The registrar is directed to list the proceeding for a further hearing before me. Allow half a day.

1. In December 2015, the Director of Consumer Affairs Victoria (CAV) applied to the Tribunal for an inquiry about Mr Joel Murray's conduct as an estate agent. That application was made under section 25 of the Estate Agents Act 1980 (Vic) (Act).
2. A hearing was held on 11 March 2016 and, on 21 April 2016, I handed down reasons for findings of fact I had made about the subject matter of the inquiry. After doing so, I made orders for the parties to make submissions about what determinations should be made having regard to the findings of fact.
3. Having received the parties' submissions, I am now in a position to make those determinations.

1. The present inquiry arose out of Mr Murray's failure to comply with a condition placed on his estate agent's licence after an earlier inquiry.
2. The earlier inquiry was conducted in September 2015 and concerned Mr Murray's failure to have his trust accounts audited for the financial years in the period 2010 to 2014 as required under the Act. The Tribunal (differently constituted) found that Mr Murray had contravened the requirement for trust account audits contained in section 64 of the Act five times and that, by so doing he had failed to exercise due care, skill and diligence in performing his functions as an estate agent and had engaged in conduct that was unprofessional.[1] The Tribunal ordered that Mr Murray be reprimanded, that his estate agent's licence be suspended for a period of three months and that a condition be placed on his licence. The suspension expired on 19 January 2016.
3. The condition was that, on or before 19 October in each of 2015, 2016 and 2017, Mr Murray was to notify CAV in writing whether or not he had complied with his trust account audit and lodging requirements under section 64 of the Act in respect of the previous financial year (licence condition).
4. CAV made this further application because it said Mr Murray failed to have his trust account audited in 2015 as required by section 64 and he breached the licence condition because he did not notify CAV about his compliance with the audit obligation by 19 October 2015.
5. After the hearing in 11 March 2016 at which I heard evidence from an officer of CAV, Ms Chantel Alicia Drysdale and Mr Murray, I made findings of fact as recorded in reasons dated 21 April 2016.[2] Those findings may be summarised as follows:
   • Mr Murray did not, within three months of the end of the 2014/2015 financial year, cause his trust account to be audited. The trust account audit was completed on 10 March 2016;
   • Mr Murray was aware of the obligation to comply with section 64 of the Act and he was also aware that a failure to comply could be accompanied by serious consequences;
   • The time required to undertake and complete the trust account audit was approximately one day;
   • Mr Murray sent by post a letter dated 15 October 2015 to Mr Ventrice, CAV's representative in both proceedings. That letter would have complied with the licence condition as Mr Murray stated in it that he had not as yet lodged the audit report;
   • On 13 November 2016, Mr Murray was aware that his letter dated 15 October 2016 had not been received by CAV. Despite his own understanding that Ms Drysdale had strongly recommended that he email a copy of the letter, Mr Murray did not take any step to do so or otherwise ensure that CAV held a copy of the letter at a date earlier than 11 March 2016. That letter had not been seen by any representative of CAV before the hearing before me on 11 March 2016;
   • In early September 2015, Mr Murray's wife had a miscarriage and they were both very distressed by that event. I accepted that there would have been a period of grieving afterwards. There followed another pregnancy which was said to be very difficult with Mr Murray's wife suffering from nausea and illness throughout. These matters are referred to by me as the 'context matters';
   • Mr Murray made no mention of the recent miscarriage to Mr Ventrice or any other CAV representative on 22 September 2015 at the hearing of the first inquiry. Mr Murray did not inform Ms Drysdale of the context matters on 13 November 2015 when they spoke about the audit report he had not lodged for the financial year ending 30 June 2013. Mr Murray did not inform Mr Ventrice or any other representative of CAV of the context matters at any time before the morning of the hearing before me on 11 March 2016;
   • The evidence before me did not allow me to accept Mr Murray's wife's ill health was such that, during the whole of the period late September 2015 to early March 2016, he was unable to apply himself to the task of preparing for the required audit. I was similarly unable to find that Mr Murray's work and other family commitments reduced his capacity to comply with section 64; and
   • The evidence did not allow me to accept that Mr Murray was, due to his personal circumstances as described in the evidence, unable to attend to his statutory duty earlier than March 2016. In particular, I did not accept that the context matters, including Mr Murray's wife's illness, explained or excused Mr Murray's failure to ensure the trust account was audited by 30 September 2015.
6. On the basis of those factual findings, I found that CAV had proven that:
   • Mr Murray breached section 64 of the Act as he had failed to cause his trust accounts to be audited by 30 September 2015;
   • By not providing written notification to CAV by 19 October 2015 about the audit for the 2014/2015 financial year, Mr Murray breached section 21A(2) of the Act which requires a licensee to comply with conditions on a licence; and
   • By failing to comply with section 64(1) and with the licence condition, Mr Murray contravened regulation 13(2) of the Estate Agents (Professional Conduct) Regulations 2008 (Vic) (Regulations) by engaging in conduct that was unprofessional.
7. Having made these findings, it is now necessary for me to determine under section 25(1)(a) and (c) of the Act whether, as alleged, Mr Murray:
   • Has contravened or failed to comply with the Act or the Regulations; and/or
   • Has been guilty of conduct as an estate agent which renders him unfit to hold a licence.
8. The parties made written submissions on these matters and agreed that the questions could be determined on the papers.[3] While Mr Murray was not represented previously, submissions were made on his behalf by a solicitor and counsel.
9. In the written submissions made on his behalf, Mr Murray did not dispute that he had been found to have contravened or failed to comply with the Act and the Regulations. There was a dispute about whether Mr Murray had been guilty of conduct as an estate agent which rendered him unfit to hold a licence.

1. CAV submitted that, in the absence of Tribunal decisions discussing in detail the legal test to be applied to the question of whether an estate agent is unfit to hold a licence due to certain conduct, regard may be had to decisions made in respect of other licenced professions. CAV placed primary reliance on the decision of the High Court of Australia in New South Wales Bar Association v Evatt.[4] It contended that the case stood for the following propositions:
   • In the legal profession, a finding of misconduct demonstrates unfitness to be a barrister;
   • Extenuating circumstances do not bear upon the issue of whether a finding of misconduct proves the unfitness of a person to be a barrister;
   • An isolated or passing departure from proper professional standards may not be indicative of unfitness; and
   • A person's failure to understand the error of his ways of itself demonstrates unfitness to belong to a profession where a client depends upon the standards and skill of his professional adviser.[5]
2. CAV discussed the meaning of unprofessional conduct and what was meant by the term 'unfit' in this context. It contended that the term allows for the widest scope for judgment as to a person's fitness to work in a particular industry or profession and that it should also pay regard to the statutory context, the activities in which the person is engaged and the purposes to be served by those activities.
3. In the submissions made for Mr Murray, his solicitors and counsel, Mr A Felkel, contended that the first two points set out above are not supported by the decision in Evatt. They contended that they were not meant to establish general propositions but rather were specific to the case before the Court. The submissions contended that, in assessing a person's fitness to hold a licence, the Tribunal is required to consider all of the relevant facts and circumstances before it. The matters to be considered were stated to include the nature of the offending, the facts and Mr Murray's personal circumstances and insight, the protection of the public and the necessity of maintaining standard in the conduct of the profession.
4. In reply, CAV contended that the task before me ought to be approached on the basis that the finding of unprofessional conduct is such as to render Mr Murray unfit to hold a licence but that the proposition is subject to several other considerations. CAV repeated the matters are as set out above.
5. It is not necessary for me to engage in a dissection of the cases referred to by the parties and how they might be adapted to the estate agency industry. The parties agreed on the broad nature of the matters to be considered in this case. It is sufficient to say that there are a wide range of factors which might be relevant to the assessment of conduct in a particular case. If a finding of unprofessional conduct has been made that must be a relevant and important factor. Also important is the nature of the profession, the particular functions of a licence holder in that profession and how the conduct relates to the performance of those functions. Other relevant matters may be the number of times the conduct was engaged in, the facts and circumstances of the particular case and the licence holder's insight into the conduct in issue.
6. I accept CAV's submission that the concept of fitness to hold a licence is concerned with whether the estate agent has the necessary attributes, knowledge or skill to undertake the functions of an estate agent.
7. The areas of disagreement between the parties included whether, in making a determination under section 25, it is appropriate to consider the protection of the public and the maintenance of standards or whether those considerations arise in relation to the next step in this case, that is appropriate orders under section 28A of the Act. I agree with CAV that these are matters primarily relevant to the ultimate orders to be made and any sanctions that are to be applied. There was also disagreement about whether Mr Murray's circumstances and the context matters ought to be considered in the context of making determinations under section 25. I will come to that issue shortly.

1. Mr Murray accepted that it was a matter of some seriousness to impose a condition on an estate agent's licence and that compliance must be regarded as imperative. He also accepted that compliance with section 64 of the Act in respect of trust account audits serves an important purpose and that Mr Murray's prior sanction was an aggravating factor. However, the submissions contended that the conduct was not at the higher end of the 'offending hierarchy' as it did not result in any loss or damage to any member of the public. Instead he was 'simply' guilty of being neglectful.
2. CAV regarded the above propositions as providing confirmation that Mr Murray did not understand the errors he had made and that he had failed to demonstrate an appropriate degree of remorse and insight.
3. I do not accept that a failure to comply with a condition placed on a licence following an inquiry by this Tribunal and a failure to comply with section 64 of the Act falls at the lower end of the range of conduct which might be found to be unprofessional. As discussed in my earlier reasons, the failure to comply with section 64 of the Act is a serious matter because it contains a statutory obligation which is directed at the protection of client's funds and their financial interests. Given Mr Murray's history, his further failure to comply with the same statutory obligation was unprofessional conduct. By placing a condition on his licence, the Tribunal brought home to Mr Murray the necessity to comply with that statutory obligation.
4. I do not accept the proposition that this was simply a case of neglect. Of all estate agents in Victoria, none ought to have known better than Mr Murray the requirements contained in section 64 of the Act. I consider that the failure to ensure that a condition imposed by this Tribunal was complied with displayed a very serious disregard of or recklessness as to the law and the responsibilities of estate agents. A highly regulated industry such as that of estate agents can only be effective if licenced agents know and adhere to the law. By doing so they demonstrate respect for the law, the obligations which attach to the privilege of being licenced and the paramount importance of protecting their client's funds and interests.
5. Mr Murray's written submissions sought to rely on criminal case law dealing with persons whose mental functioning was impaired and the impact of that on the moral culpability of the relevant offending conduct. While the submissions said that Mr Murray did not assert he was impaired in 2015, they said that his circumstances meant that his culpability was reduced. Mr Murray's submissions also contended that the fact he had admitted not having his trust accounts audited by 30 September 2015 demonstrated strong insight and that matter ought to reduce his culpability.
6. CAV contended that Mr Murray had not showed his mental functioning was impaired or how his personal circumstances should reduce his culpability for failing to submit his audit report on time or complying with the licence condition. It further contended that, while Mr Murray had made some admissions, he sought to qualify them by reference to his personal circumstances at the time. CAV argued that these matters suggested that Mr Murray considered his actions were reasonable and justifiable in the circumstances and that approach is inconsistent with true remorse.
7. While I previously found that it would be understandable that Mr Murray and his wife would have experienced distress following the miscarriage and have had a period of grieving, I made no finding that Mr Murray was impaired as a consequence. No medical evidence of any kind was produced in respect of the miscarriage, the subsequent pregnancy or Mr Murray's reactions to each.
8. I expressly found that the context matters did not excuse Mr Murray's failure to attend to the required audit or that his family commitments reduced his capacity to comply with section 64. There are no other surrounding circumstances which require consideration.
9. As to the question of insight, I agree with CAV. At no stage has Mr Murray demonstrated that he appreciates that the obligation to comply with section 64 is absolute and not subject to his personal circumstances. The submissions appear to confirm that, despite my earlier findings, he continues to believe that his conduct was justified.
10. Having regard to:
    • The particular conduct in issue;
    • The circumstances in which that conduct was engaged in, including the holding of the previous inquiry, the previous proven breaches of the Act and the condition placed on Mr Murray's licence by this Tribunal; and
    • Mr Murray's lack of insight into the significance of that conduct at the time he engaged in it and since,

I am satisfied that Mr Murray's conduct renders him unfit to hold an estate agent's licence.

1. Having regard to my earlier findings that Mr Murray breached sections 21A(2) and 64 of the Act and regulation 13(2) of the Regulations, under section 25(1)(a) of the Act, I determine that Mr Murray contravened or failed to comply with the Act and the Regulations.
2. For the reasons set out above and having regard to my earlier findings and reasons for decision, under section 25(1)(c) of the Act, I determine that Mr Murray has been guilty of conduct as an estate agent which renders him unfit to hold a licence.
3. I will direct that the matter is to be listed for a further hearing before me on the question of the appropriate orders to be made under section 28A of the Act.

[1] Proceeding Z188/2015, findings and orders made on 22 September 2015.

[2] Director of Consumer Affairs v Murray [2016] VCAT 612.

[3] CAV's supplementary submissions dated 11 March 2016 and submissions in reply dated 7 July 2016 and Mr Murray's submissions dated 30 June 2016.

[4] [1968] HCA 20.

[5] Applicant's supplementary submissions dated 18 May 2016, paragraphs 11 to 12.