respondent. Tribunal found respondent guilty of contravening s 12 of the Estate Agents Act 1980 and guilty of failing to comply with the 25 June 2010 Tribunal Order (s 133(1) VCAT Act); found respondent...
Key principles
Holding oneself out to the public as ready to undertake the functions of an estate agent or agent's representative while permanently ineligible to do so contravenes s 12 of the...
Failure to comply with a Tribunal order (here, the 25 June 2010 order declaring the respondent permanently ineligible) constitutes an offence under s 133(1) of the VCAT Act and...
Where contempt is established, the Tribunal may punish by imprisonment or fine under s 137(5) of the VCAT Act; but imprisonment is an extreme power and, where there is no...
In determining penalty for contempt the Tribunal applies principles akin to sentencing for criminal conduct (so far as appropriate): considering the contemnor's personal...
Issues before the court
Did the respondent contravene s 12 of the Estate Agents Act 1980 by holding himself out as ready to perform the functions of an estate agent or...
Plain English Summary
VCAT found that John Talia breached the Estate Agents Act by acting and holding himself out as an estate agent despite a 2010 Tribunal order permanently prohibiting him, and that his conduct amounted to contempt of the Tribunal and an offence under the VCAT Act. The Tribunal, concluding the conduct was deliberate and undermined the regulatory scheme, fined him $10,000 and ordered costs against him, but declined to imprison him because there was no continuing contempt at the time of hearing.
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Deep Dive
1,961 words · generated 14/06/2026
What happened
Background and procedural posture
In 2010 the Tribunal (Senior Member Billings) conducted an inquiry into Mr John Talia's fitness to be an agent's representative and on 25 June 2010 declared him permanently ineligible to hold an estate agent's licence or to be an agent's representative (see Reasons, NATURE OF APPLICATION and BACKGROUND [NATURE OF APPLICATION 1–3; BACKGROUND 4]).
Was the respondent guilty of failing to comply with a Tribunal order (the 25 June 2010 order declaring permanent ineligibility) and thereby guilty...
What penalty for contempt was appropriate: imprisonment or fine?
Cited legislation
5 cited instruments linked from this judgment.
Consumer Affairs Victoria (CAV) later investigated alleged contraventions of that 2010 order and statutory prohibitions. CAV alleged that between 18 December 2014 and 12 March 2016 Mr Talia acted or held himself out as an estate agent or agent's representative, and that he failed to comply with the Tribunal's 2010 orders. The conduct relied upon included attendance and active participation at auctions and open inspections on 21 November 2015, 5 March 2016 and 12 March 2016, ongoing involvement with Bonds Real Estate (BRE) and signatory status on BRE bank accounts (CONTEMPT CHARGES and EVIDENCE sections).
CAV filed an application to the Tribunal seeking findings of contravention of s 12 of the Estate Agents Act 1980 (Vic), breaches of s 133(1) VCAT Act (non-compliance with Tribunal order) and contempt under s 137(1)(f) VCAT Act. Hearings were held on 20 December 2016 and 10 January 2017 before Judge Jenkins, Vice President.
Key factual findings by the Tribunal
CAV produced covert surveillance, photographs, audio recordings and bank records, and several CAV officers gave evidence about observations at the auctions and BRE premises. The Tribunal accepted the officers' accounts as consistent and credible (EVIDENCE; THE TRIBUNAL'S ANALYSIS OF THE MARCH 2016 AUCTIONS).
Specific findings included that on the surveillance dates Mr Talia: arrived in a black Porsche, wore the same tie as Stockdale & Leggo agents, carried brochures, gave business cards bearing his name and title, conversed with the auctioneer and attendees, stood beside the auctioneer during auctions, made notes on clipboards when bids were taken, rang the auction bell, accompanied the auctioneer into the house and approached bidders to assist negotiations (see paragraphs recounting the facts of 21 Nov 2015, 5 Mar 2016 and 12 Mar 2016).
Documentary evidence showed Mr Talia was a signatory on various BRE accounts (including the statutory trust account) and that transfers from BRE accounts to personal accounts of Mr Talia occurred (EVIDENCE; banking records).
Tribunal's outcome
The Tribunal found, beyond reasonable doubt, that Mr Talia had contravened s 12 of the Estate Agents Act by holding himself out as an estate agent/agent's representative, had failed to comply with the 2010 Tribunal order (s 133(1) VCAT Act), and was guilty of contempt under s 137(1)(f) VCAT Act. The Tribunal imposed a fine of $10,000 (s 137(5)(a)) and ordered costs to CAV on the standard basis (stayed until 20 February 2017 to permit the respondent to make submissions) (ORDERS and DETERMINATION).
Why the court decided this way
Framework of legal analysis
The Tribunal applied the statutory definitions and prohibitions in the Estate Agents Act 1980 (especially s 4 and s 12) to the respondent's conduct. Section 4 defines 'estate agent' and 'agent's representative' by reference to persons performing the functions of an estate agent; s 12(1) prohibits holding oneself out to the public as ready to perform the functions of an estate agent unless licensed.
For contempt, the Tribunal relied upon s 133(1) (offence to fail to comply with a Tribunal order) and s 137(1)(f) (contempt where an act would amount to contempt of the Supreme Court). The Tribunal applied Bradford v Dimopoulos' articulation of preconditions (existence of order; clarity; service; knowledge; breach; voluntariness) and required proof beyond reasonable doubt of each element (see THE TRIBUNAL'S CONTEMPT POWERS section).
Application to the facts
On the s 12 issue the Tribunal's task was to decide whether Mr Talia's actions constituted performance of any of the functions of an estate agent as statutorily defined. The Tribunal followed (and expressly endorsed) the approach that the inquiry is whether the conduct falls within the s 4 definition, rather than whether it matches some traditional or stereotyped view of estate agent activity (the Tribunal endorses Sifris J's approach from Noone v Mericka; see ANALYSIS OF RESPONDENT'S CONDUCT).
The surveillance evidence showed Mr Talia directly interacting with the public, supplying business cards with agent details, providing information and assistance in a way expected from licensed agents, standing next to the auctioneer and recording bids. The Tribunal concluded those behaviours satisfied the statutory test and hence constituted an unlawful holding-out and acting as an agent (contravention of s 12).
On contempt, the Tribunal emphasised the respondent's knowledge of the 2010 order (he was present and legally represented when it was made) and accepted the breach was voluntary and deliberate. The combination of active participation and continuing relationships with BRE (signatory on accounts, card use, payments) indicated active involvement and breach of the Tribunal order; the Tribunal therefore found the Bradford elements established beyond reasonable doubt.
Sentencing rationale
The Tribunal considered sentencing-like factors (citing Gashi and Varnavides): personal circumstances, nature and duration of contempt, consequences, effect on administration of justice, culpability, deterrence, reasons advanced by respondent, prior convictions, means and remorse (CIRCUMSTANCES OF THE CONTEMPT). The Tribunal concluded that although the conduct was deliberate and undermined regulatory integrity, there was no continuing contempt at hearing (accepting that the respondent had been terminated from BRE and was no longer associated), so immediate imprisonment (an extreme remedy) was not appropriate. Instead the Tribunal imposed a significant fine ($10,000) to provide specific and general deterrence and to reflect the seriousness of the breach.
Before and after state of the law
Before
The statutory architecture was already clear: s 4 and s 12 of the Estate Agents Act establish who counts as an agent and prohibit holding oneself out as an agent unless licensed. VCAT's powers to punish contempt and enforce orders derive from ss 133 and 137 of the VCAT Act. Case law such as Bradford, Noone v Mericka and Varnavides already provided guidance on proof and penalty.
After
The Tribunal reaffirmed two key points:
The correct legal focus is statutory: whether the person's activities fall within the s 4 definition of 'estate agent' or 'agent's representative', not whether activities align with some traditional notion of agent tasks (endorsing Noone v Mericka).
The Tribunal will use its contempt powers in serious, deliberate non-compliance with its orders, imposing penalties appropriate to deterrence and regulatory protection; imprisonment remains a last resort, generally for continuing contempts (drawing on Varnavides).
Practitioners should note that active public-facing participation in agency auctions and provision of agent-branded contact details is a high-risk fact pattern likely to trigger contraventions and contempt findings.
Key passages with plain-English translation
Finding of holding out (Judge Jenkins' factual conclusion)
Text (paraphrase): The respondent 'held himself out to the public' as an employee of the agency and to be ready to perform agent functions, answering questions, providing business cards and standing next to the auctioneer.
Plain English: Because he behaved and presented himself like an agent, giving information, wearing agent clothing, providing business cards that identified him with the agency, standing with the auctioneer and recording bids, the Tribunal treated him as if he were acting as an agent, which he was not allowed to do.
Contempt framework and preconditions (Bradford principles adopted)
Text (paraphrase): The preconditions include a Tribunal order, clear terms, service or dispensation of service, knowledge by the contemnor, breach, and voluntariness; each proven beyond reasonable doubt.
Plain English: To find contempt the Tribunal must prove it actually made an order, the person knew about it and clearly understood it, and then deliberately broke it. The standard of proof is beyond reasonable doubt.
Sentencing restraint on imprisonment
Text (paraphrase): 'The power to imprison for contempt is an extreme power which must be exercised as infrequently as possible, always with restraint.'
Plain English: Jailing someone for contempt is severe and should only happen in very special cases, usually when the breach is still happening and needs to be stopped immediately.
Jones v Dunkel inference applied
Text (paraphrase): Failure to call available witnesses may support an adverse inference that their evidence would not have assisted the party.
Plain English: If you have people who could help your case and you do not call them, the Tribunal can reasonably assume their testimony would not have helped you.
(These translations map the Tribunal's reasoning to plain outcomes; specific supporting paragraphs are found in the sections labelled ANALYSIS OF RESPONDENT'S CONDUCT, THE TRIBUNAL'S CONTEMPT POWERS, CIRCUMSTANCES OF THE CONTEMPT and FURTHER CONSIDERATIONS RELEVANT TO PENALTY in the judgment.)
What fact patterns trigger this precedent
Active participation in agency public-facing events while prohibited: turning up to auctions or opens, wearing agent attire, standing beside auctioneers, ringing auction bells, making notes of bids, handing out business cards that identify the person with the agency, these facts directly triggered the s 12 finding here.
Documentary indicia of management or financial involvement: being a signatory to company accounts, transfers from company accounts to personal accounts, use of company credit cards and being paid as an employee for duties resembling agent activity, these facts strengthen an inference of acting as an agent or being involved in management contrary to prohibition.
Knowledge of prohibition: an express prior order disallowing licence-holding or acting as agent, plus evidence the person was present when the order was made or had actual knowledge, essential for contempt.
Unwillingness to call available corroborating witnesses: the respondent's failure to call the daughter/agency personnel when available led the Tribunal to draw adverse inferences under Jones v Dunkel; such omissions make defence harder to accept.
How later courts have treated it
This decision itself cites and relies on established authorities (Noone v Mericka; Bradford; Varnavides; Deputy Commissioner of Taxation v Gashi; Kuhl v Zurich). Judge Jenkins expressly endorsed the approach in Noone v Mericka that the statutory definition in s 4 is the key inquiry point. The decision thus sits within the existing VCAT / VSC line that: (1) statutory definitions govern who is an agent; (2) Bradford's preconditions are the required framework for contempt proof; (3) Varnavides' caution about imprisonment remains binding, imprisonment reserved for continuing and extreme contempts.
Practitioners should view this decision as applying those authorities in a fact-specific context where covert surveillance and documentary indicia show public-facing agent-like conduct. It confirms VCAT will use contempt powers to sanction clear breaches of its orders and regulatory prohibitions.
Still-open questions
Scope of 'functions' under s 4: although the Tribunal reiterated that any of the functions may suffice, the boundary between purely clerical/administrative work permitted for unlicensed persons and agent functions remains fact-dependent. This decision shows the Tribunal will scrutinise public-facing conduct and indicia of management; but where exactly the line falls in marginal cases still requires assessment case-by-case.
Appropriate use of imprisonment: the Tribunal declined imprisonment because there was no continuing contempt. Future litigants may test the precise circumstances where immediate incarceration is justified; this remains a high-threshold factual inquiry governed by Varnavides and s 137.
Evidential sufficiency and covert surveillance: the Tribunal accepted covert surveillance and recordings as reliable; however, the exact evidentiary limits of such surveillance in closer cases (e.g., ephemeral interactions, delegated conduct) may generate disputes requiring further judicial clarification.
Financial indicia versus direct agent acts: the weight to be given to being a signatory, providing working capital or receiving payments (when not labelled 'commission') remains a matter where different factual matrices may produce different outcomes; the judgment declined to infer deceptive remuneration schemes on incomplete financial evidence. Future cases with clearer documentary trails could further develop this aspect.
Judgment (142 paragraphs)
[1]
Consumer Affairs Victoria v Talia (Review and Regulation) [2017] VCAT 146 (2 February 2017)
The Tribunal finds the Respondent guilty of contempt of the Tribunal pursuant to s 137(1)(f) of the VCAT Act_._
Pursuant to s 137(5)(a) of the VCAT Act, the Respondent is fined $10,000.
The Respondent shall pay the costs of the Applicant, on the Standard Basis, in accordance with the County Court Civil Procedure Rules 2008,[1] such costs to be determined by the Costs Court in default of agreement. However, if the Respondent elects to make any written submissions on the question of costs, no later than 20 February 2017, then this Order for Costs is stayed pending further Order.
[5]
By Order 5 of these Orders the Respondent is ordered to pay the costs of the Applicant, in the manner provided. However, the Respondent is given a further opportunity to make any written submissions on the question of costs before such Order or a variation to such Order takes effect. If the Respondent wishes to make such a submission, he should file with the Tribunal and serve upon the Applicant his written submission no later than 20 February 2017.
[6]
Notes: At the Directions Hearing on 19 October 2016, Mr Talia was warned that the Tribunal's powers include a custodial sentence and financial penalties. It was strongly recommended to Mr Talia that he obtain legal advice prior to the hearing of this matter.
[7]
By application dated 22 September 2016 and filed with the Victorian Civil and Administrative Tribunal (Tribunal) on 23 September 2016, Consumer Affairs Victoria (CAV) applied to the Tribunal for certain Orders consequent upon a finding that John Talia (Respondent):
(c) is in contempt of the Tribunal contrary to s 137(1)(f) of the VCAT Act.
Specifically, CAV seeks orders that the Respondent:
(a) be committed for a period of imprisonment for breach of s 12 of the EA Act;
(b) be committed for a period of imprisonment for breach of s 133(1) of the VCAT Act;
(c) be fined for breach of s 133(1) of the VCAT Act;
(d) be committed for a period of imprisonment for breach of s 137(1)(f) of the VCAT Act; and
(e) be fined for a breach of s 137(1)(f) of the VCAT Act.
CAV seeks the above orders by reason that:
(a) on 25 June 2010, the Tribunal declared the Respondent permanently ineligible to hold an estate agents license or to be an agent's representative; and
(b) between 18 December 2014 and 12 March 2016, the Respondent has been carrying out the functions of a real estate agent and/or real estate agent's representative, in contravention of the EA Act and the VCAT Act.
[8]
On 22 August 2008, the Respondent was convicted in the County Court of Victoria of one count of obtaining property by deception and subsequently sentenced to a term of imprisonment.
On 8 February 2010, CAV applied to the Tribunal for the holding of an inquiry pursuant to s 28(1)(b) of the EA Act to determine whether the Respondent is of good character or is otherwise a fit and proper person to be an agent's representative.
A hearing was conducted before the Tribunal on 25 May 2010, on the basis of 'essentially a statement of agreed facts'.[2]
On 25 June 2010, the Tribunal made the following Orders in relation to the Respondent (2010 Tribunal Orders):
[9]
The Tribunal determines that the respondent is not of good character and is not otherwise a fit and proper person to be an agent's representative.
[10]
The Tribunal determines that the respondent has been guilty of conduct as an agent's representative which renders him unfit to be an agent's representative.
[11]
The Tribunal declares the respondent to be permanently ineligible to hold a licence or to be an agent's representative.
[12]
Accordingly, from 25 June 2010, the Respondent was ineligible to act either as a licensed real estate agent or an agent's representative.
At a Directions Hearing on 19 October 2016, the Respondent appeared in person, having received notification from the Tribunal of a listed Hearing. However, the Respondent claimed that he had not received an application from CAV or the Tribunal and was unaware as to the nature of the application.
The Tribunal made Orders for the further service of documents by CAV and the service and filing of written submissions by each party.
The nature of an application for contempt and the possible determinations which could be made by the Tribunal, upon a finding of contempt, were explained to the Respondent. It was also strongly recommended to the Respondent that he seek legal advice and representation, before the next Hearing.
On or about 21 November 2015, at East Doncaster, in the State of Victoria, knowing that you were permanently ineligible to hold a license or to be an agent's representative, you held yourself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent; and thereby contravening section 12 of the Estate Agents Act 1980 (Vic).
On or about 5 March 2016, at Bulleen, in the State of Victoria, knowing that you were permanently ineligible to hold a license or to be an agent's representative, you held yourself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent; and thereby contravening section 12 of the Estate Agents Act 1980 (Vic).
On or about 12 March 2016, at Doncaster, in the State of Victoria, knowing that you were permanently ineligible to hold a license or to be an agent's representative, you held yourself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent; and thereby contravening section 12 of the Estate Agents Act 1980 (Vic).
On 25 June 2010 by order of the Victorian Civil and Administrative Tribunal you became permanently ineligible to hold a real estate license or to be an agent's representative, but between 18 December 2014 and 12 March 2016 ("period") you did not comply with an order of the Tribunal in that you were participating in the business activities of Bond Real Estate Pty Ltd A.C.N. 050 139 305 during the period, in contravention of of the ;
[14]
The following officers of CAV, who conducted an investigation into the Respondent's conduct, provided Affidavits and gave oral evidence:
The Respondent appeared in person and gave oral evidence. He also called his accountant, Anthony Luttick; and daughter, Danielle Talia, to give limited evidence. The Respondent also provided a written submission subsequent to the Hearing.
Ms Danielle Talia (Ms Talia) is the daughter of the Respondent and at all relevant times: held an estate agent's licence; was the sole Director and Secretary of the licensed estate agent, Bonds Real Estate Sales Pty Ltd (BRE); and the Officer in Effective Control of BRE.[11]
[15]
On 29 September 2015, Ms Williams and Mr Scott attended the business premises of BRE, trading as Stockdale & Leggo Doncaster-Templestowe, at 288 Blackburn Road, Doncaster. The purpose of the attendance was to conduct a compliance inspection pursuant to s 70J of the EA Act. The officers spoke to Ms Talia, as the officer in effective control. Whilst examining random sales files, Ms Williams observed as follows:
[16]
During the examination, Inspector Scott and I saw a male person enter an adjacent room. The male person opened a cupboard door and appeared to be looking for something in the cupboard. Whilst there, the male person turned and look towards our direction and then closed the cupboard and left the room.[12]
[17]
Mr Scott subsequently made inquiries of the CAV data bank and located a photograph of the Respondent. Ms Williams was subsequently shown that photograph of the Respondent and both Ms Williams and Mr Scott agreed that it matched the identity of the male person seen at the inspection.[13]
Under cross-examination Ms Williams confirmed that:
(a) when she saw the Respondent during the inspection, she did not know the contents of the cupboard which he appeared to be accessing or whether he removed anything;
(b) she could not recall seeing the Respondent's name appear in any sales files examined;
(c) she could not recall how many sales files were examined;
(d) she did not ask for any further documents from Ms Talia; and
(e) she could not recall looking at any rental or employee files.
However, Ms Williams confirmed that when the inspection was conducted, she merely understood it was a normal compliance inspection. The name of the Respondent had not been brought to her attention; she was not looking for his name and had no reason to make a note of his name.
[18]
Mr Michael Scott gave evidence that following receipt of a complaint he was instructed to conduct certain investigations. He identified two auctions, one of which was cancelled and one which he attended at 98 Bellevue Avenue, Doncaster East on 21 November 2015. He took photographs which showed the Respondent's black Porsche and the presence of the Respondent at various stages of the inspection and auction. He also observed Ms Talia present at the auction.
Mr Scott observed the Respondent:
(a) wearing a dark suit and the same coloured striped tie worn by all Stockdale & Leggo agents, including the auctioneer;
(b) conversing with the auctioneer and other persons from the estate agency as well as attendees at the auction;
(c) carrying brochures under his arm;
(d) standing next to the auctioneer at the beginning and during the auction; and
(e) accompanying the auctioneer together with other agents inside the house at the conclusion of the auction.
Mr Scott made his observations from across the road and from the nature strip at the front of the property. He did not converse with the Respondent. In February 2016, Mr Scott advised Ms Lim of his preliminary investigations.
Ms Lim gave evidence that as a result of discussions with Inspector Scott concerning enquiries he had made, it was determined that the Respondent may be acting as an agent or agent's representative. Consequently, in February 2016, two forthcoming auctions in March were identified at which compliance officers would be instructed to attend and conduct covert surveillance. In addition, searches were undertaken in relation to BRE; Ms Talia;[14] and banking records for the Respondent and BRE.
An examination of relevant banking records for accounts in the name of BRE revealed the following:[15]
(a) Ms Talia, the Respondent and Susan Talia [the Respondent's ex wife] are signatories on the Cash Management Account and Business Cheque Plus Account;
(b) Ms Talia, the Respondent, Susan Talia and Michael Talia [the Respondent's son] are signatories on the Statutory Trust Account; and
(c) Transfers from the Cash Management Account and Business Cheque Plus Account of BRE to personal accounts of the Respondent.
[19]
On 5 March 2016, Mr Sherry and Ms Leveleky both attended an auction scheduled at 13 Valentine Street, Bulleen. They were instructed by Inspector Lim to make covert observations, including taking photographs and digital voice recordings.[17] I am satisfied that both witnesses gave consistent evidence which, in summary, revealed:
(a) They observed the Respondent arrive at the property in his black Porsche, wearing a black suit and striped tie;
(b) The male employees, including the Respondent and the auctioneer, all wore an identical coloured tie;
(c) After entering the property, the officers briefly inspected the house [when agent Lee took their details] and exterior; and also took photographs, including the Respondent speaking to the auctioneer;
(d) They approached the Respondent and engaged in a conversation about the property, as if they were interested purchasers. The Respondent referred to: views from the site; other properties sold; options for redevelopment and permits; and when asked his name, the Respondent said 'John';
(e) After the officers crossed the road to stand with other people attending the auction, the Respondent approached them and engaged in a conversation about an extended settlement time which would be acceptable to the vendor. The Respondent also answered various questions from the officers, including advice as follows:
(i) They had sold properties in the area for a long time;
(ii) Prices have increased in Nunawading and nearby;
(iii) Information is available on the [office] website; and
(iv) 'Been here for 30 years, so know it pretty much, pretty well'.[18]
(f) When asked for a business card the Respondent handed over a Stockdale & Leggo business card bearing his name and description 'John Talia General Manager' and including business telephone, facsimile, mobile, personal business email and website contact details;[19]
(g) The officers observed and took a photograph of the Respondent, the auctioneer, and another agent [Lee] conversing with another attendee in the driveway, with the Respondent's daughter Ms Talia also present nearby;
[20]
On 12 March 2016, Ms Patras and Ms Chheang both attended an auction scheduled at 953 Doncaster Road, Doncaster. They were instructed by Inspector Lim to make covert observations, including taking photographs and digital voice recordings.[21] I am satisfied that both witnesses gave consistent evidence which, in summary, revealed:
(a) They observed the Respondent arrive at the property in his black Porsche; he wore a dark suit and striped tie;
(b) The male employees, including the Respondent and auctioneer, all wore an identical coloured tie;
(c) Upon arriving at the property, a female employee, whom they now know to be Ms Talia, took their details;
(d) Upon walking to the front of the property, they observed the Respondent and agent Lee standing in front of the yard; the Respondent was holding brochures relating to the property;
(e) Agent Lee approached and spoke to them; the officers then approached the Respondent and asked him questions in relation to the sale of the property; the Respondent answered a range of general questions, including confirming that there were no restrictions for builders, commenting 'It is D008 here so no restrictions'; he did not refer them to anyone else, except he asked agent Lee about the terms of settlement;
(f) Ms Patras stated that she saw both agent Lee and the Respondent interacting with people as they entered the house;
(g) Ms Chheang stated that she saw the Respondent speaking with other agents;
(h) Ms Chheang stated that both agent Lee and the Respondent made themselves available to answer questions of attendees prior to the auction commencing;
(i) The officers observed the Respondent ring a bell to signal that the auction was about to commence;
(j) At the beginning of the auction, the auctioneer introduced the Respondent by name, together with other named agents in attendance, to assist with the sale of the property;
(k) During the auction the officers observed the Respondent standing next to the auctioneer holding a clipboard; he then wrote down bids on a piece of paper; on two occasions the Respondent accompanied the auctioneer into the house when the auctioneer wanted to consult the vendor;
[21]
The Respondent consistently denied any responsibility for his actions. Furthermore he stated that the investigation by CAV is flawed ..."they don't have anything on me" and that his daughter "told me she had checked and it would be okay".
The Respondent called his daughter Ms Talia for the limited purpose of giving evidence as to enquiries which she said she had made prior to engaging the Respondent at her estate agency.
Ms Talia said that she spoke to a woman at CAV and made a general enquiry as to whether she could employ someone to perform office duties, who was not licensed or an agent's representative. She did not mention anything about the Respondent or his background.
Ms Talia confirmed that:
(a) she already knew that a person did not need to be licenced to perform clerical duties; and
(b) she was aware of the 2010 Tribunal Order which permanently prohibited the Respondent from acting as an estate agent or agent's representative.
Mr Steven Scodella, Operations Manager of the Regulatory Transaction Centre, Licensing Branch of CAV provided an affidavit sworn 12 December 2016 and also gave oral evidence. He describes the records kept and maintained by the Business Licensing Authority, which includes a record of all telephone contact by members of the public. A search of such records for 2012 did not reveal any contact having been made by Ms Talia, either in her maiden name or former married name.
In my view, there is no evidence that either Ms Talia or the Respondent made any enquiries of CAV or any other Stockdale & Leggo agency, in relation to the Respondent working for BRE in any capacity.
The Respondent called his accountant, Anthony Luttick, to give evidence on his behalf. Mr Luttick appeared by telephone link, being on leave and accordingly he did not have access to his office records.
Mr Luttick prepares the income tax returns for the Respondent and the business of BRE. He confirmed that for four tax years, from 2013 to 2016 inclusive, the Respondent's occupation was described as 'real estate agent'. Mr Luttick stated that he was aware that the Respondent was not permitted to act as a real estate agent or agent's representative and that the description in the tax returns was a mistake. He has now made the correction to his computer system but has not and does not propose to notify the Australian Taxation Office.
[22]
It is an offence to fail to comply with an order of the Tribunal. Specifically s 133(1) of the VCAT Act provides:
[23]
(1) A person who does not comply with an order of the Tribunal, other than a monetary order, is guilty of an offence.
[24]
Penalty: Imprisonment until the person complies with the order or for 3 months, whichever is sooner or a fine of 20 penalty units and 5 penalty units for each day the non-compliance continues after the making of the order, up to a maximum total fine of 50 penalty units or both imprisonment and fine.
[25]
In addition, failure to comply with an order of the Tribunal may constitute a contempt. Section 137 of the VCAT Act provides, so far as relevant to the circumstances of this application, as follows:
[26]
Contempt
(1) A person is guilty of contempt of the Tribunal if they -
...
(f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.
(2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may -
(a) direct that the person be arrested and brought before the Tribunal; or
(b) issue a warrant for his or her arrest in the form prescribed by the rules.
(3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit.
...
(5) If the Tribunal finds that the person is guilty of contempt of the Tribunal, it may -
(a) in the case of a natural person, commit the person to prison for a term of not more than 5 years or impose a fine of not more than an amount that is 1000 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004 or do both;
(b) in the case of a corporation, impose a fine of not more than an amount that is 5000 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004.
(5A) In considering whether, and the term for which, to commit a person to prison for a contempt, the Tribunal may have regard to the provisions of Part 2 of the Sentencing Act 1991 as if it were a court considering imposing a sentence of imprisonment in respect of an offence.
[27]
Section 137(1)(f) gives the Tribunal 'very wide powers'.[25] Any act that would be regarded as amounting to a contempt of the Supreme Court would be dealt with under that provision. The Tribunal can punish all forms of contempt that are punishable by the Supreme Court. The wilful failure to comply with an order of the Supreme Court is punishable as a contempt. Accordingly, by virtue of s 137(1)(f), the failure of a person to comply with an order of the Tribunal constitutes a contempt of the Tribunal.[26]
Conduct which may constitute a contempt of court [and therefore a contempt of the Tribunal] was concisely stated In Legal Services Board v Forster:[27]
[28]
[43] It is established law that an intentional failure to comply with a judgment or order of a court requiring a person to abstain from doing something constitutes a contempt of court.[28] Furthermore, it is a contempt of court where a person's intentional conduct has a tendency to interfere with the course of justice.[29]
[29]
In Bradford v Dimopoulos[30] the following preconditions for the exercise of the contempt power were usefully identified by Judge Harbison VP, in the context of an allegation of non-compliance with a Tribunal order:
(a) That an order has been made by the Tribunal;
(b) That the terms of the order are clear, unambiguous, and capable of compliance;
(c) That the order was served on the contemnor, or service excused or dispensed with;
(d) That the contemnor had knowledge of the terms of the order;
(e) That the contemnor breached the terms of the order; and
(f) That the act constituting the breach was voluntary.
Each of the elements must be proven beyond reasonable doubt. In this case, the only contested element is whether the Respondent knowingly and intentionally breached the terms of the 2010 Tribunal Order.
(i) is employed by, or who acts for or by arrangement with, a licensed estate agent; or
[32]
(ii) is a director, member or officer of a corporation that is a licensed estate agent; and
[33]
(h) who performs for that estate agent any of the functions of an estate agent (other than work ordinarily performed by clerks, cashiers or accountants) - regardless of whether his or her remuneration is by way of salary, wages, commission or otherwise;
[34]
"estate agent" or agent means any person (whether or not he carries on any other business) who exercises or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out to the public as ready to undertake the business of -
[35]
(a) selling buying exchanging letting or taking on lease of or otherwise dealing with or disposing of;
[36]
(b) negotiating for the sale purchase exchange letting or taking on lease of or any other dealing with or disposition of;
[37]
(c) collecting rents for - any real estate or business on behalf of any other person;
[38]
"estate agent's licence" means a valid and unexpired estate agent's licence under this Act;
[39]
Section 12 of the Estate Agent's Act 1980 (Vic) states "
[40]
(1) Subject to this Act an individual shall not either by himself or as a member of a partnership -
[41]
(a) exercise or carry on or advertise notify or state that he exercises or carries on or is willing to exercise or carry on the business of an estate agent; or
[42]
(c) in any way hold himself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent - unless he is a licensed estate agent.
[43]
(a) exercise or carry on or advertise notify or state that it exercises or carries on or is willing to exercise or carry on the business of an estate agent; or
[44]
(c) in any way hold itself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent unless it is a licensed estate agent
[45]
(3) Where a licensed estate agent does not carry on business as an estate agent otherwise than as an employee of an estate agent -
[46]
(a) sections 44, 47, 51, 59(6) and 62 shall apply to him as if he were an agent's representative for the purposes of this Act; and
[47]
(b) sections 25, 29, 45 and 91 shall apply to him as if he were an estate agent for the purposes of this Act.
[48]
CAV submits that:
(a) the conduct of the Respondent, whilst present at the auctions on 25 November 2015, 5 March 2016 and 12 March 2016, falls within the definition of an estate agent and/or agent's representative and is therefore in breach of section 12 of the Estate Agents Act 1980 (Vic); and
(b) the conduct of the Respondent from at least 8 March 2011, falls within the definition of an estate agent and/or agent's representative and is therefore in breach of section 12 of the Estate Agents Act 1980 (Vic) and demonstrates a willingness on the part of the Respondent to disregard the fact that he was ineligible to act as an estate agent and/or agent's representative.
In relation to the 2010 Tribunal Orders, the Respondent admitted both knowledge of the Orders and that he understood that he was thereby prohibited him from acting as or holding himself out to be a real estate agent or agent's representative. His defence to all charges is essentially that none of the activities which he performed, either individually or collectively, constituted the duties of an agent or agent's representative or constituted holding himself out to either effect.
In addition, the Respondent was critical of the CAV investigation, alleging to the effect that it was limited in its scope, such as failing to attend other auctions and open for inspections and failing to investigate other activities commonly undertaken by an agent or agent's representative.
In my view, similar criticisms as raised by the Respondent were considered and rejected in Noone, v Mericka & Ors.[31] In that case Sifris J emphasized that the relevant enquiry to consider is whether the defendant falls within the definition of s 4 of the EA Act_._ Senior Counsel for the defendants submitted that the Court should take judicial notice of the functions of an estate agent. Counsel sought to impress upon the Court certain functions of an estate agent which were not performed by the defendants and therefore they could not be carrying on the business of an estate agent. Sifris J rejected this submission:
[49]
In my opinion, the activities undertaken by Lawyers Real Estate fall within the definition contained in section 4 of the Estate Agents Act. They do not cease to fall within the definition because of the characteristics and identity of the person performing the services, namely that the person is an Australian legal practitioner or an incorporated legal practice, although in such case the exemption may apply. Further, they do not lose their character because the activities differ from the activities or approach traditionally adopted by estate agents (if this be the case and I am not persuaded that this is so despite, it must be acknowledged, some differences). The fact that no inspections were done and no valuations obtained is not to the point. Both matters are irrelevant to the present enquiry. The only relevant enquiry is whether Lawyers Real Estate falls within the definition of estate agent in section 4(1) of the Estate Agents Act. For the reasons given it does so in spades.[32]
[50]
I endorse the comments of Sifris J. It is sufficient for the purpose of the CAV inquiry that the Respondent is found to have performed any of the functions of a licensed agent or agent's representative. The extent and circumstances in which such functions may be found to have been performed, is then relevant to the gravity of the conduct.
I will now deal with my findings in respect to each of the circumstances investigated by CAV officers.
[51]
There is no specific charge in relation to any observation made by CAV officers on 29 September 2015, while conducting a file inspection at the business premises of BRE. The evidence presented to the Tribunal, which was not contested, merely proved that the Respondent was present at the business premises of BRE during business hours.
[52]
CAV Officers conducted covert surveillance on three dates, selected randomly, on which auctions were listed for BRE, trading as Stockdale & Leggo. The Respondent was present and engaged in relevant conduct at each of these auctions.
The Respondent gave evidence that these were the only auctions which he has attended since being engaged by BRE in early 2013. He said that he was requested by Ms Talia, in each case, to 'fill in' for another agent's representative who was unable to attend. In addition, he said that Ms Talia asked him to make observations and take notes of the performance of other agents and report back to Ms Talia, who was said to be concerned to improve the standard and service offered to the public.
I reject the evidence given by the Respondent, by way of explanation for his attendance at the subject auctions, as highly improbable and inconsistent with the facts and circumstances. In particular, it is significant that:
(a) Ms Talia was also observed to be present at each of these auctions;
(b) The Respondent elected not to call either Ms Talia, the agent's representative for whom the Respondent was allegedly 'filling in'; or any other BRE agent who attended any of the subject auctions, to confirm any aspect of the Respondent's explanation;
(c) The Respondent provided no evidence of notes taken during his attendance, which allegedly recorded his observations of other agents;
(d) The Respondent did not call any evidence from Ms Talia or any other agent as to meetings which he understood were subsequently convened by Ms Talia following his report to her; and
(e) No other explanation was given by the Respondent as to what role he was instructed to perform at these auctions, in place of the agent's representative for whom he was allegedly 'filling in'.
Ms Talia was present throughout the hearing, was called to give limited evidence [in relation to her inquiries with CAV prior to engaging the Respondent] and was clearly available to have been called to support the Respondent's evidence.
No explanation was given by the Respondent for his failure to call Ms Talia. Accordingly, I draw the only reasonable conclusion from such failure that any evidence of Ms Talia would not have assisted the Respondent.
[53]
I am satisfied from the evidence of Mr Scott and the photographs taken, that the Respondent was observed:
(a) to attend the auction site prior to the commencement of the auction;
(b) to be attired in an equivalent manner to the manner in which other male agents, including the auctioneer, were attired and which clearly identified him as an employee of Stockdale & Leggo;
(c) to carry brochures for the auction;
(d) to be conversing with the auctioneer, other agents and attendees at the auction;
(e) to be standing next to the auctioneer throughout the duration of the auction; and
(f) to accompany the auctioneer and others agents into the house at the conclusion of the auction.
I am satisfied beyond reasonable doubt, upon the evidence before the Tribunal, that the Respondent held himself out to the public:
(a) to be an employee of the Stockdale & Leggo, and
(b) to be actively involved in assisting or ready to assist with the conduct of the open for inspection and subsequent auction, in the same manner as would be expected of a licensed agent or agent's representative.
My conclusions in relation to the limited observations made of the Respondent on 21 November 2015, are confirmed by the more detailed observations made at two auctions in March 2016.
[54]
I am satisfied from the evidence of Mr Sherry and Ms Leveleky, together with the photographs taken and the audio and transcript of recorded conversations, that the Respondent was observed:
(a) to attend the auction site prior to the commencement of the auction;
(b) to be attired in an equivalent manner to the manner in which other male agents, including the auctioneer, were attired and which clearly identified him as an employee of Stockdale & Leggo;
(c) to be conversing with the auctioneer, other agents and attendees at the auction;
(d) to locate himself in a position where he held himself out to be available to respond to inquiries made by members of the public;
(e) to engage in conversation with the CAV officers, providing relevant information of a kind that would be expected to be given by a licensed agent or agent's representative;
(f) to provide a business card, upon request, to a member of the public branded 'Stockdale and Leggo' with his name and the title 'business manager'; contact telephone, mobile and facsimile numbers and an email of jtalia@stockleggo.com.au;
(g) to approach the officers after they had crossed the road to stand with other members of the public, awaiting commencement of the auction, and engage in another conversation about settlement terms and answer further inquiries ;
(h) to be standing next to the auctioneer throughout the duration of the auction and making notes on a clip board when the auctioneer took bids; and
(i) to accompany the auctioneer into the house, to confer with the vendor during the auction; and to accompany the auctioneer and other agents into the house at the conclusion of the auction.
[55]
I am satisfied from the evidence of Ms Patras and Ms Chheang, together with the photographs taken and the audio and transcript of recorded conversations, that the Respondent was observed:
(a) to attend the auction site prior to the commencement of the auction;
(b) to be attired in an equivalent manner to the manner in which other male agents, including the auctioneer, were attired and which clearly identified him as an employee of Stockdale & Leggo;
(c) to be conversing with the auctioneer, other agents and attendees at the auction;
(d) to locate himself in a position where he held himself out to be available to respond to inquiries made by members of the public;
(e) to be holding brochures for the auction;
(f) to engage in conversation with the CAV officers, providing relevant information of a kind that would be expected to be given by a licensed agent or agent's representative;
(g) to ring the auction bell to signal that the auction was about to commence;
(h) to be standing next to the auctioneer throughout the duration of the auction and making notes on a clip board when the auctioneer took bids;
(i) to approach and speak to the highest bidder at the conclusion of the auction; and
(j) to accompany the highest bidder and the auctioneer into the house, to negotiate with the vendor.
Significantly also, at both of the above March 2016 auctions, I am satisfied that:
(a) The Respondent was present only in the company of licensed estate agents and agent's representatives, there being no other unlicensed or administrative staff present;
(b) He interacted and behaved similar to that of the other agents. In particular, there was no effort made by the Respondent to create a demarcation between his conduct and the conduct of other agents;
(c) The auctioneer introduced the Respondent by name, together with other named agents, as available to assist members of the public; and
(d) At no stage did the Respondent:
(i) say to the CAV officers that he was not an agent or agent's representative;
(ii) that he was not authorized to answer their inquiries; or
[56]
The court [and therefore the Tribunal] may decline to convict where contempt has been established,[33] which may be properly described as a technical contempt. That is not this case. I am satisfied that the conduct of the Respondent was not casual, accidental or unintentional - it was deliberate, conscious and voluntary conduct.
In Deputy Commissioner of Taxation v Gashi & Anor (No 3) Dixon J listed the following relevant principles applicable to sentencing for contempt:[34]
The considerations relevant to determining an appropriate penalty include the following:
[57]
(d) the effect of the contempt on the administration of justice;
[58]
(f) the need to deter the contemnor and others from repeating the contempt;
[59]
(g) the contemnor's reasons for his or her conduct;
[60]
(h) the absence or presence of a prior conviction for contempt;
[61]
(j) whether the contemnor has exhibited general contrition and made a full and ample apology.
[62]
I will now consider the above principles in the context of this case.
[63]
There is no evidence, expert or otherwise, as to any mental illness affecting the Respondent or any other circumstance which might have a bearing upon his capacity to understand the nature of his obligations under the EA Act or compliance with the 2010 Tribunal Orders.
[64]
The nature and circumstances of the contempt.
[65]
There is no question that the conduct of the Respondent was conscious intentional, and voluntary.
The Respondent could have performed clerical and administrative duties for BRE without ever contravening the terms of the 2010 Tribunal Orders. However, his conduct is consistent with a flagrant disregard for the prohibition against acting as a licensed agent or agent representative.
It is apparent that notwithstanding the 2010 Tribunal Orders, by apparently investing or maintaining the investment of working capital in the BRE business the Respondent was inextricably connected with its operations, management and success. He was not a silent or distant investor but chose to become engaged directly in the conduct and management of the business by seeking or accepting authorisation as a signatory to the business accounts, subsequent to the 2010 Tribunal Orders.
[66]
The regulatory regime of the EA Act seeks to ensure that only suitably qualified persons are authorised to be licensed estate agents or agent's representatives and otherwise continue to comply with statutory requirements. Members of the public are entitled to take at face value those persons who present themselves, as the Respondent purported to do, as a licensed agent or agent's representative.
In this case, although no member of the public is alleged to have suffered any financial loss or prejudice by reason of misinformation being given to them, the actions of the Respondent seriously undermine the integrity of the regulatory regime and the confidence which members of public are entitled to having it.
[67]
The effect of the contempt on the administration of justice
[68]
In my view, the Respondent has demonstrated a complete contempt for the 2010 Tribunal Orders.
Furthermore, the Respondent has demonstrated a willingness to defy the restrictions placed upon him, in terms of the requirements of the EA Act and has chosen to act, partly in a covert manner, in defiance of the regulatory requirements.
[69]
The Respondent is solely responsible for the failure to comply with the 2010 Tribunal Orders. He has not in any way indicated a lack of understanding of his obligations. He was present when the 2010 Tribunal Orders were made and was legally represented at the time.
I am satisfied that there is no remorse, apology or even a credible explanation for his conduct.
There is a further aspect to the gravity of the Respondent's misconduct submitted by CAV. Specifically, it was submitted that the Respondent engaged in conduct over a lengthy period of time which was deliberately designed to avoid detection. In this regard, CAV referred to:
(a) The Respondent remaining off the official books as a real estate agent and/or agent's representative, while continuing to act in the capacity as a licensed real estate agent and/or agent's representative in direct defiance of the 2010 Tribunal Orders;
(b) The Respondent's name was not detected on any property paperwork or listings; and
(c) The Respondent was not observed to wear a name badge at inspections or auctions.
While each of the above circumstances may be consistent with a deliberate intention to avoid overt detection or association, in my view, it is both unnecessary and speculative to draw any inferences in this regard. The conduct of the Respondent, as detailed above, is cogent evidence in itself of its nature, purpose and effect.
CAV further submits that the Respondent effectively sought to disguise the nature of his true remuneration by falsely characterising certain payments as drawings on his loan account.
In my view, the evidence of any alleged working capital or loans provided by the Respondent to BRE is wholly unsatisfactory. The Respondent has not provided any documentary evidence to confirm any such financial arrangements. The financial statements which have been provided are incomplete and have not been subject to audit. For the purpose of the findings made, it is both unnecessary and speculative to draw any further inferences in this regard.
[70]
The need to deter the contemnor and others from repeating the contempt
[71]
In considering a sentence for contempt, it is imperative to convey both the serious nature of Tribunal orders, as well as the need for this Tribunal to be able to have its own orders enforced. Indeed, it is fundamental to the administration of justice that parties in whose favour orders are made can have confidence, not only that orders of the Tribunal are capable of being registered and enforced as orders in the appropriate court; but also that when a party remains in wilful defiance of such orders, there is an effective mechanism which seeks to compel compliance by the imposition of appropriate sanctions.
Furthermore, in the case of the 2010 Tribunal Orders, designed for the protection of members of the community generally, an appropriate sanction will also signal to the community that breach of these kinds of orders, will not be tolerated and will attract appropriate sanctions.
[72]
There have been no cogent reasons advanced by the Respondent as to why he has not complied with the 2010 Tribunal Orders. I am satisfied that the Respondent gave generally evasive and non-responsive answers to questions under crossexamination and also from the Tribunal.
Furthermore, the manner in which the Respondent sought to justify the duties which he undertook in his employment with BRE were disingenuous. In particular;
(a) He made no personal enquiries of CAV or the Business Licensing Authority regarding his intended activities;
(b) He relied upon a purported vague reference to a general enquiry made by Ms Talia about the employment of a non-licensed person in the capacity as an administrative assistant; and
(c) There are no records held by the Business Licensing Authority of any enquiries being made by Ms Talia in either her maiden name or her former married name in respect to the employment of the Respondent.
In my view, by failing to clarify with the Business Licensing Authority or CAV that the duties which he intended to undertake were consistent with the 2010 Tribunal Orders, the Respondent has demonstrated either that he well knew that his proposed duties contravened such Orders and the EA Act and/or the Respondent has demonstrated a reckless disregard for the likelihood of such contraventions.
[73]
The absence or presence of a prior conviction for contempt
[74]
There is no evidence of prior conviction for contempt or failure to comply with a prior Court or Tribunal Order.
[75]
Although there is no evidence of financial particulars, there is no evidence that the Respondent is impecunious.
The Respondent gave limited oral evidence of his current financial circumstances, which included living in rented accommodation and being currently unemployed. He also alluded to investment income. However no particulars of his financial status generally was provided.
[76]
Whether the contemnor has exhibited general contrition and made a full and ample apology
[77]
The Respondent has exhibited no general contrition and given no apology. Indeed, in the face of compelling evidence to the contrary the Respondent has stridently denied any non-compliance with the 2010 Tribunal Orders and rejected any suggestion that his actions constituted conduct of an estate agent or agent's representative.
In my view, the Respondent has demonstrated an arrogant and defiant disregard for the restrictions placed upon him by the 2010 Tribunal Orders and has failed to demonstrate any insight into the nature or gravity of his offending conduct.
As previously mentioned, there was no evidence given by any independent source such as BRE employees, the auctioneers who attended the auctions or anyone from Stockdale & Leggo head office as to the administrative or clerical nature of the role claimed to be undertaken by the Respondent.
At this point it is appropriate to refer to Kuhl v Zurich Financial Services Australia Ltd,[35] where the High Court explained the often quoted rule in Jones v Dunkel[36]
[78]
[63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. ...
[79]
[64] The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. ...
[80]
In the circumstances, I do draw the only reasonable inference from the unexplained failure of the Respondent to call relevant witnesses, that the uncalled evidence would not have assisted the Respondent's case.
In his reasons for judgment Senior Member Billings noted:
[81]
I am mindful of the likely impact that a declaration of ineligibility will have upon Mr Talia, not just because of his age. He may now have to try to restore his reputation by working in some other occupation.
[82]
Counsel for CAV submitted that the above comment is consistent with prohibition in the 2010 Tribunal Orders extending to any work within the real estate industry. I disagree. When read in context, the comments of SM Billings were merely anticipating that the Respondent would likely be pursuing another career outside of the real estate industry. If the Respondent had limited his duties while working for BRE to those of a purely clerical/administrative nature, then there would have been no contravention of the 2010 Tribunal Orders.
[83]
In Varnavides v Victorian Civil & Administrative Tribunal & Anor,[37] the Court of Appeal analysed the Tribunal's contempt powers and its conclusions, relevant to this case are as follows:[38]
(a) Although the Sentencing Act1991 does not apply to punishment of contempt in the same way as it applies to sentencing for other criminal offences, contempt of court is a serious offence which should be approached as far as possible in the same way as criminal conduct generally;[39]
(b) Therefore, when determining the appropriate punishment, it is appropriate to consider the need to provide specific and general deterrence;[40]
(c) The Tribunal's powers to punish for contempt are strictly limited to those set out in s 137 of the VCAT Act;
(d) The provisions in ss 137 and 138 of the VCAT Act do not envisage the imposition of a suspended sentence, nor can any equivalent power (nor any power to impose a self-executing order for imprisonment) be derived from section 130 of that Act;
(e) The only sentence of imprisonment contemplated and available under section 137 of the VCAT Act is one involving immediate incarceration; however, the Tribunal can remit some or all of the penalty imposed where there has been purging of the contempt through apology or other conduct directed to rectifying the situation; and
(f) The power to imprison for contempt is an extreme power which must be exercised as infrequently as possible, always with restraint and not for extraneous purposes.
The authorities have identified further relevant considerations to the determination of the appropriate penalty in a contempt proceeding, including:
(a) the seriousness of the contempt, the culpability of the contemnor and whether he or she has demonstrated contrition;[41]
[84]
139 Double jeopardy
If an act or omission constitutes both an offence against this Act and a contempt of the Tribunal, the offender is liable to be charged either with the offence or the contempt or both but is not liable to be punished more than once for the same act or omission.
[85]
CAV submits that consistent with the approach taken in Varnavides case, the Respondent's conduct warrants a period of immediate incarceration.
The Respondent has demonstrated no remorse, and no apparent insight into the nature and extent of his non-compliance with the EA Act and the 2010 Tribunal Orders. However, there is no question that the power to imprison for contempt must be exercised only in the most exceptional circumstances and where no other lessor penalty will suffice.
The Respondent gave evidence that he is no longer employed by BRE and that his employment was terminated by Ms Talia in mid-December 2016. No evidence to such effect was given by Ms Talia. However, accepting that the Respondent is no longer employed in any capacity by a licensed real estate agent, there is currently no continuing contempt. In these circumstances it is not appropriate to commit the Respondent to a term of immediate imprisonment. Such a sanction is generally reserved for circumstances where there is a continuing contempt and an order for imprisonment may act as a powerful inducement to purge such contempt.
Nevertheless both Specific and General Deterrence are relevant factors to take into account in imposing an appropriate sanction in this case. As indicated above the Respondent has demonstrated unequivocal denial of any responsibility. He has elected to conduct his defence without reliance upon any evidence of other agents or staff engaged by BRE, which could be expected to have provided corroboration. Furthermore, the Respondent has failed to demonstrate any insight into the nature of his offending conduct or remorse for it.
The investigation of the Respondent's misconduct is necessarily time-consuming, detailed and expensive. It is critical to the maintenance of public confidence and the integrity of the regulatory system that such investigations be conducted and prosecuted in a timely manner. Persons in the position of the Respondent, whether merely unlicensed or as in his case, prohibited from ever being licensed, ought to be under no apprehension that their misconduct will be investigated and dealt with appropriately.
On the basis that the Respondent is no longer in any way associated with BRE or any other real estate agency, I have concluded that the appropriate sanction in this case is the imposition of a significant fine, in the sum of $10,000.
[86]
In its written submission, CAV seeks an order for costs. The award of costs in contempt matters is governed by s 109 of the VCAT Act, which so far as relevant to this application states:
[87]
(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
[88]
(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -
[89]
(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -
[90]
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
[91]
(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment; while
[92]
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
[93]
(e) any other matter the Tribunal considers relevant.
[94]
In Port Phillip CC v Ironcroft Pty Ltd (No 2)[51] Justice Morris P observed that it is usual, or at least common, for a contemnor found guilty of contempt to pay the costs of the prosecutor, often on a solicitor/client basis. In Melton SC v Shabani[52] Justice Morris P further stated that he thought the same principle should apply if contempt proceedings have been withdrawn as a result of the alleged contempt being addressed.
In Dental Practice Board of Victoria v Varnavides[53] Justice Morris, P ordered the respondent, who had been found guilty of contempt of the Tribunal, to pay the costs of the applicant on a party/party basis on County Court Scale D.
In my view, the circumstances in this case do support the exercise of the Tribunal's discretion to award costs against the Respondent. I am satisfied that the Respondent was entirely responsible for the Applicant needing to institute contempt proceedings. Furthermore, the Respondent chose to conduct his defence in a manner which displayed contempt for the CAV investigative process and evidence.
The only question which remains is the basis for awarding such costs.
There has been no application for an award of costs on an indemnity basis, although such an award is not uncommon in contempt proceedings.[54]
The power to award costs in VCAT effectively incorporates the rules applying in the County Court, which give power to make an order for costs on a 'standard basis' or on an 'indemnity basis'.[55]
Accordingly, it is proposed that an order for costs be awarded in favour of CAV on a standard basis, such costs to be determined by the Costs Court in default of agreement.
The Respondent must be given an opportunity to make any further submissions in relation to the proposed costs order. Accordingly, the costs order will be stayed until 20 February 2017, to permit the Respondent to make any written submissions.
[2]Director of Consumer Affairs Victoria v Talia (Occupational and Business Regulation) [2010] VCAT 1107 Statement of Reasons of Senior Member Billings [4].
[97]
[3] The name of the licensed corporate agent cited in the charges should read 'Bonds Real Estate Sales Pty Ltd' ACN 050139305 trading as Stockdale & Leggo Doncaster-Templestowe. Refer Exhibit G.
[98]
[4] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; Exhibit A - Affidavit 2 August 2016.
[99]
[5] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; Exhibit B - Affidavit 22 June 2016.
[100]
[6] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; Exhibit C - Affidavit 3 August 2016.
[101]
[7] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; Exhibit D - Affidavit 4 August 2016.
[102]
[8] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; Exhibit E - Affidavit 5 August 2016.
[103]
[9] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; Exhibit G - Affidavit 5 August 2016.
[104]
[10] Compliance and Enforcement Officer in Enforcement and Legal Services Branch CAV; TB 121-139, Affidavit 4 August 2016;
[46] Which is to be considered independently of any discount given for a plea of guilty: see R v Duncan[1998] 3 VR 208 at 215 per Callaway JA; Neal v The Queen[1982] HCA 55; (1982) 149 CLR 305 at 315.
[49] See Smee(1985) 19 A Crim R 262 (CCA QLD) - where the offender's property was destroyed by a hailstorm and his wife had a stroke after he had committed the offence of obtaining by false pretences, the Qld Ct of C A considered that a reduced sentence was justified.
Tribunal found respondent guilty of contravening s 12 of the Estate Agents Act 1980 and guilty of failing to comply with the 25 June 2010 Tribunal Order (s 133(1) VCAT Act); found respondent guilty of contempt pursuant to s 137(1)(f) VCAT Act; imposed a fine of $10,000 (s 137(5)(a)); ordered the respondent to pay Applicant's costs on the standard basis, with the costs order stayed pending any written submissions by 20 February 2017.
On 25 June 2010 by order of the Victorian Civil and Administrative Tribunal you became permanently ineligible to hold a real estate license or to be an agent's representative, but between 21 November 2015 and 12 March 2016 you did not comply with an order of the Tribunal in that you were present and participating at the auction for 98 Bellavue Avenue, Doncaster East on 21 November 2015, in that you were present and interacting with members of the public at house inspections for 13 Valentine Street, Bulleen on 5 March 2016 and 953 Doncaster Road, Doncaster on 12 March 2016, that you were present and participating at the auction for 13 Valentine Street, Bulleen on 5 March 2016 and that you were present and participating at the auction on 953 Doncaster Road, Doncaster on 12 March 2016, thereby contravening section 133 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic);
On 25 June 2010 by order of the Victorian Civil and Administrative Tribunal you became permanently ineligible to hold a real estate license or to be an agent's representative, but between 18 December 2014 and 12 March 2016 ("period") you did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice by participating in the business activities of Bond Real Estate Pty Ltd A.C.N. 050 139 305 during the period, in contravention of section 137 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic);
On 21 November 2015 at East Doncaster between 12 pm and 2 pm you held yourself out to be an agent's representative and did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice by being present and participating in the auction of 98 Bellavue Avenue Doncaster East in contravention of section 137 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic);
On 5 March 2016 at Bulleen between 11.30 am and 12 pm you held yourself out to be an agent's representative and did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice by being present and interacting with members of the public at a house inspection for 13 Valentine Street Bulleen on 5 March 2016 and being present and participating in the auction of 13 Valentine Street, Bulleen on 5 March 2016 in contravention of section 137 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); and
On 12 March 2016 at Doncaster between 11.30 am and 12.15 pm you held yourself out to be an agent's representative and did thereby conduct yourself in a manner that had a real tendency to interfere with the administration of justice by being present and interacting with members of the public at a house inspection for 953 Doncaster Road, Doncaster on 12 March 2016 and being present and participating in the auction of 953 Doncaster Road Doncaster, on 12 March 2016 in contravention of section 137 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
In summary, the charges arise out of alleged conduct of the Respondent between 18 December 2014 and 12 March 2016; and on 21 November 2015, 5 March 2016, and 12 March 2016 by which the Respondent acted or held himself out to be an estate agent or agent's representative in contravention of the 2010 Tribunal Order and s 12 of the EA Act.
In addition, the Respondent held a number of personal accounts and a corporate card under the name of BRE.
(h) At the commencement of the auction, the officers observed and photographed the Respondent standing alongside the auctioneer at the front of the property and appeared to be assisting by holding a clip board ready to record the bids;
(i) The auctioneer referred to 'John Talia' by name together with other named agents;
(j) The auctioneer was heard to place a 'vendor bid' after which the auctioneer and the Respondent were both seen to walk inside the house, returning approximately 5 minutes later; the auctioneer placed a further vendor bid and then the property was passed in;
(k) After each vendor bid, the Respondent was observed to make notes;
(l) At the conclusion of the auction, the auctioneer was heard to invite the crowd to speak to the agents about the property and said words to the effect: 'Danielle, Tom and John are here to help you';[20]
(m) During both conversations with the Respondent, the officers were not directed to speak to another agent or to direct any future enquiries to another agent; and
(n) The officers observed the Respondent in conversation with other agents and attendees.
Under cross examination, Mr Sherry agreed that:
(a) They first approached the Respondent;
(b) They did not see the Respondent inside the house with the auctioneer;
(c) He did not overhear conversations between the Respondent and others; and
(d) He did not see the Respondent holding any brochures.
Under cross examination, Ms Leveleky said that:
(a) She observed the Respondent approach and speak to a plain clothed attendee;
(b) She observed the Respondent next to the auctioneer and make notes when the vendor bids were made; and
(c) She observed the Respondent accompany the Auctioneer go inside the house, during the auction, to confer with the vendor.
(l) The property was passed in and at the completion of the auction, the Respondent was observed to approach the highest bidder and after a short conversation accompanied the highest bidder and the auctioneer into the house to negotiate with the vendor; and
(m) During their conversation with the Respondent, the officers were not directed to speak to another agent or advised to direct any future enquiries to another agent.
Under cross examination, the officers agreed that:
(a) They did not see the Respondent inside the house with the auctioneer;
(b) They did not overhear conversations between the Respondent and others;
(c) They did not see what the Respondent wrote down other than to observe him to make notes when bids were taken;
(d) They did not see the Respondent again after entering the house after the auction.
Mr Luttick also confirmed that:
(a) The accounts of the BRE show unsecured loans made interest-free by the Respondent, which have been partially repaid;
(b) He was aware that the Respondent had made loans to the business prior to being imprisoned, although he could not recall any details about such loans or the timing of when they were made;
(c) He has not cited and has no records of any loan agreement between BRE and the Respondent;
(d) He has not cited any personal or company bank statements in relation to repayment of the loans;
(e) He was never advised that the Respondent had received any commissions from the estate agency and is only aware of the Respondent having been paid a wage and previously receiving a New Start Allowance;
(f) He has not conducted an audit and cannot verify the accuracy of any material; and
(g) The accounting records which he has prepared balances in terms of the BRE General Ledger and bank statements.
The Respondent gave evidence as to his conviction and sentence and eventual release from prison in February 2010. He described his time in custody as personally traumatic, socially confronting and he largely kept to himself. Upon release he described a major readjustment trying to look after his ill mother as well as find new employment. He applied unsuccessfully for multiple sales positions, including retail and car sales, but found his age and criminal record a major obstacle.
In 2012, he obtained temporary employment in a cafe for about six months. He was supported by his savings, payments from his mother and his wife, who was still working. In about June 2012 he commenced to receive the New Start Allowance, for about six months.
In early 2012, his marriage broke down and the matrimonial home was sold in July 2012.
The business of BRE had suffered badly following his conviction and sentence. Accordingly from his share of the sale of the matrimonial home, he contributed $40,000 to provide working capital for the business, which increased the outstanding loan balance in his favour to $148,791. In the meantime he confirmed that he has drawn down about $118,000, reducing the outstanding loan to just over $30,000.
In early 2013, when he was still unable to find employment, his daughter suggested that he work in her estate agency business, performing office duties.
He initially worked at the business 2-4 hours per day, five days per week, but not weekends. He said that he took some time to readjust and sometimes did not go to work. His hours progressively increased to about six hours per day for five days per week. His duties included:
(a) assisting in the office: filing, photocopying, cleaning;
(b) assisting staff, such as preparing flyers and folding up brochures;
(c) delivering material to letter boxes;
(d) keeping front window and photographs up to date; and
(e) telephoning tradespeople for the rental department.
He did not:
(a) take money from anyone;
(b) sign any receipts for rentals or sales; or
(c) sign any documentation
He did not work weekends except for the three occasions when he was observed, when he was asked to fill in for a staff member, who were agent's representatives. He was also instructed by his daughter to report on what happened at each of these auctions, with a view to improving staff performance. He made notes and provided them to Ms Talia and he believes that she had meetings with her staff. I note that Ms Talia was observed by CAV officers to also attend each of the auctions at which the Respondent was observed.[22]
He did not attend either of the two auctions which were conducted during the same period and says that he has not attended any other auction or open for inspection days.
He admitted that he had remained a signatory on the following business accounts for about five years prior to commencing work again in 2013:
(a) the General Account, being the main business office account, which required one signatory;
(b) the Trust Account, which required two signatories; and
(c) the Rentals and Maintenance Account, which required one signatory.
The other signatories on these accounts were Ms Talia, his son Michael, and his former wife Susan Talia, all of whom were licensed estate agents.
Ms Talia has now terminated his employment with the estate agency. He is now unemployed and does not know how he will gain employment.
He denies ever performing the work of a licensed estate agent or agent's representative. In particular:
(a) He has not acted as a sales representative and has not been involved in the management of any sale;
(b) He has not received any commissions;
(c) He has not been advertised as a contact for any vendor or landlord;
(d) He has not issued or signed a trust account receipt;
(e) His name has not been published in any newspaper or on the Internet as the person responsible for any property;
(f) He did not take any enquiries from anyone about properties;
(g) He did not take any prospective buyers to properties;
(h) He did not negotiate with any vendors or landlords to take any offers or negotiate rentals;
(i) He did not act as a salesperson on any property managed, as charged;
(j) The CAV officers could not say where he went after the auctions which they observed as he said he went home and not back to the office;
(k) There have not been any files produced which show his name connected with any sale or rental; and
(l) The officers did not overhear any conversation which he had with anyone at the auctions.
Under cross-examination:
(a) He confirmed that he had initially worked as an agent's representative for Ray White real estate from March 1988 until about 2004 when a franchise arrangement was entered into with Stockdale & Leggo;[23]
(b) He agreed that he had handed out an old business card to the CAV officers because 'I did not want to embarrass myself or the company by refusing ";
(c) He agreed that the auctioneer referred to him by name, despite being told not to. 'He must have forgotten';
(d) He agreed that he had been wearing a company tie but he did not wear a name badge as did other agents and representatives;
(e) He agreed that he did not direct the CAV officers to other agents because "I did not want to embarrass myself or the company";
(f) He agreed that he was holding the auction bell at one of the auctions, but explained this had been given to him by the auctioneer while he spoke to someone;
(g) He did not manage any files but would do filing and 'maintain' files by putting material in alphabetical order;
(h) He confirmed that his total income recorded in his income tax returns for 2013 to 2016 inclusive ranged from $18,050 to $21,081. Since about March 2016 he has been living in rented accommodation for about $1647 per month;
(i) He agreed that he was represented by senior Counsel for the judgement before the Tribunal in May 2010 and subsequently received a copy of the judgement, but did not receive advice as to what it meant;
(j) He has been removed as a signatory from the business bank accounts since his employment was recently terminated;
(k) He became a signatory for the operating account for the estate agency in 2005 but when released from prison he said that he was not thinking about whether he should continue to be a signatory or not;
(l) He could not explain why he apparently became a signatory on the statutory trust account for the estate agency business on 8 March 2011;[24]
(m) He is recorded as a signatory on the business cash management account from 8 March 2011 but said he did not understand that he could not be a signatory as he was merely paying creditors and was not acting as an agent's representative; and
(n) His employment was terminated in mid-December 2016, following a meeting between Ms Talia and her solicitor, but he does not have a termination letter.
The Respondent was asked: why did he not call any other agent or auctioneer to give evidence of what he did in the business or to confirm his role at the auctions? The Respondent replied to the effect that he chose not to call anyone, although they had offered. He did not think they were needed because the CAV officers did not do their job properly.
(6) If a person is committed to prison for a term, the Tribunal may order his or her discharge before the end of the term.
(7) The Tribunal may accept an apology for a contempt and may remit any punishment for it either wholly or in part.
...
(9) A fine imposed on a person under this section may be enforced as if it were a fine imposed on that person by the Supreme Court on finding them guilty of an offence.
(10) A power conferred on the Tribunal by this section is exercisable only by a judicial member.
In addition, no credible explanation was given by the Respondent for his failure to call any employee of BRE, either agent, agent's representative or administrative employee or auctioneer. Accordingly, I draw the only reasonable conclusion from such failure that any evidence of any such persons would not have assisted the Respondent.
I will now deal with the specific evidence relied upon by CAV in relation to each of the auctions attended by CAV officers.
(iii) refer the CAV officers to a licensed agent or agent's representative.
In relation to both auctions in March 2016, as detailed above, I am satisfied beyond reasonable doubt, upon the evidence before the Tribunal, that the Respondent held himself out to the public:
(a) to be an employee of the Stockdale & Leggo,
(b) to be actively involved in both assisting and being ready to assist with the conduct of the open for inspection and subsequent auction, in the same manner as would be expected of a licensed agent or agent's representative;
(c) to be actively involved in answering questions and providing other information relevant for a prospective purchaser in the same manner as would be expected of a licensed agent or agent's representative; and
(d) to be actively involved in engaging with other agents of Stockdale & Leggo and assisting the auctioneer.
I reject the Respondent's explanation that he did not wish to embarrass the company or himself by refusing to give a business card when asked or referring the CAV officers to another agent, rather than answering their questions.
I am satisfied beyond reasonable doubt that the Respondent has contravened s 12 of the EA Act by reason that:
(a) First, he engaged directly in the management of the business of BRE, a licensed estate agent by:
Providing working capital;
Being an authorised signatory and performing the functions of a signatory of three business accounts of BRE, including its statutory trust account, all subsequent to the 2010 Tribunal Orders; and
Utilising a credit card issued to him by BRE;
(b) Secondly, he was paid as an employee of BRE for performing duties which included the duties of an estate agent or agent's representative;
(c) Thirdly, by holding himself out to the public as an employee of BRE, trading as Stockdale & Leggo, in association with other licensed agents and/or agents' representatives; and
(d) Fourthly, by holding himself out to the public as ready willing and able to perform the functions of a licensed agent or agent's representative and in fact performing some of those functions.
(b) the absence of previous convictions[42] but in the absence of statutory directions to the contrary[43], a prior criminal record should not operate to increase the sentence beyond limits set by an appropriate response to the current offence;[44]
(c) mitigating factors, including a plea of guilty[45] and remorse,[46] although the weight to be given to remorse (including an apology) may depend on the time at which it is manifested, as well as whether it came from direct evidence from the offender;[47] and
(d) other factors which alone cannot be relied upon to escape punishment but may attract some leniency, including the advancing age of an offender;[48] a personal crisis occurring after the commission of offences;[49] and hardship occasioned by the fact that imprisonment of a parent will effectively deprive the children of parental care.[50]
In my view there are no matters which have been brought to the attention of the Tribunal which constitute a mitigating factor in terms of any of the above considerations.
this application, s 139 of the VCAT Act is also relevant:
The Respondent remains subject to the 2010 Tribunal Orders and in the event that he is again investigated and charged with contravening s 12 of the EA Act he may be again brought before the Tribunal on a charge of contempt.