18 These grounds do not expose the central issue that was argued on the appeal. This was whether all the charges (including the third but, it seems, excluding the seventh) should have been thrown out. The basis of the submissions put in this regard was not that the substantive charges were defective. It was that one of the particulars made an allegation that could not be sustained. The impugned particular was particular (q), which had been put forward as a particular of the first charge. It was then adopted and repeated - despite its irrelevance to the third and seventh charges - under each of the other eight. It alleged that, "[a]t the time the contract of sale was entered into by the purchaser, and at all times subsequent to the signing of the contract by the purchaser until settlement of the sale, the purchaser, Richard Hampton, co-habited with the agent's representative [Mr Lukauskas] at 2/18 Patterson Street, Middle Park."
19 According to Mr Lukauskas, this particular could not be sustained because, at the time Mr Hampton signed the contract, he and Mr Lukauskas co-habited only in the sense that they were flat-mates. They did not co-habit in the more generally understood meaning of that term - that is, as domestic partners. Some sexual activity had previously taken place between them; but it was not until after Mrs Raw's transaction had been settled that co-habitation in its true sense began. Given that, according to Mr Lukauskas in evidence accepted by the Tribunal, he and Mr Hampton were not co-habiting at the material time, and given that each charge included a particular alleging - to the contrary - that they were, all the charges were bad. The Tribunal should therefore have dismissed them all.
20 This account of the facts, and so much of the submission as concerned the definition of the word "co-habit", may be accepted. In my opinion, the point is nevertheless without substance. I begin with the uncontested fact that, while Mr Lukauskas was acting for Mrs Raw, he and Mr Hampton shared a flat and a close friendship. That circumstance was in itself enough to demonstrate an actual conflict of interest. By continuing to act without informing his clients of that interest, Mr Lukauskas was guilty of each of the relevant charges. The failure of the prosecution to establish one particular of those charges, in the fullest sense which could be given to that particular, makes no difference to their validity; and that is true even if it be accepted that "the fullest sense" of particular (q) accords with and embraces the generally understood sense of the expression "to co-habit" - that is, to live in a domestic (generally sexual) relationship. In this context it is to be noted that, in s. 4 of the Act, the expression "domestic partner" when used to describe a person means (so far as is presently relevant) an adult person to whom a person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders, and whether or not they are living under the same roof.
21 Reference was made, in the course of submissions, to s.55 of the Act. It provides, so far as is relevant, that neither an estate agent nor an employee of an estate agent shall, whether directly or indirectly, be in any way beneficially interested in the purchase of any real estate which he or she is commissioned to sell. For the purposes of the section, an estate agent or employee shall be deemed to be beneficially interested in the purchase of real estate if the purchase is made by or on behalf of the domestic partner of the estate agent or employee. Breach of this provision creates an offence for which, upon conviction, penalties may be imposed. By s.55(14), however, a person may make a purchase that would otherwise be prohibited if, before the contract of sale is signed, he or she applies to the Director for permission to make the purchase, and that permission is granted.
22 The submissions put on behalf of Mr Lukauskas were based upon the premise that, in truth, he had been charged with a breach of s.55. The premise is false. In opening the case before the Tribunal, counsel for the Director explicitly stated that the application did not rely on s.55. Nor could it, since none of the charges - as opposed to particular (q) - referred to that section, or alleged that at the relevant time Messrs Lukauskas and Hampton were living as domestic partners. Even particular (q) referred not to s.55 but to co-habitation. Likewise, in her written reasons for decision, the presiding Senior Member acknowledged that no allegation of a contravention of s.55 was made.
23 It was also argued for Mr Lukauskas that, if acting as the vendor's agent while being beneficially interested in the purchase of real estate is expressly forbidden by the Act, whereas being in some other kind of unresolved conflict of interest is not so forbidden, then it necessarily follows that he might properly remain in such other unresolved conflict. This argument, put in a somewhat different form, was taken into account by the Senior Member when she came to decide upon the penalty to be imposed upon Mr Lukauskas. In my opinion it lacks all merit.
24 The purchase price paid by Mr Hampton was, according to the Director, less than the market value of the unit. The difference was said to be between $25,000 and $35,000. This conclusion was supported by evidence called from two valuers, one of whom valued the property at $195,000; the other, at $185,000. Both, therefore, "expressed the view that the sale of the property at $160,000 was well below the market price."[3]
25 The Tribunal's acceptance of this evidence was attacked on appeal on the basis that it failed to take relevant considerations into account. In its judgment, however, the Tribunal refers to the issues raised by counsel with each valuer during the course of the evidence of each, and concludes that each nevertheless "maintained after all these issues were raised that [the] sale of the property at $160,000 was below the market value of the property."[4] Perusal of the transcript does not assist in assessing this conclusion, because it is so replete with the expression "(indistinct)" in relation to questions put by counsel for Mr Lukauskas that it is impossible to make sense of the responses. Even were this not so, in my opinion these submissions do not demonstrate any error of law on the part of the Tribunal.
26 An attack was also made, during the hearing of the appeal, on the Tribunal's finding "that Mr Lukauskas told [Ms Hamerston] the offer of $160,000 came from a 'naïve young couple'."[5] I have already set out the relevant portion of Ms Hamerston's evidence. The Tribunal's acceptance of it is impugned on the basis that Mr Lukauskas gave evidence to the contrary and, as Ms Hamerston admits, told her in early January, before the contracts were signed, that the purchaser was a flight attendant. It is also put that she acknowledged that her memory was fallible, and that the test in Briginshaw v Briginshaw[6] had been misapplied. It is for the Tribunal to assess the evidence. It is of course bound by Briginshaw, but it was aware of its obligations in that regard, as is demonstrated by its reference to that authority.[7]
27 In my opinion, no good point of law is raised by these submissions.
28 I turn briefly to the seventh allegation. The relevant facts are that, on 22 January 2004, Mrs Gillian Hamerston first received, as attorney for her mother, copies of the contract of sale and of the statement required by s.32 of the Sale of Land Act. Mr Hampton had already signed them as purchaser. The breach of s.32(1A) of that Act seems clear, indeed irrefutable. Accordingly, Mr Lukauskas was rightly found to be in breach of the section. He was therefore also in this respect in breach of reg.10 which, it will be remembered, provides that an agent, while engaged in the practice of the profession, must not contravene or fail to comply with any statute, rule or regulation in force in Victoria to the extent that it is relevant to proper professional conduct. It follows that the Tribunal rightly found that the seventh allegation had been made good. (It will also be remembered that a breach of reg.10 separately occurred in that Mr Lukauskas engaged in conduct that was misleading and deceptive contrary to s.9 of the Fair Trading Act. This was the subject of the eighth allegation.)
29 Mr Lukauskas claims that the Director failed to accord him natural justice before applying for the holding of an inquiry pursuant to s.28 of the Act. This claim, however, cannot be upheld. First, it is made not as against the Tribunal, but as against the Director. It is therefore not a claim that falls within s.148 of the Victorian Civil and Administrative Tribunal Act: it is not an appeal on a question of law from an order of the Tribunal. The issue may be stated in a slightly different, but equally pertinent, way. The claim raises a point that was not made before the Tribunal. And by its nature, it cannot be raised for the first time - or at all - on appeal. It simply does not arise from anything the Tribunal did. In any event, the Director is not, in deciding whether or not to apply to the Tribunal for an inquiry pursuant to s. 28 of the Estate Agents Act, bound to accord natural justice to a person in Mr Lukauskas' position.
30 Mr Lukauskas is of course entitled to natural justice before any orders against him are pronounced; but, in considering claims of the kind now made by him, it is necessary to look at the decision-making process in its entirety.[8] This brings in the Tribunal. It must accord natural justice to him. It did. The Director, however, is in a different position. He is empowered by s.28 simply to apply to the Tribunal for the holding of an inquiry. His powers and functions are purely investigative, and are therefore to be distinguished from the powers and functions of the NSW Legal Services Commissioner that were examined by the Supreme Court of New South Wales in Murray v Legal Services Commissioner.[9] There, the relevant legislation required the Commissioner to reach a state of "satisfaction" before making decisions that themselves might directly affect the interests of the solicitor the subject of the Commissioner's attention. His powers were more than merely investigative. He was, accordingly, himself bound by the rules of natural justice. But his position in that respect is different from the purely investigative position of the Director when the Director is simply deciding whether or not to apply to the Tribunal for an inquiry under s.28.
31 The final matter for my consideration concerns the question of penalty. Sitting on appeal from the Tribunal, I can interfere with the penalty it imposed only if it applied a wrong principle, or acted on a misapprehension of the facts, or took into account irrelevant material, or failed to take account of relevant material.[10]
32 In my opinion, the Tribunal was correct in directing its attention to the protection of the public. It was, however, wrong in holding that, for sentencing purposes, it should proceed on the basis that eight of the nine alleged breaches of the Regulations had been proved. In one - important - sense, they had. But the Tribunal found only three acts of wrongdoing (or, to be strictly correct, two wrongful acts and one wrongful omission) and one relevant consequence. It was those three acts which gave rise to the eight breaches; and it was to those three acts and one relevant consequence that, in determining upon an appropriate penalty, the Tribunal ought to have directed its exclusive attention. It was, accordingly, wrong for the Tribunal to state that "seven of the eight breaches of regulations were serious and three of them involved dishonesty."[11] The possibility is thus opened that, in coming to the decisions it made on penalty, the Tribunal was too harsh. In these circumstances I must, to the extent necessary, allow the appeal and either remit the matter to the Tribunal or exercise for myself the discretion involved in fixing upon an appropriate penalty.
33 The three wrongful acts/omissions (correctly) identified by the Tribunal were: (i) the failure to disclose the relationship between Mr Lukauskas and Mr Hampton; (ii) the assertion that the purchasers were a naïve young couple; and (iii) the procuring of Mr Hampton's signature to the s.32 statement before it had been signed by the vendor. The relevant consequence was, as the Tribunal said at [5] of its Reasons for Determination of 25 October 2005, that the sale of the unit was at "well below market value".
34 Two of the three wrongful acts involved dishonesty. The message is plain; but it has nevertheless not been received with the necessary clarity. By his dishonesty, Mr Lukauskas gained an advantage for his friend and flat-mate, Mr Hampton, at the expense of the client to whom he owed the duties of a fiduciary, Mrs Raw. I agree with the Tribunal that such conduct in someone acting in the estate agents' profession is a matter of great seriousness. I also agree that the protection of the public from conduct of this kind can best be achieved by ensuring that Mr Lukauskas does not work as an estate agent for a significant period. Given the seriousness of the conduct in question, and given the difficulty that some have in appreciating the moral, ethical and professional implications of it, I was inclined, were I to re-fix the penalties for myself, to think that - far from being too harsh - suspension for two years was not long enough. In the end, however, when taking into account all the relevant factors, I could not find sufficient justification for any change. Save for my difference with the Tribunal on the starting point of the exercise, I otherwise agree with the reasons for its determination of 25 October 2005, and with the orders which it then made.