In disciplinary matters of this kind, the Tribunal's powers to make orders under the EA Act are primarily protective, even though they may have a punitive effect on the particular agent. When considering whether a person should continue to work as a licensed estate agent, there are two matters raised which focus on the public interest: the protection of the public and the necessity of maintaining standards in the conduct of the profession. A very high standard of care, compliance and honesty is required for estate agents. The Tribunal is to have regard to specific deterrence and general deterrence. Relevant to the former is the estate agent's level of insight into the conduct in issue. The orders to be made must be tailored to the relevant person, including when considering periods of disqualification. In respect of general deterrence, the Tribunal should consider the effect its orders will have on estate agents' understanding as to the requirements and the standards expected, to prevent others from engaging in similar misconduct in the future.

1. Relevantly, where a period out of practice of up to 12 months is to be ordered, the Tribunal has a choice whether to suspend or cancel the person's licence. As observed by the Tribunal in an analogous context (of a disciplinary proceeding concerning a medical practitioner) in Honey v Medical Practitioner Board of Victoria:[12]

The major difference between a period of suspension and cancellation is that once [a person's] registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the [regulatory authority] that registration is appropriate and that he fulfils the qualifications for general registration ...

1. As the panel observed in Medical Board of Australia v Lee:[13]

It follows that cancellation is a more serious determination, as it 'sends a clear message of unsuitability to practice', while suspension 'may be thought to indicate confidence in the [person]'s future ability to practice once the period of suspension is served'.

1. I accept the Director's submission that a reprimand is 'necessary given the serious nature of the Tribunal's findings'.[14]
2. The conduct in which Mr Aloysius engaged was clearly serious given he failed on multiple occasions, over an extended period, to comply with various obligations under the EA Act designed to protect consumers, such as those relating to depositing client money into a trust account in the name of the agency.
3. The views expressed by Judge Hampel in Victorian Legal Services Commissioner v Hyatt, in the context of the disciplinary proceedings concerning a solicitor who had failed to comply with similar trust account requirements, are apt:[15]

[t]hese are not mere technical breaches, or failures to deal with meaningless red tape requirements. As a result of [the practitioner's] misconduct, the information clients were entitled to by law, in respect of moneys held on trust on their behalf, was not recorded. They were denied the means of accessing the information to which they were entitled, in respect of the holding, and dealing with their money.

1. In that case, Judge Hampel went on to emphasise the importance of a reprimand for failures of this kind, observing:[16]

a reprimand is a powerful statement to the practitioner of how far below the standard of their profession they have fallen by their misconduct. It is in that sense a more personal sanction than the imposition of a fine, or suspension or disqualification from practice. ... A reprimand goes to their personal integrity. ... it is not necessarily a sanction that is to be imposed only in circumstances where more punitive, livelihood-affecting sanctions are not imposed. Nor should the importance of a reprimand as a powerful public statement by the authority vested with the power to impose sanctions, and maintain professional standards as to how far short of those standards a practitioner's conduct has fallen be underestimated.

1. For similar reasons, I consider a reprimand to be appropriate in this case.

Cancellation of licence and disqualification for 12 months

1. The Director submits that, 'given the Tribunal's serious findings that ... [Mr Aloysius] is currently not a fit or proper person to hold a licence', 'an order for cancellation of [Mr Aloysius'] licence is warranted in the circumstances' and that he should also be 'disqualified from reapplying for an estate agents licence for a period of at least 12 months'.[17]
2. In that regard, the Director points to my observations in the October 2024 decision that, in the context of the conduct leading to the criminal charges brought against him by the Director (in relation to his conduct when he was an agent's representative), Mr Aloysius had:[18]

engaged in conduct that suggests doubt as to his moral integrity and rectitude of character [and he] has yet to develop full insight into his failings and has not undertaken any rehabilitative steps.

1. The Director submits that:
   • cancellation is 'more appropriate' than suspension because the latter 'would allow [Mr Aloysius'] re-entry as a licensee, with all the rights and obligations attached thereto, without the required scrutiny associated with the making of a new licence application';[19]
   • in light of the Tribunal's findings as to Mr Aloysius' lack of insight and failure to undertake any rehabilitative steps, 'the Tribunal could not be satisfied the Respondent would be fit to resume ... a licensed position in the industry following a period of suspension';[20] and
   • a 12-month period of disqualification is 'proportionate and warranted in the circumstances', noting that it would give Mr Aloysius the 'opportunity ... to undertake various rehabilitative steps should [he] wish to re-apply for an estate agent's licence'.[21]
2. As noted at the outset of these reasons, in the October 2024 Decision, I found that Mr Aloysius was not, at that time, a fit and proper person to hold a licence. This was particularly so given the doubts I expressed as to his moral integrity and rectitude of character in light of his conduct in depositing trust money into his own account, rather than his employer's trust account, when he was an agent's representative.
3. In this case, there is clearly a need for a period of time out of practice for the purposes of:
   • specific deterrence, i.e. to deter Mr Aloysius from engaging in similar conduct in the future should he be re-licensed;
   • general deterrence, i.e. to deter other estate agents from engaging in similar conduct; and
   • to uphold standards within the property industry and maintain public confidence in the regulation of estate agents, by showing that serious contraventions of the EA Act will be meet with 'livelihood-affecting sanctions'.
4. By failing to make submissions (see [5]), Mr Aloysius has missed the opportunity afforded to him to produce evidence to demonstrate his remorse, insight and rehabilitation since the October 2024 Decision. It necessarily follows that, if his licence were to be suspended (instead of being cancelled), the Tribunal could have no confidence as to his future ability to comply with his obligations as an estate agent once any period of suspension had been served.
5. For these reasons, I consider it appropriate to cancel Mr Aloysius' licence and to disqualify him from holding a licence for a period of 12 months (which I accept is 'proportionate').

1. The Director contends that a penalty set at the 'maximum fine' (i.e. $5,000) is warranted 'given the failure [of Mr Aloysius] to comply with central elements of the legislative scheme, including licensing requirements and regulations pertaining to knowledge and honesty of estate agents'.[22]
2. In the Director's submissions, reference is made to the observations of Maxwell P in Quinn v Law Institute of Victoria, that, in respect of the regulation of professions and industries (in that case, relating to a legal practitioner):[23]

the Tribunal's protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

1. In Medical Board of Australia v Ballekere ('Ballekere'),[24] the Tribunal had occasion to consider whether a fine or period of suspension or a combination of both was appropriate in the context of misconduct by a geriatric psychiatrist. In that case, the panel considered it appropriate to order a combination of a short period of suspension (three months) and a substantial fine ($15,000, being half of the maximum permitted under the relevant legislation) in circumstances where a longer period of suspension would occasion difficulties for the practitioner's patients and colleagues (given his specialist field of practice).
2. However, the panel also made reference to the observations of the High Court in Australian Building and Construction Commissioner v Pattinson[25] as to the dangers of the imposition of such penalties being viewed as just 'a cost of doing business'.[26]
3. It is also appropriate to have regard to the Court of Appeal's decision in Stirling v Legal Services Commissioner,[27] where the determinations made by VCAT (in the context of disciplinary proceedings concerning a lawyer) were set aside on the basis that the Tribunal had imposed a 'double penalty'.
4. In the present case, I have already determined that it is appropriate to cancel Mr Aloysius' licence and disqualify him from holding a licence for a lengthy period. That is likely to have significant financial implications for Mr Aloysius in and of itself.
5. In that light and given there has been no suggestion that his conduct resulted in any particular loss to his clients, I do not consider it appropriate to also impose a penalty.

1. The Director contends that it is appropriate for the Tribunal to require Mr Aloysius to 'undertake (or re-undertake as the case may be) and successfully complete 3 units of approved study' in relation to trust account management, ethical practice and compliance more generally.[28]
2. There can be little doubt that, based on the conduct which has been proven, Mr Aloysius would benefit from further education as to the matters identified by the Director if he intends to return to practice.
3. However, in my view, there are two difficulties with making an order under section 28A(1)(g), which provides for an order requiring an estate agent to enter into an undertaking (see the fourth bullet point at [8]).
4. First, the proposed education is only relevant if Mr Aloysius intends to reapply to be a licensed estate agent after the period of disqualification. Given his failure to file submissions as to the appropriate determinations, it is unknown if he does, in fact, intend to seek to be re-licensed in 12 months' time.
5. Second, in circumstances where Mr Aloysius has not participated in this stage of the proceeding, there is a real question as to enforcement of the order were he to fail to enter into the undertaking in compliance with the Tribunal's order.
6. In any event, were Mr Aloysius to submit an application to be licensed again (i.e. after expiry of the period of disqualification), the BLA may well require him to confirm whether he has undertaken appropriate education to address the evident gaps in his understanding as to his duties under the EA Act (and, if so, to provide evidence of it).[29] Further, in the event he had not done so, that may be a factor that the BLA takes into account in its assessment of whether (or not) Mr Aloysius is (at that time) a fit and proper person to hold a licence.
7. In these circumstances, I do not consider it to be necessary or appropriate to order Mr Aloysius to enter into an undertaking as to education of the kind proposed by the Director.

[1] Director of Consumer Affairs v Aloysius [2024] VCAT 945.

[6] The Victorian Civil and Administrative Tribunal Act 1998 (Vic), section100 provides for this mode of determination where the parties agree.

[7] Applicant's Submission on Orders under section 28A of the Estate Agents Act (Vic) 1980 dated 12 February 2025 ('Applicant's Submissions').

[8] Ibid [61], [63], [68] and [70].

[9] Drawn from item 2 of Schedule 1 of the Estate Agents (Education) Regulations 2020.

[10] Any penalty must be paid to the Victorian Property Fund: EA Act, s 28A(3).

[11] [2019] VCAT 1655 [12] (citing Mario Inglese and M Inglese Pty Ltd and Estate Agents Board, Supreme Court of Victoria, 15 August 1989; Quinn v Law Institute of Victoria Limited [2007] VSCA 122; Director of Consumer Affairs Victoria v Marshall [2013] VCAT 1316; Director of Consumer Affairs Victoria v Talia [2010] VCAT 1107 Director of Consumer Affairs Victoria v Rounds [2013] VCAT 1882; Acting Director of Consumer Affairs Victoria v Moularas [2014] VCAT 474; Buzzo Holdings Pty Ltd & Anor v Loison [2007] VSC 31; Consumer Affairs Victoria v Hoare (No 2) [2015] VCAT 1077).

[12] [2007] VCAT 526 [42].

[13] [2022] VCAT 667 [40] (citing Honey, ibid [43]).

[15] [2018] VCAT 1498 [11].

[17] Applicant's Submissions [63]-[64].

[18] Director of Consumer Affairs Victoria v Aloysius [2024] VCAT 945 [95].

[23] [2007] VSCA 122 [31] (Applicant's Submissions [17]).

[24] [2022] VCAT 645.

[25] [2022] HCA 13.

[26] Ballekere [48] (citing Pattinson [17], [26] and [43]).

[27] [2013] VSCA 374.