Curcio v BLA [2001] VCAT 423

(a) participate in the preparation of any applications for finance from prospective purchasers; or

(b) act as the officer in effective control of any estate agency business whether that business is carried on by a licensed corporation or a licensed individual.

2. Any application for costs should be in writing and filed with the Tribunal and served on the other party within 14 days of the date of this decision.

For the Applicant: Mrs J Morrish, QC and Mr M Osborne of Counsel, instructed by Mason Sier Turnbull, Solicitors.

For the Respondent: Mr G J C Silbert of Counsel, instructed by Mr S Devlin, Solicitor, Consumer and Business Affairs Victoria

1. By "Application For Review of Decision" dated 7 July 2000 Paul Curcio ("the Applicant") applied to have a decision of the Business Licensing Authority ("the Authority") reviewed.

2. The decision the subject of the proceeding was a decision made by the Authority on 30 June 2000 under section 31C of the Estate Agents Act 1980 ("the Act") to refuse the Applicant's application under that section for permission to hold an estate agent's licence. The decision was in the following terms -

"The Authority comprised of Ms Smith after considering Mr Curcio's application and a report prepared on behalf of the Director, Office of Fair Trading and Business Affairs HEREBY DETERMINES_,_ pursuant to section 31C of the Act, to refuse to give its permission for Mr Curcio to hold an estate agent's licence as it is not satisfied that it is not contrary to the public interest for it to do so".

3. The Authority sent a copy of the decision to the Applicant's solicitors by letter dated 30 June 2000. It was common ground that the references in the letter to section 31B of the Act ought be references to section 31C. That letter was, in part, in the following terms-

Application Pursuant to Section 31 C of the Estate Agents Act 1980: Mr Paul Curcio

In April 1999 you lodged an application pursuant to section 31B(2) of the Estate Agents Act 1980 (the Act) for permission for your client, Mr Paul Curcio, to continue to hold an estate agent's licence.

Your client's application acknowledges that it was necessitated by a finding of guilt made against him on the 25 February 1999 by the County Court of Victoria at Melbourne of four counts of attempt to obtain a financial advantage by deception and one count of obtain a financial advantage by deception.

Section 3IB(3) of the Act provides that upon receipt of an application pursuant to section 3IB(2) of the Act:

`The Authority may give its permission if it is satisfied that it is not

contrary to the public interest for it to do so'.

On 31 May 1999 the former Registrar wrote to you enclosing a report from the former Office of Fair Trading and Business Affairs (now called Consumer and Business Affairs Victoria) which recommended against your client being given permission to continue to be licensed as an estate agent. The Authority indicated it had serious concerns about whether it would be contrary to the public interest to give permission to your client. Your client's submissions were invited in relation to a number of specific matters and whether it would be contrary to the public interest for him to be given permission.

On 29 December 1999 the Authority received submissions made on behalf of your client and his statutory declaration dated 24 December 1999.

Following consideration of these submissions, on 21 January 2000 the Authority sought further information from the major Fraud Group, Victoria Police. Upon receipt of a report from Detective Sergeant D R Pearce on 22 April 2000, your client was invited to respond to the matters raised therein. This invitation was made on 23 May 2000.

Following receipt of your submissions dated 20 June 2000 on your client's behalf, the Authority has today given further consideration to his application under section 3IB of the Act. I advise that the Authority has refused to give its permission for your client to continue to hold an estate agent's licence as an employee. I enclose a copy of the Authority's decision for your reference.

Having regard to the provisions of section 46 of the Victorian Civil and Administrative Tribunal Act 1998, (copy enclosed), the statutory ground on which the decision is based: -

* section 3IB(3) of the Act".

4. Sections 22 and 31C of the Act are, in part, in the following terms-

"22. Automatic cancellation of licence on bankruptcy etc.

(2) A person's licence as an estate agent is automatically cancelled 30 days after the person -

(a) is convicted of, or has found proven against him or her, any offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for 3 months or more; or

(3) If a person whose licence would otherwise be cancelled by sub-section (2) applies for permission under section 31A or 31C within the 30 day period referred to in that sub-section, the person's licence is only automatically cancelled if the application is withdrawn or is refused by the Authority.

31 C. Person with criminal record may be allowed limited right to hold licence etc.

(1) This section applies to a person who has, within the last 10 years in Australia or elsewhere, been convicted or had found proven against him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by imprisonment for 3 months or more.

(2) The person may apply to the Authority for permission to hold an estate agent's licence or to be employed as an agent's representative.

(3) The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

5. The Applicant's application to the Authority was necessitated by criminal proceedings heard by Judge Hassett in the County Court at Melbourne on 25 February 1999 ("the Court proceedings") wherein the Applicant pleaded guilty to 4 counts of attempt to obtain a financial advantage by deception and 1 count of obtaining a financial advantage by deception. The 5 counts in the Presentment were in the following terms -

Count 1 "Paul Curcio at Melbourne in the said State between the 1st day of October 1993 and the 12th day of November 1993, attempted to dishonestly obtain for Thomas KARADIMOS and Sharon Ann KARADIMOS a financial advantage, namely the provision of a home loan facility from the Advance Bank Australia Limited in the sum of $142,500.00, by deception namely by falsely representing that:

(a) the particulars contained in the application for home loan dated l/10/1993 were true and correct and;

(b) the home loan applicants had savings of $3,821.59 in funds available in a business account to contribute to the purchase price of a house and land package situated at 61 Meadowview Court, Ferntree Gully.

Count 2_: AND the Director of Public Prosecutions further presents that PAUL CURCIO at Melbourne in the said State between the 27th day of April 1994 and the 16th day of May 1994, attempted to dishonestly obtain for Jason Neil SWANN and Colleen Shannon TREDINNICK a financial advantage, namely the provision of a home loan facility from the ANZ Banking Group Limited in the sum of $111,000.00, by deception namely by falsely representing that:_

(a) the home loan applicants had contributed $7,000.00 to the purchase price of a house and land package situated at Lot 21 Lehmann Place, Croydon;

(b) the particulars contained in the application for home loan dated 27/4/1994 were true and correct;

(c) the contract of sale of real estate dated 24/2/1994 provided to the ANZ in support of the home loan application accurately reflected the purchase price of the said land and comprised all the terms, conditions and rebates affecting the said contract;

(d) a letter dated 5/4/1994 confirming savings of Jason SWANN and Colleen TREDINNICK to be allocated to the purchase of the house and land package were true and correct; and

(e) the employment reference from Austral Building and Design certifying the employment and income for Colleen TREDINNICK was true and correct.

Count 3_: AND the Director of Public Prosecutions further presents that PAUL CURCIO at Melbourne in the said State between the 1st day of May 1994 and the 26th day of May 1994, attempted to dishonestly obtain for Brittany Maree SANDERS a financial advantage, namely the provision of a home loan facility from the ANZ Banking Group Limited in the sum of $116,500.00, by deception namely by falsely representing that:_

(a) the home loan applicant had contributed $6,700.00 to the purchase price of a house and land package situated at Lot 7 Greenview Court, Epping;

(b) the particulars contained in the application for home loan dated 1/5/1994 were true and correct;

(c) the contract of sale of real estate dated 7/2/1994 provided to the ANZ in support of the home loan application accurately reflected the purchase price of the said land and comprised all the terms, conditions and rebates affecting the said contract;

(d) a letter dated 17/2/1994 confirming savings of Brittany SANDERS to be allocated to the purchase of the house and land package was true and correct; and

(e) the employment reference from Lightbeat Entertainment certifying the employment and income for Brittany SANDERS was true and correct.

Count 4_: AND the Director of Public Prosecutions further presents that PAUL CURCIO at Melbourne between the 7th day of May 1994 and the 20th day of May 1994, attempted to dishonestly obtain for Thomas KARADIMOS and Sharon Ann KARADIMOS a financial advantage, namely the provision of a home loan facility from the ANZ Banking Group Limited in the sum of $141,000.00 by deception namely by falsely representing that:_

(a) the particulars contained in the application for home loan dated 7/5/1994 were true and correct;

(b) the contract of sale of real estate dated 14/5/1993 provided to the ANZ in support of the home loan application accurately reflected the purchase price of the said land and comprised all the terms, conditions and rebates affecting the said contract; and

(c) the employment reference from Austral Building and Design certifying the employment and income for Thomas KARADIMOS was true and correct.

Count 5_: AND the Director of Public Prosecutions further presents that PAUL CURCIO at Melbourne on or about the 12th day of May 1994, dishonestly obtained for Brett Ashley ROBERTS and Vanessa Anne HALL a financial advantage, namely the provision of a home loan facility from the ANZ Banking Group Limited in the sum of $119,400.00 by deception namely by falsely representing that:_

(a) the particulars contained in the application for home loan dated 27/4/1994 were true and correct;

(b) the contract of sale of real estate dated 1/2/1994 provided to the ANZ in support of the home loan application accurately reflected the purchase price of the said land and comprised all the terms, conditions and rebates affecting the said contract; and

(c) the employment reference from Accent Floors certifying the employment and income for Brett ROBERTS was true and correct".

6. It is clear that the circumstances of the offences the subject of the sentences imposed are a relevant matter for the Tribunal to consider in proceedings of this sort. See Cichello v Estate Agents Licensing Authority (1998) 13 VAR 177. In that regard, I have had the considerable benefit of being provided with a copy of the transcript of the Court proceedings. Whilst I consider both the plea and the sentence to be highly relevant, the transcript of the sentence warrants reproduction. It is, in part, as follows-

"HIS HONOUR: Paul Curcio, you are before me to be sentenced in respect of five offences, being four of attempting to obtain a financial advantage by deception and one of obtaining a financial advantage of deception. The offences were committed back in late 1993 so far as Count 1 is concerned and in April/May, 1 think, of 1994 so far as the others are concerned.

You were at that stage involved as an estate agent in the selling of land and package deals and the like, and it was in that capacity that you became party to the provision to financial institutions of misleading and false applications for finance calculated to obtain finance for potential purchases which would not be likely to have been granted had the true position been revealed to the financial institutions. In the event, application were withdrawn in the circumstances which have been outlined today,

Your part in it was not only the provision of the applications, knowing them to be misleading and mistaken, but you went beyond that by way of actually assisting with the falsification of the amount apparently available to one of the potential borrowers, being aware that there were arrangements for a builder's rebate which was not being disclosed in the contractual documents submitted to the lenders or potential lenders, in the provision of fa1se documentation by way of certification of employment and the like for some of the potential borrowers. In those circumstances, you played a quite active role in the commission of the offences.

You have no prior convictions and there is no suggestion that you have offended in any other way since that time. You are now involved in a different sort of business in the real estate area; you are no longer involved in that particular type of activity. 1 am satisfied that you have learned your lesson and that you are almost certainly not going to offend in the future.

The other matter which 1 may not have mentioned is that you did plead guilty at the committal proceedings to four of these matters and reserved your plea on the other, and you ultimately pleaded guilty to that matter as well. That is obviously a factor to be taken into account, along with the delay which has now occurred in having these matters finalised.

In all of those circumstances, without convicting you, I order you to pay a fine of $2,000. In the ordinary course of events, that fine would have to be paid within a month, and I assume that no further stay than that would be required?".

7. Mrs Morrish informed me that there was a preliminary issue to be determined, and that it fell into 2 categories.

8. The first category related to a document that contained an earlier assertion of unethical conduct by the Applicant unrelated to the matters the subject of the Court proceedings. This involved an allegation that the Applicant had suggested that a false employment record be constructed in relation to a finance application. I was informed that this allegation was "dismissed" in the sense that no further action was taken. It was put by Mrs Morrish that this allegation was inadmissible in this proceeding, and there was no power in the Tribunal in this proceeding to embark upon a general inquiry of old matters.

9. Mrs Morrish informed me that this allegation had not formed part of the Authority's decision. Further, there was only one document that the Tribunal had before it in relation to this matter, and that I only had "part of the picture". The document was in hearsay form, and was no more than an unproven assertion. No inquiry had been launched seeking to take any action against the Applicant under section 25 of the Act in relation to the matter. The former Estate Agents Board and the Authority had known of the existence of this complaint for over 9 years and had abandoned the matter. Mrs Morrish further submitted that the document had no probative value, had a highly prejudicial effect, and as a matter of discretion and as a matter of fairness I ought exclude it.

10. Mr Silbert submitted that it was a matter of the weight to be given to the document, conceding that "the use to be made of it is marginal". He contended that the only other use that may possibly be made of the document was in cross-examination. In this context it was put that it may support an assertion that there was knowledge in the Applicant of "this sort of conduct" in 1991.

11. Having heard the submissions of the parties in relation to the document I determined to defer the question of admissibility until all the evidence was before me on that point. I observed that the options at that time would include determining that the document was inadmissible and totally disregarding it, or that it had so little or no weight that it played no part in my decision making process, or that I considered the document to be relevant and significant. I have found on the basis of all the evidence before me that the document has no weight. In relation to the specific allegation contained in the document, which the document suggests was denied by the Applicant at the time, its possible relevance in my view was most likely to be as to whether the Applicant was aware at that time (i.e. 1991) of his obligations in relation to such conduct. This became somewhat academic after the Applicant's evidence to the Tribunal that, in relation to counts 1 to 4 in the Court proceedings, he thought he was doing the wrong thing at the time he committed the offences.

12. The second category concerned documents objected to by Mrs Morrish, such documents having been filed with the Tribunal by the Authority under section 49 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), namely document numbered `2' in so far as the document related to withdrawn charges, and documents 9, 10, 21, 22, 25, 26, 27, 28, and 29. Mrs Morrish contended that some of these documents were "in part admissible", however the objection related to the inclusion of evidence related to categories of uncharged acts, opinion evidence and "hearsay upon hearsay". Mrs Morrish submitted that the fact which enlivened the jurisdiction of the Tribunal in this proceeding related to findings that certain criminal charges were found proven against the Applicant. The Court proceedings had taken place further to the original 18 charges laid against the Applicant. Copies of the original charges were before me as part of the section 49 material. I was informed that the criminal charges had proceeded by way of hand up brief. The Crown had agreed to withdraw certain of the charges, some of which were in the alternative. The Presentment filed in the County Court contained 5 counts only, to which the Applicant on arraignment pleaded guilty. It was put that the Crown, being armed with the entirety of the material that the informant had gathered, drew a Presentment which the Crown relied upon as fairly representing the Crown's position in relation to the allegations.

13. Mrs Morrish put that the Applicant's plea of guilty on arraignment was no more than an admission that the elements of the offence were proved and the essential facts which support those elements were established. It was not an admission that everything that is contained in the prosecution's brief was true.

14. Mrs Morrish contended that in this case the learned sentencing Judge had asked for the assistance of the Crown to provide an opening of the facts. What was then done by the prosecutor was to "inform His Honour which facts in the opinion of the experienced prosecutor applying his own mind to the evidence which was admissible what the Crown could and would prove".

15. Mrs Morrish submitted that the learned sentencing judge "clearly heard and had ... the hand up brief before him and had the benefit of an experienced prosecutor's interpretation or the submission on that material and had the plea of guilty to the offences by Mr Curcio and in the process of hearing the plea gave an indication as to what His Honour considered to be an appropriate disposition and mindful of the fact that any disposition had further ramifications beyond sentencing considerations". Further, that what brought the matter before the Tribunal was those findings of fact as found by the sentencing judge, the sentence imposed, and the factual basis for that sentence.

16. Mrs Morrish submitted in relation to document 9 that the informant in relation to the police charges had provided further information to the Authority, providing summaries and a report which, she submitted, in effect was his interpretation of statements of witnesses which were not before me. That material provided by the informant contained information in relation to uncharged acts, the informant's opinion and interpretation of the facts, and in effect was "hearsay upon hearsay". The informant was not an "eye witness" to any of the allegation of dishonesty. The makers of the witness statements were not to be called by the Authority in these proceedings. Mrs Morrish submitted that what the Authority wanted was for me to come to conclusions of fact based upon evidence which had no weight. It was put that if this evidence was so important, that importance was undermined by the fact that the Authority did not want to call the primary evidence. If it was so important it must be a central issue, then why was the Authority not calling the evidence. Why could the Applicant not have exactly the same rights to cross-examine as the Authority did with the Applicant's witnesses, and that fairness dictated as much.

17. It was contended by Mrs Morrish that the Prosecutor had not objected to the Judge's stated intended course as to penalty. Furthermore, the Prosecutor when at the end of defence counsel's submissions, being invited to do so, declined to put any further matters. No appeal was lodged by the Crown against the sentence. Mrs Morrish submitted that by trying to admit evidence of opinion and summaries of what was contained in the rest of the brief, what in effect the Authority was attempting to do was to "rehash the findings of fact ... with the informant putting his own interpretation or weight to those facts". Mrs Morrish submitted that it was "totally inappropriate for the Respondent to rely upon hearsay to prove its assertions". Further, that these matters did not go to a question of weight but to admissibility. They also went to fairness, and their admission would be to deny natural justice. If the Authority submitted that there might have been more to the 5 offences that was not relevant to sentencing but was relevant to the licence issue, then it would be a question of "doing it in the proper way".

18. Mrs Morrish submitted that this proceeding ought not be used to conduct a general inquiry under section 25 of the Act about uncharged acts. She submitted that there ought be no material before me in relation to the 13 charges which were not proceeded with, allowing for alternative counts.

19. As to the hearsay nature of the material, Mrs Morrish submitted that notwithstanding that the Tribunal was not bound by the rules of evidence, those rules were not irrelevant, and ought only be dispensed with for good reason. In this context I was referred to A and B v Director of Family Services 20 Family Law Reports 549 at pages 553 to 554.

20. Mr Silbert referred me to the provisions of section 98(1)(b) of the VCAT Act and submitted that the "logical consequence" of Mrs Morrish's submission was that the Authority would have to call in this proceeding the 22 witnesses named in the Presentment and that "can't be". He submitted further that the policy consideration was that these proceedings were conducted with informality. The Tribunal was not bound by the rules of evidence and the proceedings were to be conducted expeditiously with matters of relevance being admitted and due weight being attached by the Tribunal. He further submitted that "it makes a nonsense" of the Act to assert that the Authority was obliged to call all the witnesses. He submitted that there was nothing that impinged upon the rules of natural justice in relation to the informant submitting a report to the Authority and that going into the material supplied under section 49 of the VCAT Act. He submitted that the Tribunal was engaging in an inquisitorial exercise to look at the public interest and whether the Applicant should be licensed or not. The Authority's case was that the plea in the County Court "was very understated". He submitted that there was "a high degree of dishonesty exhibited in the 5 counts on the Presentment", and the Authority intended to explore those.

21. Mr Silbert further submitted that I was not bound by what was put by way of opening on the plea or adverted to in the sentencing remarks in the Court proceedings. He submitted that the dishonesty that the Authority asserted was far wider than that, and of far more relevance to the task that the Tribunal was engaged in. It was a matter for the Tribunal to place its own characterisation on the nature of the offences.

22. Mr Silbert referred me to a passage on page 1 of the sentencing remarks where His Honour stated that the Applicant had played " a quite active role" in the commission of the offences, and submitted that it was "not helpful to come here and analyse the sentencing judges remarks as if this Tribunal is bound by them", but even if the Tribunal did that, the characterisation of the sentencing judge was that the Applicant had played a quite active role in the commission of the offences. He contended that it had to be relevant for this Tribunal to look at the overall material when assessing public interest in licensing the Applicant to carry on business as a real estate agent. He referred me to Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247, and particularly certain passages at page 256.

23. He submitted that document 9 of the section 49 material was relevant as being the investigator's summary of the police brief, and relevant as to the nature of the investigation. Mr Silbert informed me that he thought that very little in this material was not hearsay, as it was the investigator's overview of the investigation.

24. During the hearing I ruled as inadmissible document 2 of the section 49 material, being copies of the original charges laid by the police at first instance which were thereafter distilled into the 5 charges contained in the Presentment to which the Applicant pleaded guilty in the County Court. In my view, the Presentment was the appropriate document for me to have regard in relation to the matters the subject of the Court proceedings. In relation to the admissibility issues in relation to the "uncharged acts" no proceeding has been brought under section 25 of the Act in relation to those matters. I re-state the view I expressed during the hearing, namely that one of the difficulties in relation to those matters was that whilst the Tribunal had something of an inquisitorial role, I did not consider it appropriate that proceedings under section 31C of the Act became a "de facto" inquiry under section 25 of the Act. Again, as I stated in the hearing, that view was in part based upon the consequence that to do so would very significantly limit the penalty options otherwise available under section 25 of the Act if conduct warranting action of a disciplinary nature was established. I further consider that as a matter of procedure such matters ought proceed by way of proper notice to an estate agent with particulars in support being detailed and in circumstances where the case is put by the informant before the estate agent is called upon to answer the allegations.

25. I also ruled as inadmissible document 9 of the section 49 material, being the police summary. The material substantially consisted of statements made by the police officer further to matters that were told to the police officer by others in relation to these offences. Its admissibility was objected to by Mr Morrish for reasons to which I have earlier referred. I accepted the thrust of those submissions.

26. In so ruling, I found the decision of A and B v Director of Family Services, to which I was referred by Mrs Morrish to be of considerable assistance. I particularly refer to the following passage at page 553 of the decision -

" Section 93(3) of the Children's Services Act 1986 (ACT) provides, in respect of care proceedings -

The Court is not bound by the rules of evidence and may inform itself in any manner it thinks fit.

This provision is not uncommon in relation to administrative proceedings and other non-curial determinations including arbitrations. However, it should be recognised that such provisions do not render the rules of evidence irrelevant. They should still be applied unless, for sound reason, their application is dispensed with.

In these proceedings, it seems to have been assumed that the rules of evidence relating to both hearsay and to expert evidence had no application.

The proper approach to the application of the rules of evidence in the face of such a provision was considered by Lockhart J in Pearce v Button [1986] FCA 51; (1986) 65 ALR 83 at 97; [1986] FCA 51; 8 FCR 408 8 FCR 408 at 422. His Honour said:

... a judge should be slow to invoke it [a power to dispense with compliance with rules of evidence] where there is a real dispute about matters which go to the heart of the case.

The High Court has recently re-affirmed the underlying justification for the hearsay rule in Bannon v R [1995] HCA 27; (1995) 132 ALR 87; 70 ALJR 25. Although that decision considered the place of the hearsay rule in a criminal trial, the same principles are applicable to civil hearings".

27. As previously stated, I have had the considerable advantage of being provided with the transcript of the plea and the sentencing remarks. I was satisfied that the prejudicial nature of document 9 of the section 49 material outweighed its probative value.

28. As I indicated during the course of the hearing, difficulties arise in cases of this sort where there has been a prior criminal proceeding, whether it has been a contested trial resulting in a finding of guilt or whether the criminal proceeding has proceeded by way of a plea. Where such a finding causes an application to have to be made to the Tribunal, it is not, in my view either appropriate or the role of this Tribunal to in some way undertake a re-trial of the defended criminal proceeding, or to relitigate the minutiae of the matters that were the subject of the plea before the court.

29. In my view, where issues as to admissibility of material such as that the subject of this Ruling arise in other cases, those issues will necessarily be decided on a case by case basis. It is likely, in my view, that there will be circumstances where it will be appropriate for the Tribunal to receive hearsay evidence as to the circumstances of the criminal conduct. If such evidence is received, it will be a matter for the Tribunal to assess that evidence in the context of all the evidence before it.

30. Further to and consistent with my ruling in relation to document 9 of the material filed under section 49 of the Act, the other material identified earlier in these reasons as being objected to by the Applicant was excluded.

31. The Applicant's evidence included evidence to the following effect -

* His statutory declarations of 26 March 1999 and 24 December 1999, and his affidavits of 7 July 2000 and 23 August 2000 were true and correct.

* He had committed no further criminal offences or engaged in any further ethical misconduct, and there were no criminal charges or ethical matters pending against him.

* He had complied with the condition imposed as part of the Tribunal's order of July 2000 staying the decision of the Authority the subject of this proceeding, and there was no outstanding allegation that he had not honoured the condition.

* He had pleaded guilty to count 5 of the Presentment, but maintained his innocence of that charge. He had been advised by his Counsel in the criminal proceeding to plead guilty to count 5 and had accepted that advice. He had subsequently learned that his Counsel had not been entitled to practice. He had not sought to re-open the finding on count 5 because he thought that overall he had been dealt with very fairly. He had been able to retain his estate agent's licence to date. The advice he had received was to the effect that his treatment was not going to be any different whether he pleaded guilty to 4 charges or to 5 charges. Additionally, to go on further would have been very costly and time-wasting.

* He acknowledged that what he had done transgressed the criminal law and was a serious offence. He accepted he acted dishonesty in relation to each of the 4 offences for which he still maintained his guilt. Further that he thought he was doing the wrong thing at the time. He also acknowledged that the offences he did commit were deliberate. He understood that others that were providing finance would have acted on his conduct.

* He is currently responsible for the running of the organisation. The business had been "corporatised". The nature of the estate agency business had changed in that it was not now involved in "first home buyer sales", and had not been for some 3 years.

* The licensed estate agency business was operated with an "officer in effective control" in compliance with the rules and regulations.

* When he committed the offences the subject of counts 1 to 4 he was not the holder of an estate agent's licence. He had been an agent's representative.

* Without admitting that there was a need for special conditions to be attached to any permission granted by the Tribunal, he would be prepared to have conditions to the effect of those imposed under the stay order attached should the Tribunal determine this matter in his favour.

* At the time the offences were committed his state of health emotionally was "not as good as it could have been or should have been". He had suffered substantial financial losses owing to a business venture having failed. He was under severe emotional pressure in relation to a level of debt bordering around $2m. He was facing possible bankruptcy at that time. He had not yet recovered financially.

* Having a business one was always under pressure. He considered he was well equipped now to cope with the pressures in an appropriate way. He had learned his lesson and regarded having been able to keep his licence until now as a privilege, not a right.

* From soon after committing the offences he knew he had to take some steps in rehabilitation. He undertook the course of study to qualify for an estate agent's licence. He understood that to commit any further criminal or ethical offence would mean "I would not deserve another chance".

* He detailed his community and charitable activities.

* In relation to an "offer" of the Authority, subsequently withdrawn, that he be permitted to work as an agent's representative, he understood that there were issues as to shareholding, directorships and the position of "officer in effective control" and that such a scenario would be to "putting me back doing what I was doing at the time I committed the offences". He would have to return to the direct "one on one" customer contact selling property. Such a circumstance would be disastrous from a personal point of view. He understood that as an agent's representative he would not be able to be involved in the ownership of an estate agency business. Such a circumstance would substantially affect his own financial investments.

* He had suffered substantial embarrassment arising from these matters. He had stepped down as officer in effective control.

* He gave an "unconditional guarantee that I will never be before the courts again".

* He gave evidence in relation to the nature and circumstances of each of the 5 counts in the Presentment to which he pleaded guilty. His evidence included evidence to the effect that he personally had done some of the matters detailed in the particulars contained in a number of the counts, and that some had been done by another person. He provided explanations in relation to a number of the particulars.

* Where the estate agency business was predominantly different to the period 1993 -1994 was that the business then consisted essentially of first home buyer sales, but was now a more general real estate practice and had a large base of investor clients. He was still involved with finance where prospective purchasers needed finance to secure the property. This was larger finance than in 1993 - 1994.

32. He stated he was a solicitor. He adopted the contents of his affidavit filed in support of the Applicant, which affidavit states, among other things, that he had known the Applicant in a professional capacity for approximately 7 or 8 years and had many professional dealings with the Applicant. He observed that the conduct engaged in by the Applicant the subject of the offences was " a very very serious offence". He considered that the Applicant had "mended his ways", and had no hesitation in recommending the Applicant.

33. He stated he was a company director. His company was involved in property development. He adopted the contents of his affidavit filed in support of the Applicant, which affidavit states, among other things, that he had worked with the Applicant on a particular property development, and that the Applicant had advised his company in regard to property developments. The extent of his regard for the Applicant was highlighted by the passage in his affidavit that "If Paul is unable to provide me with his professional advice I will seriously consider whether or not to keep building".

34. He stated he was a solicitor. He adopted the contents of his affidavit filed in support of the Applicant, which affidavit details, among other things, some information as to charitable activities undertaken by the Applicant.

35. Ronald Jontof-Hutter stated that he was a registered psychologist, and that he practised in the areas of clinical and forensic psychology. He adopted his affidavit filed in the proceeding and his report exhibited to that affidavit. He expressed the opinion that the Applicant was unlikely to re-offend. He based that opinion on 3 observations. The first was that from a clinical point of view the Applicant did not fit in the description of a person with a psychopathic or sociopathic personality disorder. In so far as the Applicant was concerned, this meant that he was likely to learn from experience, he was likely to have some moral development, he had a value system and he understood right from wrong. The Applicant had shown a considerable amount of remorse. He was very committed to family values. For the last 6 years the Applicant had not done anything to break the law. He referred both in his evidence and in his report to the voluntary community service undertaken by the Applicant.

37. It is clear from the following passage from Mario Inglese and M Inglese Pty Ltd and Estate Agents Board and the Chief Executive Officer of the Estate Agents Board (unreported, Supreme Court of Victoria, Murphy J, 15 August 1999) that proceedings of this nature are not about punishment but rather the protection of the public -

"If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent's business."

38. Mrs Morrish submitted that the public interest could be protected in the knowledge that the Applicant would almost certainly not pose a risk of re-offending.

39. It is clear from Cichello that it is the circumstances of the offending that is the critical determining factor, not the fact of being found guilty of a serious charge.

40. Mr Silbert correctly submitted that the offences for which the Applicant had been found guilty went to the heart of the financial system so far as they related to the provision of finance for property purchases. He submitted that they had a real potential to defraud the lender and bring about the financial ruin of the borrower. They also served to bring the real estate industry into disrepute. It was submitted that this case demonstrated what occurred when standards were permitted to fall. He submitted that the sentence imposed in the court proceedings was "a perfectly proper sentence. It was within the parameters of the sentencing range". Mr Silbert submitted however, in effect, that the factual situation that appeared from the plea transcript was inadequate to describe what had occurred. In my view, it is clear that had the loan applications proceeded there was a potential for loss by both the loan applicants and the lenders. The conduct the subject of the offences was indeed serious, and this was acknowledged by the Applicant.

41. In relation to the submission by the Authority that the Applicant had attempted to minimise his role in relation to the commission of the offences, Mrs Morrish submitted that what the Applicant had done was no more than establish that there were 2 parts to the Crown case against him. First, that he was being held criminally responsible for his own conduct. Second, that in relation to the matters contained in the particulars to which he said he was not involved, he was held criminally responsible for the acts of another. Having considered the documentation and the oral evidence before me, including the aspects of the Applicant's evidence recited earlier in these reasons wherein he acknowledged the seriousness of his offences, I am not satisfied that the Applicant has attempted to minimise his role.

42. Mrs Morrish submitted that the learned sentencing judge in accepting the Crown's version at its best had given the Applicant an opportunity and the Applicant had not misplaced that trust. It was submitted by Mrs Morrish that the Authority refused to accept the propriety of what the Crown did and what the court had done. The position was that the DPP had received a brief of evidence, and thereafter a Crown Prosecutor had signed the Presentment. Further, the learned sentencing Judge had an understanding of the entirety of the case and how it fitted in with the other offenders, having dealt with the other offenders associated with the matter. It was in those circumstances that the court expressed the view as recorded in the transcript that it was appropriate to deal with the Applicant "by way of not recording a conviction".

43. I was referred to the discussion during the plea as to the possible consequences of the criminal proceedings upon the Applicant's ability to remain in the real estate industry. Mrs Morrish placed considerable emphasis on the following passage at page 2 of the sentencing remarks namely "I am satisfied that you have learned your lesson and that you are almost certainly not going to offend in the future".

44. As I have indicated earlier, I consider it to be of considerable benefit that I have been provided with the court transcripts. I place considerable weight upon the above-quoted comments of the court in the context of the test in section 31C of the Act.

45. In relation to the observation of Mrs Morrish that there had been no appeal by the Crown, it would appear from the transcript of the plea that the court had invited the Prosecutor during the plea to comment upon the appropriateness of a non-conviction order. I conclude from the transcript that the Prosecutor did not take issue with the appropriateness of a non-conviction order. I attach some significance to that matter.

46. Mrs Morrish referred to the age of the offences. They occurred in 1993 and 1994. They were investigated in 1994. The Applicant was interviewed for the first time in 1994. He was re-interviewed in 1997 following which he was then charged.

47. Mrs Morrish referred to the Applicant's rehabilitation in terms of character and professional development and his prior and subsequent good character. She submitted that subsequent to the commission of the offences the Applicant had undertaken various courses for professional development and pursued his application for a full estate agent's licence which was granted. He had remained in the industry and progressed through the industry in the 6½ years since the last offence was committed. In that time he had been exposed to members of the public all without incident. The Applicant had established that he had reformed and rehabilitated himself. As far as the public interest was concerned the Applicant had a "track record". In this context I was referred to Ruscitti v Business Licensing Authority (VCAT 23/2/1999 No. 1998/083322), and in particular the following passage at page 10 -

"In the Matter of an Application by Dezarnaulds and the Legal Profession Act 1987 No. 11091/97 (18 September 1997) Graham A-J of the Supreme Court of New South Wales Common Law Division stated that in assessing the public interest there may be:

`no public interest in denying forever the chance of redemption and rehabilitation to former practitioners'

The Tribunal respectfully agrees and points out that it is open to the applicant to further apply when the Act allows and when the public interest balance might weigh more heavily in favour of redemption and rehabilitation as, with the passage of time, his convictions for serious criminal convictions move further to the background of public concern".

48. The following statement in Robbins v Business Licensing Authority (Kellam J, VCAT, 22 February 2000, No. V59/1999) at page 10 is also relevant in this context.

"... the applicant's task of satisfying me that it would not be contrary to the public interest for him to be granted permission to be employed in a customer service capacity would have been enhanced had the offences and the court proceedings not been so recent. Had this been the case, the applicant would have had the opportunity to support his assurances that he would not re-offend again by reference to a more lengthy period of compliance with the law".

49. I respectfully agree with the above observations in Ruscitti and Robbins. The period of time that has elapsed since the commission of the offences is, in my view, a highly relevant matter to be taken into account in proceedings under section 31C of the Act. Equally, the conduct of an applicant since the commission of the offences is relevant. I place considerable significance on these matters in this case. The Applicant in this case is able to point to a substantial period of time that has elapsed since the commission of the offences, and also to an incident free "track record" in the industry in that time. In my view, these matters support his application to the Tribunal.

50. Mrs Morrish submitted that the Applicant's conduct was out of character at the time of offending. The offences occurred at a time of stress and financial difficulty. In his evidence the Applicant indicated that business pressures would not lead to the commission of further offences. I am satisfied that the Applicant appreciates the likely consequences of any further misconduct.

51. Reference was also made to the following passage at page 12 in Robbins. That matter concerned a provision in the Motor Car Traders Act which was in similar form to section 31C of the Act.

"In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of

matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or sales person. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor character, such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars".

52. In my view the above principles in Robbins also have application to section 31C of the Act. I note that in Robbins the Applicant was at the time of decision undergoing a community based order. I regard that as a significant distinguishing feature from this matter.

53. It was contended by Mrs Morrish that the Applicant's remorse was evidenced in part by the plea and the maintenance of that plea. Mr Silbert submitted that "there may be some ambivalence on the question of remorse" and that "genuine remorse" was not evident from the material before me or the Applicant's oral evidence. He submitted that it appeared from certain of the documents that there had been some sort of consistent attempt right up until almost the final address or perhaps even permeating into it seeking to distance the Applicant from the culpability in this matter.

54. Mr Silbert submitted that there were a number of inconsistencies that permeated the statutory declarations filed by the Applicant and the oral evidence in the proceeding. In these circumstances it was a matter for the Tribunal to form an assessment of the Applicant's credit and to assess how candid and honest he was. Among the matters referred to by Mr Silbert was the statement of the Applicant in his statutory declaration of 26 March 1999 that "At the time that I undertook the acts referred to in charges 1 to 4 I did not turn my mind to the fact that I may have been involved in any criminal activity", and the Applicant's acknowledgment in his oral evidence to the effect that he had thought he was doing the wrong thing at the time he committed the offences.

55. There were aspects of the Applicant's evidence on this issue during cross-examination that caused me some concern. There were aspects of the way the Applicant gave certain of his answers in cross-examination which in my view evidenced an overly guarded approach. However, on balance, having regard to, among other things, the seriousness of the proceeding for the Applicant in the sense of what was at stake, these matters are not such as to warrant a refusal of the application.

56. In considering the question of remorse I also take into account the report of Mr Jontof-Hutter which refers to both the Applicant's expression of remorse and the subsequent conduct engaged in by him consistent with that expression. I also take into account a further psychological assessment and report which refers to the Applicant's feelings of remorse. I accept that the Applicant is remorseful for his conduct.

57. Mrs Morrish informed me that the Applicant relied upon the "open offer of the Respondent" made during the course of these proceedings but now withdrawn. She submitted it was one piece of evidentiary material to be taken into account. It was submitted that such an offer was significant. The Authority's offer was to the effect that the Applicant not be permitted to continue to hold an estate agent's licence for 2 years. That he be granted permission to be an agent's representative for 2 years and on the expiration of that period that he be free to apply to the Authority for an estate agent's licence. Further, that the Applicant have no interest share or investment in or be a beneficiary of any trust deriving income from or receive directly or indirectly any benefit or income from the estate agency business Harvard Securities or its successors other than as an employee. Whilst the Authority's offer was before me, it is clearly a matter for the Tribunal to make its own decision further to the provisions of section 31C of the Act.

58. Mrs Morrish submitted that it would not be contrary to the public interest to permit the Applicant to retain his estate agent's licence, and that the interests of the public would not in any way be undermined by the Applicant retaining his estate agent's licence. Whilst not conceding that the imposition of conditions under section 31D of the Act was necessary, reference was made to possible conditions that the Applicant not be entitled to deal with procuration of applications for finance for a period of time, and not be permitted to be the "officer in effective control" for a period.

59. In the context of the public interest Mr Silbert referred me to the large degree of trust placed on those in the real estate industry and the large amount of money controlled by them. He submitted that these matters command protection from the type of behaviour engaged in by the Applicant. He put further that it "sends an unhelpful message to the public" that persons who engage in conduct of this sort are permitted to continue operating without restriction. The fact is that the conduct engaged in by the Applicant the subject of the Court proceedings occurred in the course of his employment in the real estate industry. The maintenance of standards in the industry is a relevant consideration. I have taken these matters into account.

60. Further to my observations and findings as detailed above and to the provisions of section 31C of the Act, I have concluded that it is not contrary to the public interest for the Applicant to hold an estate agent's licence. I consider, however, that in giving permission under section 31C of the Act, it is appropriate under section 31D of the Act to impose certain conditions to ensure the ongoing protection of the public interest.

61. The decision of the Authority under review is set aside and substituted for it is a decision that under section 31C of the Act permission is given to the Applicant to hold an estate agent's licence subject to the following condition imposed under section 31D of the Act namely-

The Applicant shall not from the date of this decision until 21 September 2002 -

(a) participate in the preparation of any applications for finance from prospective purchasers; or

(b) act as the officer in effective control of any estate agency business whether that business is carried on by a licensed corporation or a licensed individual.

62. I have given some preliminary consideration to the question of costs. Whilst on the material presently before me I would be inclined to make no order as to costs, I consider that I should give the parties an opportunity to put submissions to me on the question of costs should they so desire. Any such submissions should be in writing and filed with the Tribunal and served on the other party within 14 days.