about it.  Therefore it is reasonable to infer that Mr Fuller was told that the complaint concerned the alleged theft of a vending machine from the shopping centre.  This is consistent with his response as set out below.
  1. [95]
    Although this record of interview did not form part of the evidence before the Tribunal or this court, its content can be gleaned from Mr Kelso’s statements to the magistrate that “there aren’t any admissions at all” and “it’s completely self serving”.   This is in keeping with Particular No. 4 of the disciplinary charge, that during this interview Mr Fuller denied stealing the property and being at the shopping centre on the date of the alleged theft.  This particular is not contradicted.  At the conclusion of this interview he was arrested and served with a notice to appear for stealing.
  1. [96]
    On 18 January 2007 he received a message that Mr Fuller was trying to contact him.  When he returned the call, Mr Fuller indicated that he wished to attend the police station and view the CCTV footage which was mentioned in the first interview.  Again this exhibit which was played before the magistrate was not available to the Tribunal or myself.  However, Mr Kelso said that “admissions are made consistent with what the defence case is presently.”  In other words, that as particularised he admitted removing a red vending machine, but that it was his own machine.
  1. [97]
    The lease agreement was tendered. This confirmed that Mr Fuller was entitled to place two gumball machines in the shopping centre.
  1. [98]
    Mr Kew told him that he had the serial number for his vending machine.  However, he did not investigate this because he assumed that due to the passage of time and his understanding that these machines are easily dismantled and reassembled as different machines, the execution of a search warrant was not a viable option at this stage of the investigation.  He did not seek to examine any other CCTV footage which might have shown the respective machines because from previous experience he thought it would have been taped over by that time.
  1. [99]
    Mr Fuller’s response, which he adopted as his evidence-in-chief before the Tribunal,[35] included the following in Annexure B under the heading “Particulars”:

“1. It is true that I was issued with a real estate licence on 4th of May 2007.

May I add that I was transparent on my application and disclosed a potential court case which could affect my licence.

  1. I completely deny Point 2 under Particulars marked AnnexureA.

…

  1. Concerning Aspects of Respondent’s Conduct (page 4 of 8), I deny certain aspects of that paragraph.”

As indicated, paragraph 2 is a denial that he stole Mr Kew’s machine.  Paragraph 6 is a reference to a section of the Chief Executive’s submissions to the Tribunal on liability and penalty.  This is not part of the material that I am considering for the purpose of this rehearing.  However, I will refer to his specific denials in Annexure C to the extent that they are relevant to my decision.

  1. [100]
    Annexure C of Mr Fuller’s response insofar as is relevant to the issue of whether he is a suitable person to hold a licence is as follows:[36]
  • On 13 January 2007 at 9.30 am police arrived at his home and asked if he would be able to attend the police station to help in their inquiries in relation to a theft of a vending machine.  He said he would do so prior to opening up his display homes.  He attended at approximately 10.30 am on the same date.
  • It was not until he was at the station that he realised it was intended to possibly charge or accuse him of taking Mr Kew’s machine from the shopping centre.  At the end of the discussions, they did this.
  • It is true that he initially denied being at the shopping centre on 12 November 2006 at 9 o’clock, as it was a Sunday and he would normally be getting ready for work.
  • It was not until he got to work on 13 January that he realised that he did pick up equipment at approximately that time but he was still uncertain of the day.
  • On 18 January 2007 he contacted the police to view the CCTV footage on the advice given by his legal counsel.
  • With reference to the “Concerning Aspects of Respondent’s Conduct” submission, he completely denied where it states he offered an excuse that the equipment was actually his;[37] and states that until the second appointment with the police, they were not aware that he owned the same equipment as Mr Kew, it being he who brought it to their attention.[38]
  • Ms McKeown and Mr Kew admitted that in addition to the two gumball machines he was licensed to have at the shopping centre, he had another machine there.
  • Mr Kew admitted that he complained to the centre’s management about the third machine being there.
  • He never acted in a dishonest fashion, and at all times the management received commission on the third machine.
  • With reference to the evidence that prior to 12 November, a piece of equipment was put into the storage area, there was no CCTV footage as to who picked up that machine, as miraculously that footage had been taped over.  That machine could not be verified by Ms McKeown.  It should be noted that there was no signing out of that equipment.
  • Ms McKeown was convinced on the CCTV footage that he took the machine she knew as Mr Kew’s machine, even though they both had the same equipment by the same franchiser.
  • It was emphasised that he claimed to take a four header machine, as opposed to a five header machine that Mr Kew claimed he took.
  • Mr Kew’s machine was worth somewhere around $750.
  • He had a shed full of exactly the same equipment.  He could have claimed that he had made a mistake after checking his equipment, realised that he had picked up Mr Kew’s machine by mistake and put it back on site.  However, he stood firm as he knew then as he still knows now, that he took no-one’s equipment but his own.
  1. [101]
    In Annexure A of the response, Mr Fuller sets out his personal circumstances and background as follows:
  • At the time of the Tribunal hearing he was 47 years of age and was married with a 14 year old child.  He was paying a mortgage and supporting his child at a private school.
  • He entered the real estate market in 1989, selling new homes and house and land packages.  He had worked for more than 12 builders over that time.
  • He saw himself as a career salesperson in that industry.  He had not been the subject of any complaints to the Office of Fair Trading over this period, during which he had sold over 500 homes.
  • He was currently only selling homes for one builder with whom he had been associated for approximately 18 months.  He was running a marketing company, employing one salesman and a part‑time bookkeeper.
  • His business was situated at a Master Builders display village centre where he had two homes on lease backs.  He also displayed at another such village.
  • He and his wife also ran the vending machine business with some 450 heads at about 150 sites.  This business was run under a franchise which they had owned for approximately five years.
  1. [102]
    During cross-examination before the Tribunal, Mr Fuller said that he was not then using the licence because he had known of the pending hearing.[39]
  1. [103]
    He agreed that he had a considerable amount of experience in managing a vending machine business; and had a very good grasp on which machines were his or otherwise.[40]
  1. [104]
    He said that after the first police interview he did not go straight back to the police and tell them that he now thought that he had picked up equipment at the relevant time because he wanted to get legal advice before doing so; and he could not see his solicitor for some days.[41]
  1. [105]
    He agreed that in the first interview he had emphatically denied any involvement, and said that this was still the case.[42]  He added that:[43]

“I at no stage have ever stolen anybody’s vending machine equipment ever.”

This led to the following exchange with the member to clarify the position:

310

TM

Are you saying you didn’t take Mr Kew’s machine at all?

311

MF

That’s correct …

  1. [106]
    With reference to Ms McKeown’s evidence, which he described as “misty at best”, he said that she stated that he was asked to pick up a piece of equipment, and he did this on 12 November.[44]  He said that he walked in, picked it up and rolled it out the door.[45]  He agreed that he was the same person depicted doing this on the CCTV footage,[46] but this was his own machine.[47]
  1. [107]
    He said with reference to the machine he took:[48]

“As I said I know it was, I know what my equipment was.  I know that I had two display homes to open at ten o’clock.  And I certainly wasn’t going to, I certainly didn’t have time to, yeah and just sit there and glare at a piece of equipment.  You know I knew whose equipment it was.  It had my name tag on it.  My keys fitted that equipment and I had my stock in it. I didn’t need to sit there and dissect it.” (my emphasis)

  1. [108]
    His evidence was that he and Mr Kew had exactly the same equipment by the same franchiser.[49]  He also said that his machine was identical in appearance and had the same stand as Mr Kew’s machine.[50]
  1. [109]
    He said that on his instructions no defence of honest mistake was run before the magistrate. The defence was that it was not Mr Kew’s machine that he took out of the shopping centre.[51]
  1. [110]
    He said that the CCTV footage never clearly showed a five head machine.[52]  For example, his evidence on this point included the following statement:[53]

“The fifth head was a smaller head.  It was ducked behind two larger heads and all you could see on the CCTV footage was a shadow.  It, nothing was really clear that there was a fifth head there.  Like the other four heads were just in your face.  The other fifth head just wasn’t clear at all.”

  1. [111]
    He was critical of the quality of the footage. I proceed on this basis, which I note is consistent with the magistrate’s view that the picture produced was not of the best quality and left a lot to be desired.[54]
  1. [112]
    In his evidence, he said on a number of occasions that Ms McKeown gave evidence that the machine which he had at the centre was a four head machine that was red in appearance.[55]  This is not my understanding of her evidence.  As previously indicated, while her evidence was that it was a red machine similar to that of Mr Kew, she did not know how many heads or dispensers either machine had.  In any event, Mr Fuller said that this was the machine that he had removed from the centre.
  1. [113]
    Mr Danen asked him, “So effectively if for argument’s sake it wasn’t your machine then you’d agree that it was, you’d just made a simple mistake?”  And he responded, “Correct.”[56]
  1. [114]
    Mr Fuller added that on the suggestion of his solicitor in case he had picked it up by accident, upon becoming aware of the serial numbers of Mr Kew’s machine he spent 2½ days on a 1200 km trip looking at the equipment in his possession.  However, he was unable to line up a serial number on the 325 heads of the same product that he owned, and therefore he did not have it.[57]  He said that if the machine had been taken by an unknown third party it would not have ended up at one of his sites without him knowing.[58]
  1. [115]
    He rationalised that it must have been Mr Kew’s machine that was taken out of the storeroom.  He made reference to there being no sign-out procedure or CCTV footage of anyone picking up this piece of equipment;[59] and no one knew who picked it up.  Therefore, he said, “It mysteriously left.”[60]
  1. [116]
    He was cross-examined about his proposition in the response that the machine was worth somewhere around $750 as compared to his evidence before the magistrate that it was $1800 and submission on penalty by his solicitor that Mr Fuller thought it was worth about this amount.  The disparity between these amounts was used to discredit Mr Fuller before the Tribunal.  However, Mr Fuller had responded that $1800 was for a brand new machine[61] but that pursuant to the magistrate’s order he had replaced Mr Kew’s machine with a four head machine for which he had paid $700.  He said he had added a head to this and given it to Mr Kew with a stand.[62]  Having regard to this and the fact that prior to this cross‑examination, the Chief Executive had lodged written submissions with the Tribunal on liability and penalty which identified as a circumstances of mitigation that Mr Fuller had complied with the magistrate’s order to give Mr Kew a red five head machine, “such machine being valued at $750”, I consider his explanation about the differing values to be a reasonable one.  As a result it does not cause me to take an adverse view of his credibility.

Conclusion

  1. [117]
    The starting point in determining whether I am satisfied on the balance of probabilities that Mr Fuller stole Mr Kew’s five head vending machine as alleged is that there is no issue that he was the person who removed the vending machine from the shopping centre at the time and place alleged.  He agreed under cross‑examination that he was the person depicted doing this on the CCTV footage.  However, in circumstances in which he says that he was removing his own four head vending machine, the question becomes whether I am satisfied on the balance of probabilities that he removed Mr Kew’s machine as opposed to his own machine.
  1. [118]
    Mr Kew categorically identified the vending machine depicted as being removed on the CCTV footage as being his machine.  Although at one point of his evidence he described this machine as a four head vending machine, he pointed out to the magistrate what he said were five heads.
  1. [119]
    Mr Kew’s assertion that this machine had five heads was not challenged in cross‑examination.  Notwithstanding this, having regard to the special need for caution before convicting in reliance on the correctness of what is essentially identification evidence, I would not be prepared to find that Mr Fuller removed Mr Kew’s machine on this evidence alone.  This is because Mr Kew was upset that Mr Fuller, who was his competition, had been allowed into the shopping centre; the CCTV footage was not available for me to view; for the reasons given in paragraph [64] above, I do not consider the magistrate’s decision; and, in any event, the picture produced by the footage was not of the best quality and left a lot to be desired.[63]
  1. [120]
    However, there is other evidence of a circumstantial nature which it is highly relevant to consider.
  1. [121]
    Ms McKeown had phoned Mr Fuller prior to 12 November 2006 and asked him to come and collect his machine from the shopping centre.  He did not object to this.  She accepted that this call could have been made in October 2006 and she did not recall him indicating a timeframe in which he would do so.[64]
  1. [122]
    Ms McKeown gave evidence that following this she saw a gumball machine in the storeroom.  Although her evidence-in-chief was that she was involved in rolling Mr Fuller’s machine to the storeroom, she agreed in cross‑examination that someone other than her might have done this.  She had not said in her statement that the machine was moved to the storeroom.  However, I accept her evidence that she subsequently saw a gumball machine here because she had a specific memory of having to climb over one to get things in the storeroom.
  1. [123]
    I also conclude that this machine had been removed from the storeroom before 9 November 2006, despite her inability to recall whether or not she was there when it was collected, her inability to recall precisely when it was collected, the absence of evidence that it was logged out and the absence of CCTV footage of it being collected.  This is because also she gave evidence that she thought it was removed before 9 November 2006 because the storeroom needed to be empty for marketing things leading up to Christmas.  This was an important date for her in her capacity as retail manager of the shopping centre, as this was also the date that the Christmas decorations were put up; and it was the date on which she had been involved in moving Mr Kew’s machine for that purpose.
  1. [124]
    I also conclude that the gumball machine which she saw in the storeroom and which was removed before 9 November 2006 was not Mr Kew’s machine because I accept her evidence that although she was not an expert in the identification of gumball machines, she walked past Mr Kew’s machine each day on the way to the office.  She would have noticed it because she did not like the look of gumball machines.  This machine had been in this position before Mr Fuller’s machines were placed in the shopping centre.  Knowing the position of Mr Kew’s machine, as confirmed by the CCTV footage, she moved it on 9 November 2006 to a new place by opening the padlock to the chain which was secured to a post.  Mr Kew’s evidence was that his machine was secured in this manner.  There is no evidence that Mr Fuller’s red four head vending machine was so secured.  There was also no evidence that either of Mr Fuller’s other two yellow spiral machines at the shopping centre had been removed to the storeroom.  It is also clear that there were no other vending machines at the site.  Further, given Ms McKeown’s evidence that she noticed gumball machines, she can be expected to have noticed if Mr Fuller’s machine had remained on the premises with his other machines after she had asked him to remove it or after it had been removed from the storeroom.  In these circumstances, it is only Mr Fuller’s red four head vending machine which could have been in the storeroom and removed from there prior to 9 November 2009.
  1. [125]
    In coming to this conclusion, I accept her evidence as stated that on 9 November 2009 she was involved in moving Mr Kew’s machine to a new place.  This is confirmed by the CCTV footage for that date which she has subsequently viewed.  In these circumstances, she was adamant that she had done so, unlike her concession concerning whether she was involved in the earlier removal of Mr Fuller’s machine.
  1. [126]
    I accept Ms McKeown’s evidence that prior to moving Mr Kew’s machine to this new location:
  • no gumball machine had ever been in that location; and
  • Mr Fuller’s gumball machine had never been in that location.

Again, notwithstanding Ms McKeown’s lack of expertise in the identification of gumball machines, there is no reason to doubt this because of her evidence that she noticed these machines.

  1. [127]
    I also accept her evidence that on the CCTV footage of 12 November 2006 she saw that the machine which the defendant admits to removing from the shopping centre was taken from the location where she had physically placed Mr Kew’s machine on 9 November 2009.  This is not evidence of identification of this machine but evidence of a circumstance from which the identity of the machine can be inferred.
  1. [128]
    In circumstances in which I consider Ms McKeown to be an honest and accurate witness who has made appropriate concessions during evidence, I consider that the only rational inference that can be shown from these circumstances is that the machine removed from the shopping centre on 12 November 2009 by Mr Fuller was Mr Kew’s red five head vending machine, and not his own machine which had been removed previously.  I am satisfied of this on the balance of probabilities, having regard to the gravity of this finding.[65]  I would have been satisfied of this beyond reasonable doubt if this had been the applicable standard of proof.
  1. [129]
    I am also satisfied on the balance of probabilities that Mr Fuller did not act under a mistake that he was removing his own machine, let alone an honest and reasonable one.[66]  Not only have I concluded that his machine had been moved to the storeroom and had been removed prior to 9 November 2006, but he was adamant in his evidence that he took no-one’s equipment but his own.  For example, as quoted at paragraph [107] above, he said:

“… I knew whose equipment it was.  It had my nametag on it.  My keys fitted that equipment and I had my stock in it.”

Although he accepted during cross‑examination that if for argument’s sake it was not his machine he had just made a simple mistake, his evidence was that he made no mistake at all.  In the circumstances quoted above, there was no room for him to be mistaken when his machine was a four head vending machine and the one that he took was a five head vending machine which did not contain his nametag or stock.

  1. [130]
    In addition, I am also satisfied on the balance of probabilities that he told a deliberate untruth when he was first interviewed by the police on 13 January 2007 and it is reasonable to infer that he was told that there was a complaint concerning the theft of a vending machine from the shopping centre.  The deliberate untruth is that he denied being at the shopping centre on the date of the alleged offence.  His explanation is that he denied this because it was alleged to be at a time that he would normally be getting ready for work.  However, he said that later on 13 January he realised that he did pick up the equipment at approximately that time but was still uncertain of the day.
  1. [131]
    In my view, notwithstanding the passage of two months since the removal of the machine, a person confronted with an allegation of theft and who was truthful would at least recall that he had removed his own machine, or what he believed was his own machine, and concede the possibility that the allegation was a mistaken reference to his attending at the shopping centre at or about the alleged time for this purpose.
  1. [132]
    In these circumstances, I am also satisfied that this lie was concerned with the event connected with the offence and reveals a knowledge of it; and in addition, that he was lying because he was conscious that the truth would convict him.[67]
  1. [133]
    I am also satisfied on the balance of probabilities that not only did Mr Fuller take Mr Kew’s vending machine, which is something capable of being stolen and this machine has never been returned, but also that he did so fraudulently, in the sense that he had an intention to permanently deprive Mr Kew of it.  Accordingly, having regard to the gravity of the finding, I am satisfied to this standard that he stole this vending machine contrary to s 398(1) of the Criminal Code (Qld).  Again, I would have been satisfied of this beyond reasonable doubt if this had been the applicable standard of proof.
  1. [134]
    Therefore, I am satisfied that Particular 2 in support of the disciplinary proceeding started by the Chief Executive against Mr Fuller has been established, namely that on 12 November 2006 Mr Fuller went to the Albany Creek Centro Shopping Centre, 700 Albany Creek Road, Albany Creek and stole a small red five headed vending machine, the property of Alan Kew.
  1. [135]
    Although for the reasons given Particulars 8 and 9 relating to his conviction before the Petrie Magistrates Court on 18 December 2007 for an offence of stealing are no longer relevant, it is sufficient that one particular has been established as a basis for me to determine whether I am satisfied on the balance of probabilities that Mr Fuller is not a suitable person to hold a real estate agent’s licence.
  1. [136]
    As stated in Filippini:[68]

“By virtue of s 21(1), s 26 and s 28 of the PAMDA, the holder of a real estate agent’s licence must be a ‘suitable person’.  By virtue of s 28(1)(a) … of the PAMDA, a person’s character … [is] relevant to the suitability of a person.  Section 10(3)(a) of the PAMDA expressly contemplates that the objects of that Act ‘are to be achieved mainly by ensuring – only suitable persons … are licensed or registered’.  The disciplinary jurisdiction and powers of the Tribunal are one of the principal means whereby the privileges attaching to a real estate agent’s licence are available only to suitable persons.”

  1. [137]
    In Liukaina,[69] the Tribunal applied the decision of the Queensland Court of Appeal in Re Bell[70] that the suitability matters equivalent to those listed under s 28(1) of the PAMDA should first be considered.[71]  I agree that this is the correct approach, and as the Tribunal said in that case, it “would only be at the latter stage that I would take into account the various authorities … about what the common law and what various (potentially analogous) statutory provisions (not containing any elaboration of the various factors) have meant by a ‘suitable person’.”[72]  As in that case, this approach is supported by the use of the word “must” in s 28(1) and it is significant that s 28(1)(i) has, as a factor, “another thing the chief executive may consider under” the PAMDA.[73]
  1. [138]
    As already observed, the major factors here are Mr Fuller’s character (s 28(1)(a)) and “another thing” that may be considered under the PAMDA (s 28(1)(i)).
  1. [139]
    Since s 28(1)(i) designates a factor that is referrable to the objects of the PAMDA, as with the Tribunals’ decision in Liukaina,[74] I consider that there is little else which needs to be considered in terms of the authorities concerning other legislation which are referred to in the decisions which have been drawn to my attention, particularly those dealing with “fit and proper person” which has been held to be equivalent to “suitable person”.  Applying what was said by the Tribunal in that case to the legislation and circumstances relevant to my decision, given the breadth of the interpretation that has been given to “character”, given the interplay between character and my conclusion that Mr Fuller stole the vending machine contrary to s 398(1) of the Criminal Code (Qld), and given the ability to refer to other things that the Chief Executive may consider under the PAMDA, I do not consider that there is anything in this case that requires an exploration beyond these particular matters.  For instance, I consider that moral integrity and rectitude fall within character,[75] the nature of the industry involved and the public policy objectives of the legislation fall within s 28(1)(i),[76] and that the seriousness of the conduct involved comes within both categories.[77]  The same response can be given to the proposition of whether the person in question can be safely accredited to the public as a person to trust.[78]
  1. [140]
    Consistently with this in The Chief Executive, Department of Tourism, Racing and Fair Trading v Gunther & Ors,[79] the Tribunal had said with reference to whether the respondents were suitable persons:[80]

“158. In the Tribunal’s opinion, apart from honesty, knowledge and ability the following factors need to be taken into account:

  • the person’s moral integrity and rectitude of character (Sobey’s Case);
  • the nature of the industry involved and the public policy objectives of the legislation (Trlin v Department of Fair Trading (1999) NSWADT 72 (Trlin’s Case));
  • the seriousness of the conduct involved (Trlin’s Case); (Raymond Robbins v Business Licensing Authority (2000) VCAT 457);
  • whether the person in question can be safely accredited to the public as a person to trust (Sobey’s Case).”
  1. [141]
    The breadth of the expression “fit and proper” and its equivalent “suitable” with reference to persons and the fact it takes its meaning from its context, from the activities in which the person is or will be engaged and the ends served by those activities is emphasised by the decisions of the High Court in Australian Broadcasting Tribunal v Bond [81] and Hughes and Vale Pty Ltd v New South Wales (No. 2).[82]  In Bond their Honours said that:[83]

“the question whether a person is fit and proper is one of value judgment.  In that process the seriousness or otherwise of particular conduct is a matter of evaluation by the decision maker.  So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

  1. [142]
    I address the issue of whether I am satisfied that Mr Fuller is not a suitable person to hold a real estate agent’s licence in accordance with these principles considering his character, the nature of the industry involved, the public policy objectives of the legislation, the seriousness of the conduct involved, whether he can be safely accredited to the public as a person to trust, and any factors in his favour.
  1. [143]
    Mr Danen’s submission concerning this issue is that it was appropriate for the Tribunal to have regard to the details of Mr Fuller’s conduct including his offending behaviour as well as his conduct during the hearings before the Magistrates Court and Tribunal.  It is submitted that all these matters support the ultimate conclusion that Mr Fuller is an unsuitable person to hold a licence.
  1. [144]
    As set out in paragraph [37] above, Mr Evans’ submissions were directed to the proposition that because the conviction should not have been relied upon and the conduct which led to it should either have been excluded from the proceedings or should not have been accepted by the Tribunal, those proceedings should have been dismissed unless there was other conduct by Mr Fuller that challenged his character or suitability.  As a result, he did not address specific arguments to the relevant suitability factors set out in s 28(1).
  1. [145]
    As stated at paragraph [53] above, I rejected Mr Evans’ submissions and have proceeded to have regard to the facts and circumstances surrounding the offending to which the conviction relates in order to determine this issue.
  1. [146]
    In relation to Mr Danen’s submissions, for the reasons I have given I do not consider Mr Fuller’s conduct before the Tribunal to the extent that it involves explanations made in an attempt to discharge an onus that was wrongly cast upon him.  With reference to his conduct before the Magistrates Court, consistently with the approach I have taken to rehearing this disciplinary proceeding, I have regard to only that appearing from the transcript of Day 1 of the proceedings before that court.
  1. [147]
    I have found that Mr Fuller has stolen the vending machine.  This involves serious dishonesty.  It is conduct which required some premeditation.  His deliberation is demonstrated by his evidence that, before he opened two display homes at 10 o’clock on 12 November 2006, he travelled to the shopping centre, walked in, picked it up and rolled it out the door.  This dishonest conduct, without speculating on his motive, was directed at a member of the public who was a competitor in the vending machine industry both generally and in relation to the shopping centre.
  1. [148]
    Further, in accordance with my findings, he lied about this to the police on 13 January 2007 when he denied being at the shopping centre on 12 November 2006, and again on 18 January 2007 when he contacted the police to attend the station to view the CCTV footage, but said that he had removed his own machine.  It also follows from my findings that he maintained this untruthfulness at the hearing before the Tribunal as recently as 7 August 2008, as demonstrated by reference to his evidence set out at paragraph [105] above.  As such, he did not admit to the disciplinary charges against him and his dishonesty cannot be said to be a spur of the moment aberration.
  1. [149]
    As such, his conduct reflects adversely on his moral integrity and rectitude of character.
  1. [150]
    Although this behaviour involves conduct which is not related to the real estate industry, and as such is not to be looked at in the same way as conduct related to the industry,[84] Mr Fuller has engaged in personal conduct which bears upon his professional conduct as a licensee.[85]  This is because the conduct relates to his fitness to discharge the responsibilities applicable to a real estate agent’s licence and the purpose of the PAMDA by ensuring that this sort of work is not carried out by persons who are dishonest with those who they deal with in the course of their profession.[86]  This is the case notwithstanding that Mr Fuller did not receive his licence until approximately five months after his theft of the vending machine, because he maintained this dishonesty before the Tribunal 21 months later.
  1. [151]
    The responsibilities and privileges given by the granting of such a licence include having a right to deal with the public and particular purchasers and sellers, exercise judgment and give advice to sellers, influence potential purchasers, deal with monies and property of others, and deal with other commercial enterprises.[87]  This is so even where, as in this case, Mr Fuller, at the time of the Tribunal hearing, was only selling homes for one builder.  In such circumstances, general good character is an inherent qualification for much of the work involved,[88] which requires probity and integrity.
  1. [152]
    As is confirmed by Filippini, the protection of the public is the paramount consideration in proceedings in the Tribunal in accordance with the purpose of the PAMDA.[89]
  1. [153]
    In these circumstances, notwithstanding Mr Fuller’s otherwise good character, the lack of any complaints against him to the Office of Fair Trading over a period of 20 years in the real estate industry, his voluntary disclosure of the charge and his unrecorded conviction, and his decision not to use the licence pending the resolution of the charge and the disciplinary proceedings, the seriousness of his misconduct which was maintained throughout the Tribunal hearings is such that he cannot be safely accredited to the public as a person to trust.
  1. [154]
    Accordingly, having regard to the suitability factors in s 28(1)(a) and (i) of the PAMDA, I find that he is not a suitable person to hold a licence.
  1. [155]
    I therefore confirm the Tribunal’s finding that Mr Fuller is not a suitable person to hold a licence and find him guilty of the disciplinary charge under s 496(1)(g)(i) of the PAMDA.

Appeal against penalty

  1. [156]
    Where, as in this case, the Tribunal decides that appropriate grounds exist for taking disciplinary action against a person under s 107(1) of the CCTA, it may make:

“(a) an order under the empowering Act; or

  1. (b)
    1 or more of the orders mentioned in subsections(2) to (4).”
  1. [157]
    Where, as in this case, the empowering Act is the PAMDA, the Tribunal under s 529(1) may make one or more of the following orders against a person it finds guilty of a disciplinary charge brought under the Act:

“(a) an order reprimanding the person;

  1. (b)
    an order that the person pay to the chief executive, within the time stated in the order, a fine of not more than 200 penalty units;
  1. (c)
    an order that the person’s licence or registration certificate be suspended for the period stated in the order;
  1. (d)
    an order:
  1. (i)
    if the person is the holder of a licence or registration certificate at the time the order is made—that the licence or registration certificate be cancelled; or
  1. (ii)
    whether or not the person is the holder of a licence or registration certificate at the time the order is made—that the person be disqualified permanently, or for the period stated in the order, from holding a licence or registration certificate;

(e) an order for a licensed individual who is an executive officer of a corporation, that the individual be disqualified permanently, or for the period stated in the order, from being an executive officer of a corporation that holds a licence.

  1. (f)
    an order imposing conditions on, or amending or revoking the conditions of, the person’s licence or registration certificate;
  1. (g)
    another order the tribunal considers appropriate to ensure the person complies with this Act.”[90] (my emphasis)

Section 529(2) also provides:

“The tribunal may not make an order under subsection (1)(d)(ii) disqualifying the person from holding a licence or registration certificate if the tribunal is satisfied that a court has, in relation to the matter giving rise to the disciplinary charge—

(a) been asked to make an order under section 592(2) disqualifying the person from holding a licence or registration certificate; and

(b) declined to do so.” (my emphasis)

  1. [158]
    As indicated, in this case the Tribunal acted under s 529(1)(d)(ii) by disqualifying Mr Fuller for seven years from holding any licence or registration certificate under the PAMDA and from being an executive officer of a corporation that holds a licence under the Act,[91] and Mr Fuller has contended that this penalty was manifestly excessive.
  1. [159]
    As I have already found, it cannot be excluded that the Trubnal Member wrongly used the statutory consequences under s 26(1)(b) of a minimum period of five years for which Mr Fuller could not hold a licence as a starting point for determining the penalty, and therefore the penalty exceeded this level; and such an approach involved an error of law in circumstances where that provision did not apply because no conviction had been recorded against Mr Fuller.[92]
  1. [160]
    In these circumstances, I proceed to consider the exercise of the sentencing discretion afresh. Again, by virtue of s 106(6) of CCTA I may confirm, annul, vary or reverse the Tribunal’s decision; or remit the case to the Tribunal for further hearing or rehearing; or make consequential or ancillary orders or directions.

Applicant’s submissions

  1. [161]
    Mr Evans draws attention to the fact that, as recognised by the Tribunal Member in his decision, Mr Danen in his written submissions to the Tribunal sought a disqualification of two years.  With reference to this and the comparative cases, Mr Danen relied on before the Tribunal and before me, he submits that this period of disqualification was at the higher end of the scale.
  1. [162]
    He argues that the comparatives relied on are distinguishable, but that of the cases it is Hollow[93] which should guide me.  He submits that this case suggests that the appropriate range for a like case would be between no suspension and one year.
  1. [163]
    He refers to the fact that there has been no stay in Mr Fuller’s suspension so that he has been suspended since 26 August 2008.  This is a period of almost 16 months to the date of this decision.  He also makes the point that he had not used the licence pending the resolution of the charge before the Magistrates Court.  This is a period of about 7½ months between being licensed on 4 May 2007 and that court’s decision on 18 December 2007.  Mr Fuller also gave evidence to the Tribunal that he had decided not to use the licence pending the resolution of the disciplinary proceedings.  As these proceedings were filed on 11 June 2008, this is likely to have been for a period of 2½ months.
  1. [164]
    Mr Evans also drew to my attention that if Mr Fuller’s name is googled, the first thing that appears is the Tribunal decision with reference to his being convicted in the Magistrates Court.[94]
  1. [165]
    In conclusion, he submits that in all the circumstances, the Tribunal’s order should be set aside and there be no suspension.

Respondent’s submissions

  1. [166]
    On behalf of the respondent, Mr Danen seeks to maintain the penalty, submitting that it is within the range, albeit at the higher end of the range.
  1. [167]
    In making this submission, Mr Danen relies not only on the facts and circumstances surrounding Mr Fuller’s offending, which includes his lies to the police and before the Tribunal, but also his conduct at the Tribunal hearing.
  1. [168]
    In addition to Hollow, he has referred me to the cases of Matheson,[95] Hadroj[96] and Song[97] as comparatives.  However, he concedes that Matheson is more serious conduct and outside the appropriate range for this case.
  1. [169]
    In reliance on Hadroj and Song, he submits that the bottom end of the range should be two years suspension.  He accepted that as the disqualification had been in force since the date of the Tribunals’ order, an appropriate adjustment could be made to the disqualification period from the date of my order.

Discussion

  1. [170]
    Again for the reasons I have given, I do not consider Mr Fuller’s conduct before the Tribunal to the extent that it involves explanations made in an attempt to discharge an onus that was wrongly cast upon him.  Although, as in the case of my decision as to whether he is a suitable person to hold a licence, I consider his untruthfulness to the Tribunal on 7 August 2008 is relevant to the issue of penalty because it is integral to his dishonest conduct and demonstrates a lack of remorse.
  1. [171]
    Because it is conceded that Matheson was a more serious case involving disqualification for a period of 10 years, which is outside the appropriate range for the current case, I do not further consider it.
  1. [172]
    The cases of Hadroj and Song are also distinguishable because they were decided in the context of a New South Wales licence regime, which is different to the PAMDA.  In each case, application was made for a registration or a licence in circumstances where the applicant was automatically ineligible as a result of being convicted of an offence of dishonesty in the previous 10 years.  This was subject to a qualification which allowed the conviction to be ignored, inter alia, because of the time that had passed since the offence was committed.  Therefore, these cases are decisions on this issue and not as to the length of disqualification or other penalty that would be appropriate in the circumstances.
  1. [173]
    In Hadroj the offences had occurred only just over 12 months before the decision.  It was held that insufficient time had passed to ignore a conviction for three offences of goods in custody which may be reasonably suspected of being stolen or otherwise unlawfully obtained.[98]  This case can be authority for no more than the proposition that in the circumstances of that case, just over 12 months was insufficient time to ignore the conviction.  It does not decide what would have been sufficient time.  Although unlike this case the offending conduct occurred in relation to the industry in which the registration was sought, despite Mr Danen’s written outline of submission, it is not made expressly clear in that decision whether the applicant pleaded guilty and co-operated with the authorities or was otherwise of good character.
  1. [174]
    Although distinguishable for the same reason, Song[99] is of more guidance because the passage of a period just short of two years since conviction was not considered sufficient to allow it to be ignored in the circumstances of that case.
  1. [175]
    In that case the applicant, who was seeking registration as a salesperson, was convicted of having goods in personal custody suspected of being stolen. This was based on possession of a fraudulent credit card which may have been attempted to be used by another person to purchase electrical goods. In addition, he lied about his knowledge of this other person. Although Mr Evans submitted that this case was of a more serious character, unlike Mr Fuller, that applicant admitted his guilt and demonstrated some remorse.
  1. [176]
    In Hollow, which Mr Evans submits is the case which should guide me, the respondent, who had been the holder of a motor dealer licence for almost 12½ years, was convicted of the summary offence of knowingly stating to an officer information that she knew was misleading in a material particular, namely that a named person existed and performed motor vehicle work.
  1. [177]
    The Tribunal ordered the suspension of the respondent’s licence for one year, but ordered that this be deferred for that period on the condition that she did not commit a further offence against the PAMDA or the code of conduct. She was also fined $1,400.
  1. [178]
    Mr Evans argues that a distinction from this case which mitigates in favour of the applicant, is that the offence was committed in an attempt to frustrate an important process (the issue of safety certificates) in the industry for which the relevant licence was required.
  1. [179]
    However, unlike this case, the Tribunal did not find the circumstances of that case such as to cause it to find the respondent was not a suitable or fit and proper person to hold a licence.
  1. [180]
    In addition, there are a number of circumstances which make Mr Fuller’s conduct more serious than that of that respondent.  This is as follows:
  1. (a)
    Ms Hollow was involved in one incident of giving false information and, except for this occasion, was generally honest.  Whereas Mr Fuller not only committed the offence of dishonesty but maintained a lie which he initially told to the investigating police about it until and including his evidence to the Tribunal on 7 August 2008.  It could not be said that his dishonesty was a spur of the moment aberration;
  1. (b)
    Ms Hollow recanted her false information when confronted by police and admitted the disciplinary charge before the Tribunal, whereas, as set out in (a), Mr Fuller did not admit the charge but maintained his dishonesty about the conduct on which it was based before the Tribunal;
  1. (c)
    As such, whereas it was accepted that Ms Hollow was extremely remorseful, Mr Fuller has demonstrated no remorse;[100] and
  1. (d)
    It was accepted that veiled threats were made against Ms Hollow, whereas there was no suggestion of this in the case of Mr Fuller.
  1. [181]
    For completeness, two circumstances in common are that prior to engaging in this conduct, neither person had a criminal conviction and had not previously been subject to a disciplinary complaint in relation to the industry in which they were licensed.
  1. [182]
    This analysis of the distinctions between the conduct of Mr Fuller and that of Ms Hollow serves to reinforce the seriousness of his conduct, which has been identified in determining that he is not a suitable person to hold a licence.
  1. [183]
    As I have said, this theft of a competitor’s equipment required some premeditation, and it was accompanied by lies about his conduct that he maintained before the Tribunal such that it cannot be said to be a spur of the moment aberration. This second matter distinguishes his conduct from the other cases that have been referred to me where the persons have admitted their dishonest conduct before the relevant disciplinary tribunal. Although the fact that he did not admit his conduct before the Tribunal cannot aggravate his penalty, he is not entitled to the discount to which he would otherwise have been entitled for this. In addition, the fact of his dishonesty before the Tribunal aggravates his conduct and demonstrates an absence of remorse.
  1. [184]
    Further, by his dishonesty before the Tribunal on 7 August 2008, he has maintained his dishonesty for 21 months; and this relates to his fitness to discharge the responsibilities applicable to a real estate agent’s licence and the purpose of the PAMDA by ensuring that this sort of work is not carried out by persons who are dishonest with those who they deal with in the course of the profession.
  1. [185]
    Again, it is the protection of the public that is the paramount consideration.[101]
  1. [186]
    In determining the appropriate penalty, I have regard to Mr Fuller’s personal circumstances as set out in Annexure A of his response and summarised at paragraph [101] above, and in particular that he had been involved in the real estate market for 20 years without being the subject of any complaints to the Office of Fair Trading over this period, in which he sold over 500 homes.  As indicated, he also had no prior criminal convictions.
  1. [187]
    It is also to his credit that he voluntarily disclosed the charge and his unrecorded conviction; and also his decision not to use the licence pending the resolution of the charge, a total period of approximately 10 months.
  1. [188]
    Further, I take into account that part of his response is a document titled “Determination Sought”, which was directed to the Chairperson of the Tribunal, stating that if the need was felt to find him guilty under the PAMDA:

“1. That it is a Reprimand and not a disqualification of my licence.  This is an important part of running of my marketing company and would most definitely put me under financial pressure if disqualified.

  1. I am totally aware why people cannot hold a licence if they are deemed to be untrustworthy due to having access to people’s homes and obviously the credibility factor within the Office of Fair Trading.  I can only claim my innocence of the charge.

 I wish to point out that at no time do I wish to minimise the seriousness of what has transpired.  I am very much aware of that, but I simply cannot admit guilt.”

I note that, despite the respectful language adopted by Mr Fuller, this does not change my view that he maintained his dishonesty before the tribunal and as such demonstrated no remorse.

  1. [189]
    In paragraph 2, Mr Fuller recognises why untrustworthiness is a circumstance which is inconsistent with a person holding a licence.
  1. [190]
    Because of the serious circumstances here, notwithstanding I recognise the factors in mitigation of Mr Fuller’s conduct, I take the view that the disqualification of his real estate agent’s licence is warranted by the need to protect the public.
  1. [191]
    In determining the length of this disqualification, I have regard to the authorities to which I have been referred and the principle that generally speaking if a submission as to sentence is not made to the sentencing tribunal the prosecution should not be able to advance that contention on appeal.[102]
  1. [192]
    In this case, as indicated, Mr Danen had sought a disqualification of two years from the Tribunal. Although I accept this submission was made without regard to Mr Fuller’s subsequent dishonesty before the Tribunal, I consider that, balancing this with the 10 months that he voluntarily did not use the licence, this is the appropriate period of disqualification in this case.
  1. [193]
    For the reasons given, I consider that Mr Fuller’s conduct was more serious than that in Hollow and, to the extent that Song provides guidance, a period of two years disqualification is consistent with the approach taken in that decision to a case in which, unlike Mr Fuller, the applicant admitted guilt and demonstrated some remorse.
  1. [194]
    As Mr Fuller has been disqualified from holding a licence since 26 August 2008, the period of disqualification should expire on 25 August 2010.  This is a period of approximately 8¼ months from the date of this judgment.  This will extend past the date on which Mr Fuller’s current licence expires.
  1. [195]
    Accordingly, the Tribunal’s order is varied by substituting a disqualification period of two years from 26 August 2008, during which Mr Fuller is not to hold any licence or certificate under the PAMDA, and from being an executive officer of a corporation that holds a licence under the said Act.
  1. [196]
    As I have confirmed, for different reasons, that Mr Fuller is not a suitable person to hold a licence and I have concluded that he should be disqualified for the period initially submitted by the respondent before the Tribunal, I consider that the costs order in favour of the respondent should stand.

Conclusion and orders

  1. [197]
    1. Application for leave to appeal allowed.
  1. Finding made by Commercial and Consumer Tribunal that the applicant is not a suitable person to hold a licence confirmed.
  2. Order made by the Commercial and Consumer Tribunal in relation to penalty varied by substituting a disqualification period of two years from 26 August 2008 during which the applicant is not to hold any licence or certificate under the Property Agents and Motor Dealers Act 2000, and from being an executive officer of a corporation that holds a licence under the said Act.
  1. [198]
    By virtue of s 100(8) of the CCTA, the applicant must pay the costs of the appeal, including the costs of any transcript.  Having regard to the interpretation of this provision in Tamawood Ltd & Anor v Paan,[103] I will hear any arguments that the parties wish to address on the issue of costs of the appeal.

Footnotes

[1]Filippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 96 at [1].

[2]See also, Commercial and Consumer Tribunal Act 2003 (Qld) (CCTA), s 107.

[3]This was pursuant to s 529(1)(d)(ii) and (e) of the PAMDA.

[4]Despite the terms of the Amended Notice of Appeal which was filed by order of Robin DCJ the Further Outline of Argument for Mr Fuller, adds two further grounds, one of which is also related to ground (2) and the other concerning the basis of which findings of credibility were made against him.

[5][2008] QCA at [7].

[6]This is one of the two further grounds which were added to those specified in the Amended Notice of Appeal which are referred to in footnote 4.

[7]Transcript of Tribunal Hearing, T 46 l 636 to T 47 l 656; T 59 l 850 to T 60 l 862.

[8]In his submission to the Tribunal (Exhibit 4) he completely denied Particular 2 which is set out in paragraph [9] above.

[9]T 3 ll 34-36.

[10]T 30 l 430.  The relevance is that whereas it is alleged that he stole Mr Kew’s five head machine, Mr Fuller maintained that he had removed his own four head machine.  He further said that the CCTV footage relied on by the prosecution did not clearly show a five head machine.  The magistrate identified the issue for determination as the identity of the machine in question, there being no dispute that the defendant took it.  After closely examining the CCTV footage he concluded that it was a five head machine that was the property of Mr Kew.  As Mr Fuller said at T 45 l 620, this was the argumentative point of the whole case.

[11]T 22 ll 333-335.

[12]T 45 l 623 to T 46 l 631.  The Tribunal Member is TM and Mr Fuller is MF.

[13]T 49 ll 682-685.

[14]T 49 l 688 to T 50 l 703.

[15]T 50 l 726.

[16]The punishment for stealing under s 398 is imprisonment for 5 years.  The magistrate had jurisdiction to impose 3 years imprisonment.

[17]Justice and Other Legislation Amendment Act 2008 No. 59.

[18](1936) 55 CLR 499 at 504.

[19]This impliedly accepts that he was found guilty by the magistrate.

[20]Reference was also made in oral argument to s 10(3)(a)(i) and s 32 of the PAMDA.  Section 10(3)(a)(i) provides that the Act’s objects are to be achieved mainly by ensuring only suitable persons with appropriate qualifications are licensed or registered.  Section 32 authorises the Chief Executive to make investigations to help the Chief Executive to decide whether a licensee is a suitable person to hold a licence.  It was submitted that these provisions together with the others identified allow the Tribunal to go behind the non‑recording of a conviction and look at a licensee’s conduct.

[21][2007] FCA 1039 at [6] and [7].

[22]As noted in paragraph [47] above, under the Rehabilitation Act, “criminal history” is defined as the convictions recorded against a person in respect of offences.

[23]This is with the exception of s 28(1)(g)(i).

[24]This is the approach taken by the Tribunal in Liukaina v The Chief Executive Department of Tourism, Fair Trading and Wine Industry Development [2007] QCCT PAMD 50 at [49].  I agree with it.

[25]Ibid at [48].  It is convenient to adopt the summary of s 10 in that case.

[26]It is to be noted that I accept the view of the experienced Tribunal Member as expressed at [16] of the decision the subject of this appeal that the curial rules of evidence may afford useful guidance although they are not binding here.

[27]I note that in the Chief Executive’s submissions to the Tribunal which form part of the court file, it was accepted that the Chief Executive bears the onus of proof as to Mr Fuller’s guilt of the disciplinary charge on the balance of probabilities.

[28]His evidence before the Magistrate was not tendered during the Tribunal proceedings.

[29]Mr Fuller’s barrister.

[30]The Prosecutor.

[31]T 57 l 816 to T 58 l 830.

[32]Although it would be wrong to speculate on the reason for this, a possible explanation is that in the absence of an appeal against the magistrate’s decision of 18 December 2007 the exhibit was returned to its rightful owner by the time of the Tribunal hearing of 7 August 2008, and was no longer in existence.

[33]Although under cross‑examination he said that as far as he could remember, “there were three 60s and a model 80”, he was “not 100 per cent”.

[34]This is a reference to Mr Kew.

[35]During his evidence before the Tribunal, Mr Fuller agreed that this response was true and correct, and did not want to change or amend it (T 18 ll 257-260).

[36]As far as possible I limit the relevant material to statements of fact as opposed to those parts of the document which are submissions or otherwise argumentative.

[37]This particular aspect is expressed in the Chief Executive’s submission as, “The Respondent offered the excuse that the equipment was actually his property despite informing the police at the previous interview that he had only two tall yellow vending machines in that shopping complex.”

[38]When cross‑examined about this proposition at T 34 l 472 to T 35 l 492 he said that he did not particularly agree with the use of the word “excuse”.  He was saying that he did not do this at all.

[39]T 16 ll 228-231.

[40]T 18 l 263.

[41]T 20 l 293.

[42]T 21 ll 306-307.

[43]Ibid l 309.

[44]T 21 l 313.

[45]T 31 l 437.

[46]T 23 ll 340-343.

[47]Ibid ll 344-345.

[48]T 31 l 441.

[49]T 22 ll 323-325.

[50]T 44 l 518.

[51]T 28 l 403; T 29 ll 411-419.

[52]T 30 l 429.

[53]T 38 l 516.

[54]For the reasons I have given I do not have regard to the cross‑examination and his evidence that the CCTV footage was in black and white, when it was in fact in colour.

[55]T 32 l 445; see also T 38 l 552, where he said that in the police brief, Ms McKeown said that he did not have a third piece of equipment there, and then claimed that there was a third machine there which was red in colour with four heads.

[56]T 24 l 346.

[57]T 24 ll 349 to 351.

[58]T 26 ll 366 and 373.

[59]T 22 l 317.

[60]T 45 l 622.

[61]T 42 l 575.

[62]T 44 l 609; T 63 ll 877-879.

[63]There is also the fact that Mr Kew did not mention until he was cross‑examined that Mr Fuller had a red four head vending machine at the shopping centre.  He also rationalised that it must have been Mr Kew’s machine which was removed from the storeroom.

[64]It was Mr Fuller’s evidence that he did this on 12 November 2006.

[65]Briginshaw v Briginshaw (1938) 60 CLR 336; Rejfek v McElroy (1965) 112 CLR 4517 at 521.

[66]I would also have been satisfied of this beyond reasonable doubt if this had been the applicable standard of proof.

[67]I would also have been satisfied beyond reasonable doubt that he told a deliberate untruth when he denied being at the shopping centre on the date of the alleged offence, and of these associated matters, if this had been the applicable standard of proof.

[68][2008] QCA 96 at [18].

[69][2007] QCCT PAMD 50.

[70][2005] QCA 151.

[71][2007] QCCT PAMD 50 at [41].

[72]Ibid at [42].

[73]Ibid at [43].

[74]Ibid at [49].

[75]Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 (Sobey’s Case) where Walters J said with reference to “fit and proper”:

“In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … 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 … as a person to be entrusted with the sort of work which the licence entails.”

[76]Trlin v Department of Fair Trading (1999) NSWADT 72.

[77]Ibid; Raymond Robbins v Business Licensing Authority (2000) VCAT 457.

[78]Sobey’s Case.

[79][2004] QCCT PAMD 68.

[80]Ibid at [158].

[81](1990) 170 CLR 321 at 380.

[82](1955) 93 CLR 127 at 156-157.

[83](1990) 170 CLR 321 at 388.

[84]New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420 at 429.

[85]Ibid.

[86]Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 390.

[87]The Chief Executive, Department of Tourism, Racing and Fair Trading v Gunther v Ors [2004] QCCT PAMD 68 at [179]

[88]Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 309-391.

[89][2008] QCA 96 at [27].

[90]Similar action to s 529(1) may be taken under s 107(2)(a) and (4) of the CCTA, although in subsection (4)(d) the reference is to cancelling rather than disqualification of a licence.

[91]Section 592(2) does not apply in this case.

[92]See paragraph [33] above.

[93]The Chief Executive, Department of Fair Trading and Wine Industry Development v Hollow [2004] QCCT PAMD 59.

[94]I have confirmed that this remains the case.

[95]The Chief Executive, Department of Fair Trading and Wine Industry Development v Matheson [2006] QCCT PAMD 29.

[96]Hadroj v Director-General, Department of Fair Trading [2002] NSWADT 95.

[97]Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218.

[98][2002] NSWADT 95 at [22].  I note that although Mr Hadroj had also been convicted of selling second hand goods without a licence, the Tribunal was only able to consider the goods in custody offences.

[99][2006] NSWADT 218 at [17].  In this case, the offence was committed on 10 August 2004; the conviction was on 26 August 2004; and decision was delivered on 1 August 2006.

[100]This is demonstrated by the fact that in the course of his evidence before the Tribunal he said, in responding to a question about whether he was remorseful, at T 36 l 498:  “… I don’t regret taking the, I don’t regret that I’ve taken the stance that I took because it was the right stance to take.  I didn’t take his equipment.”

[101]Filippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 96 at [27].

[102]R v Gordon; ex parte Cth DPP [2009] QCA 209 at [40] with reference to The Queen v Wilton (1981) 28 SASR 362 at 368; Everett v The Queen (1994) 181 CLR 295 at 302; GAS v The Queen (2004) 217 CLR 198 at 213 [40].

[103][2005] QCA 111 at [41].

Close

Editorial Notes

  • Published Case Name:

    Fuller v Chief Executive, Office of Fair Trading

  • Shortened Case Name:

    Fuller v Chief Executive, Office of Fair Trading

  • MNC:

    [2009] QDC 403

  • Court:

    QDC

  • Judge(s):

    Irwin DCJ

  • Date:

    18 Dec 2009

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
3 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Cite 3 - (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Everett v The Queen (1994) 181 CLR 295
2 citations
Jump To
Cite 1 - (1994) 181 CLR 295
Cite 2 - (1994) 181 CLR 295
Fair Trading and Wine Industry Development v Hollow [2004] QCCT PAMD 59
2 citations
Jump To
Cite 1 - [2004] QCCT PAMD 59
Cite 2 - [2004] QCCT PAMD 59
Filippini v Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development[2009] 1 Qd R 230; [2008] QCA 96
6 citations
Jump To
Cite 1 - [2008] QCA 96
Cite 2 - [2008] QCA 96
Cite 3 - [2008] QCA 96
Cite 4 - [2008] QCA 96
Cite 5 - [2008] QCA 96
Cite 6 - [2008] QCA 96
GAS v The Queen (2004) 217 CLR 198
2 citations
Jump To
Cite 1 - (2004) 217 CLR 198
Cite 2 - (2004) 217 CLR 198
Hadroj v Director-General, [2002] NSWADT 95
3 citations
Jump To
Cite 1 - [2002] NSWADT 95
Cite 2 - [2002] NSWADT 95
Cite 3 - [2002] NSWADT 95
Hartwig v P.E. Heck [2007] FCA 1039
2 citations
Jump To
Cite 1 - [2007] FCA 1039
Cite 2 - [2007] FCA 1039
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hughes & Vale Pty. Ltd. v New South Wales (No. 2) (1955) 93 CLR 127
1 citation
Jump To
Cite 1 - (1955) 93 CLR 127
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 121
1 citation
Jump To
Cite 1 - (1955) 93 CLR 121
Liukaina v The Chief Executive Department of Tourism [2007] QCCT PAMD 50
7 citations
Jump To
Cite 1 - [2007] QCCT PAMD 50
Cite 2 - [2007] QCCT PAMD 50
Cite 3 - [2007] QCCT PAMD 50
Cite 4 - [2007] QCCT PAMD 50
Cite 5 - [2007] QCCT PAMD 50
Cite 6 - [2007] QCCT PAMD 50
Cite 7 - [2007] QCCT PAMD 50
Monte Carlo Caravan Park Pty Ltd v Curyer[2007] 2 Qd R 57; [2006] QCA 363
2 citations
Jump To
Cite 1 - [2007] 2 Qd R 57
Cite 2 - [2007] 2 Qd R 57
New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420
2 citations
Jump To
Cite 1 - (1987) 73 ALR 420
Cite 2 - (1987) 73 ALR 420
Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387
3 citations
Jump To
Cite 1 - (1994) 62 SASR 387
Cite 2 - (1994) 62 SASR 387
Cite 3 - (1994) 62 SASR 387
R v Gallagher; ex parte Attorney-General [1999] 1 Qd R 200
1 citation
Jump To
Cite 1 - [1999] 1 Qd R 200
R v Gordon; ex parte Director of Public Prosecutions (Cth)[2011] 1 Qd R 429; [2009] QCA 209
2 citations
Jump To
Cite 1 - [2009] QCA 209
Cite 2 - [2009] QCA 209
R v Wilton (1981) 28 SASR 362
2 citations
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Cite 1 - (1981) 28 SASR 362
Cite 2 - (1981) 28 SASR 362
Raymond Robbins v Business Licensing Authority (2002) VCAT 457
1 citation
Jump To
Cite 1 - (2002) VCAT 457
Raymond Robbins v Business Licensing Authority (2000) VCAT 457
2 citations
Jump To
Cite 1 - (2000) VCAT 457
Cite 2 - (2000) VCAT 457
Re Bell [2005] QCA 151
2 citations
Jump To
Cite 1 - [2005] QCA 151
Cite 2 - [2005] QCA 151
Rejfek v McElroy (1965) 112 CLR 517
1 citation
Jump To
Cite 1 - (1965) 112 CLR 517
Rejfek v McElroy (1965) 112 CLR 417
1 citation
Jump To
Cite 1 - (1965) 112 CLR 417
Sobey v Commercial and Private Agents Board (1979) 20 SASR 70
2 citations
Jump To
Cite 1 - (1979) 20 SASR 70
Cite 2 - (1979) 20 SASR 70
Song v Commissioner for Fair Trading [2006] NSWADT 218
3 citations
Jump To
Cite 1 - [2006] NSWADT 218
Cite 2 - [2006] NSWADT 218
Cite 3 - [2006] NSWADT 218
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
The Chief Executive, Department of Fair Trading and Wine Industry Development v Matheson [2006] QCCT PAMD 29
2 citations
Jump To
Cite 1 - [2006] QCCT PAMD 29
Cite 2 - [2006] QCCT PAMD 29
The Chief Executive, Department of Tourism, Racing and Fair Trading v Gunther & Ors (2004) QCCTPAMD 68
4 citations
Jump To
Cite 1 - (2004) QCCTPAMD 68
Cite 2 - (2004) QCCTPAMD 68
Cite 3 - (2004) QCCTPAMD 68
Cite 4 - (2004) QCCTPAMD 68
Trlin v Department of Fair Trading (1999) NSWADT 72
3 citations
Jump To
Cite 1 - (1999) NSWADT 72
Cite 2 - (1999) NSWADT 72
Cite 3 - (1999) NSWADT 72

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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