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[2001] VCAT 1259
respondent. The decision of the Business Licensing Authority is affirmed. Liberty to apply within 14 days on the question of costs.
The applicant, convicted in the Magistrates' Court of two assaults and one assault by kicking, applied for permission under s 31C to be employed as an agent's representative. The Business Licensing Authority refused, and on review the Tribunal affirmed that refusal. The Tribunal held it must consider the circumstances of the offences but should not re-hear the criminal trial; after assessing witness credibility, the applicant's lack of demonstrated remorse and concerns about veracity, the Tribunal found the offences involved physical violence (including kicking) and that granting permission would be contrary to the public interest.
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John Mousikidis applied to the Business Licensing Authority for permission under section 31C of the Estate Agents Act 1980 to be employed as an agent's representative. The application was necessitated by convictions recorded against him in the Magistrates' Court (convictions on 4 May 1999 for two counts of assault and one count of assault by kicking arising from an incident in March 1998) [5]-[6]. The Authority refused permission on 31 October 2000, stating it was not satisfied that granting permission would be consistent with the public interest; the reasons noted inconsistencies between the applicant's account and police witness statements and questioned whether he was remorseful [2]-[3]. The applicant sought review before the Victorian Civil and Administrative Tribunal (VCAT). After a hearing that considered documentary material, character references, a psychological assessment, the Magistrates' Court materials and oral evidence from witnesses and the applicant, Deputy President Baker-Smith affirmed the Authority's decision to refuse permission [16]-[19], [41]-[43]. The Tribunal concluded that the offending involved acts of physical violence, including kicking, that the applicant had not demonstrated sufficient remorse and that, on balance, it would be contrary to the public interest to grant permission [28], [34], [41]-[42]. Liberty to apply in relation to costs was reserved [ORDER; 1-2; 44-45].
2 cited instruments linked from this judgment.
The decision rests on the statutory test in s 31C(3): the Authority may give permission if satisfied that it is not contrary to the public interest to do so [3]. Two core features determine the Tribunal's approach.
First, the Tribunal must take the circumstances of the offences into account when assessing public interest. The Tribunal relied on the guidance in Cichello (quoted at paragraph 8) and applied it to say that knowledge of the circumstances of the offences is essential because those circumstances bear directly on the risks and detriment members of the public may face if the applicant is permitted to act as an agent's representative [8], [10]. The Tribunal therefore examined witness statements and the record of the Magistrates' Court proceedings to understand the factual matrix leading to the convictions [10], [19], [28].
Second, the Tribunal emphasised procedure and scope: it is not an occasion for re-hearing the criminal case. The convictions were on the record and, after a two-day hearing in the Magistrates' Court, the Tribunal accepted the court had been satisfied to the criminal standard that the offences occurred. The Tribunal's inquiry therefore stopped short of re-litigating guilt but included appropriate limited examination of the applicant about circumstances, integrity and remorse [11]-[15]. That limited inquiry allowed the Tribunal to assess credibility and whether the applicant's present fitness to hold a regulated role met the public interest standard. On the evidence, the Tribunal preferred the independent evidence of Sergeant Annand over the applicant's account where they conflicted, accepted that the offences involved physical violence including kicking, and concluded that the applicant had not demonstrated sufficient remorse or candour [30], [34], [41]. These findings directly informed the public interest decision to refuse permission [41]-[42].
The Tribunal also acknowledged secondary considerations: sentence severity and the time elapsed since offending are relevant but subordinate to the fact-based inquiry into the circumstances of the offences. The relative recency of the offending (conduct March 1998, conviction May 1999) weighed against the applicant’s ability to demonstrate longer-term rehabilitation [35], [39]-[40].
Before this decision, the controlling principles included:
This VCAT decision applies and clarifies those principles in practice:
Thus, the decision operates within the existing framework established by Cichello and earlier authorities (for example Mario Inglese, cited at [20]) and demonstrates how VCAT balances respect for criminal determinations with its statutory protective function.
Paragraph 11: "In hearing the application under section 31C... it is not appropriate to... attempt to conduct a re-hearing of the criminal proceeding... The convictions imposed are on the record."
Paragraph 15: "Some examination of the Applicant... would be appropriate... not in the form... of what one would expect in a re-hearing..."
Paragraph 28: "I am satisfied that the circumstances of the offences... were constituted by acts of physical violence to 2 individuals, including the assault by kicking..."
Paragraph 41: "I have concluded that the conduct... is such that he cannot be seen as presently fit to be employed as an agent's representative."
This decision is directly applicable where:
In sum, where an applicant with a disqualifying conviction seeks a statutory exception, this case shows the Tribunal will (a) accept convictions rather than re-litigate criminal guilt, (b) assess offence circumstances and credibility, and (c) refuse permission if the evidence demonstrates present unfitness or insufficient remediation.
The judgment itself cites and builds on earlier authorities, in particular Cichello (which establishes that the Tribunal must take account of offence circumstances) and Mario Inglese (on the protective purpose of licensing decisions) [8], [20]. The Tribunal treats Cichello as instructive and follows its direction in practice [8], [10]. The decision also refers to a recent VCAT decision, Robbins, for the proposition that recency of offending affects an applicant’s ability to demonstrate rehabilitation [35].
This judgment is a practical application of those authorities in the VCAT context. The decision does not itself record subsequent appellate treatment. To determine how courts or tribunals after this decision have treated Mousikidis v BLA would require a targeted case-law search beyond the text of this judgment; the decision does, however, represent a clear application likely to be followed by other tribunals dealing with comparable s 31C applications because it reconciles evidentiary restraint with a necessary fact-sensitive public interest inquiry.
Several issues remain where the judgment provides limited guidance, leaving scope for future development:
Conclusion: Mousikidis v BLA applies settled law that the Tribunal must assess the circumstances of disqualifying offences without re-hearing criminal proceedings. It illustrates how credibility, remorse and the factual nature of violence inform a public interest decision under s 31C. The decision is a practical blueprint for tribunals balancing deference to criminal findings with their statutory protective role, while leaving open nuanced evidentiary and remedial questions for future cases.
Occupational and business regulation list - review of decision to refuse permission to be employed as an agent's representative - section 31C Estate Agents Act 1980
1. The decision of the Business Licensing Authority is affirmed.
2. Liberty to apply within 14 days on the question of costs.
For the Applicant: MR G Allwood, Solicitor, Kenyons Lawyers .
For the Respondent: Mr S Devlin, Solicitor, Consumer and Business Affairs Victoria
1. By "Application For Review of A Decision" dated 10 November 2000 John Mousikidis ("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 under section 31C of the Estate Agents Act 1980 ("the Act") to refuse the Applicant's application under section 31C of the Act for permission to be employed as an agent's representative. The decision of the Authority of 31 October 2000 was in the following terms -
"The Authority comprised of Ms Smith after considering Mr Mousikidis's application and a report prepared on behalf of the Director, Consumer and Business Affairs Victoria HEREBY DETERMINES_, pursuant to section 31C of the Act, to refuse to give its permission for Mr Mousikidis to be employed as an agent's representative as it is not satisfied that it is not contrary to the public interest for it to do so."_
3. A copy of the Authority's decision was sent to the Applicant by letter dated 31 October 2000. That letter was, in part, in the following terms -
"Application Pursuant to Section 31 C of the Estate Agents Act 1980
On 12 May 2000 the Authority received your application pursuant to section 31C of the Estate Agents Act 1980 (the Act) for permission to be employed as an agent's representative.
Your application acknowledged that it was necessitated by being convicted of unlawful assault and assault by kicking.
On 18 September 2000 I wrote to you enclosing, among other things, a report from Consumer and Business Affairs Victoria (CBAV) recommending against you being granted permission. The letter invited your submissions about a range of matters and in particular apparent inconsistencies between your version of the events surrounding the offences and those of the Victoria Police informant.
On 27 September 2000 you responded to this invitation to make submissions and the particular issues raised by the Authority. Following this the Authority received further information from the Victoria Police including witness statements relevant to the offences. On 6 October 2000 this material was forwarded to you. The letter stated as follows:
"On the basis of the information available to it, the Authority has serious concerns that it may be contrary to the public interest for it to grant you permission to be employed as an agent's representative.
The Authority's concerns are based on the circumstances of the assaults, the inconsistencies between the version of events you have described to the Authority and that contained in the statements taken by the police, and whether you are remorseful of your actions (as opposed to being regretful of having a police record)."
Your further submissions were invited and received on 10 October 2000.
Section 31C(3) of the Act provides that upon receipt of an application pursuant to section 31C(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 October 2000, the Authority gave further consideration to your application under section 31C of the Act for permission to be employed as an agent's representative. I advise that the Authority has refused to give its permission to you. 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 3IC(3) of the Act."
4. Sections 16 and 31C of the Act are, in part, in the following terms-
"16. Eligibility for employment as an agent's representative
(1) A person is eligible to be employed as an agent's representative if she or he -
(c) has not, 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;"
"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) A person in respect of whom permission has been given is eligible to act as an agent's representative, despite section 16(1)(c)."
5. The application to the Authority by the Applicant under section 31C of the Act was necessitated by the convictions imposed upon the Applicant by the Magistrates' Court of Victoria at Preston on 4 May 1999. The certified extracts from the court register in relation to the Applicant record that, further to the convictions imposed upon him, on each of 2 charges of assault and one charge of assault by kicking he was convicted and sentenced to an imprisonment term of 60 days concurrent with each other. The sentence was partially suspended with the term to be served being 14 days. On one of the assault charges he was ordered to pay $420.00 costs.
6. The Applicant only appealed against the sentences. In a declaration dated 9 May 2001 the Applicant stated "I didn't have the funds to appeal the decision and therefore the convictions remained." The result of that appeal, heard on 9 June 1999, was as follows -
The Appellant is convicted and sentenced to an aggregate term of imprisonment of 60 days. Sentence to be wholly suspended. Operational period is 12 months. Costs order not appealed."
7. The documents before the Tribunal included the material filed with the Authority by the Applicant in support of his application, including a number of references as to character, a psychological assessment , and a statutory declaration. Other documents before the Tribunal included the statements made by the victims of the assaults and others, and the record of interview between the police and the Applicant.
8. At the commencement of the hearing Mr Allwood observed that the Tribunal in considering the matter was required to take into account the circumstances of the criminal activity. In this context he referred to the decision of the Court of Appeal in Cichello v Estate Agents Licensing Authority (1998) 13 VAR 177. The following passage from the judgment of Buchanan J A at page 183 provides clear guidance as to the Tribunal's role -
"In determining whether it was satisfied that it was not contrary to the public interest to give permission under section 31C(3) the Tribunal, in my opinion, was required to take into account the circumstances of the offence. Those circumstances bore directly upon the question of the risks and detriment to which members of the public were exposed to the appellant conducting the business of a real estate agent. Other factors may also affect the nature and degree of risk of harm to members of the public posed by a violent offender acting as an estate agent, but the starting point must be the circumstances constituting the offence of violence upon which s 14(5)(e) of the Act operates."
9. Mr Allwood submitted that there were "mechanical problems" with that analysis where a defendant had pleaded not guilty. He informed me that he did not intend to lead the Applicant through the proceedings in the Magistrates' Court. He submitted that, further to Cichello, the issue was how far the Tribunal needed to go to become acquainted with the circumstances of the criminal activity.
10. It is clear from Cichello that the Authority, and on review this Tribunal, in considering an application under section 31C of the Act is required to take into account the circumstances of the offences. It is apparent from the material before me that after a hearing over 2 days in the Magistrates' Court, the Court was satisfied to the criminal standard that the Applicant had committed the offences for which he was convicted.
11. In my view, in hearing the application under section 31C of the Act, it is not appropriate to, in some way, attempt to conduct a re-hearing of the criminal proceeding in the Magistrates' Court. The convictions imposed are on the record. They are the matters that necessitated the Applicant's application to the Authority and on review to this Tribunal. This is not an appeal from the decision of the Magistrates' Court. However, and further to Cichello, it is clearly relevant to know something of the circumstances of the offences that necessitated the Applicant's application.
12. There is evidence before me as to the circumstances of the offences in this case. The 2 road workers found to have been assaulted by the Applicant provided statements in relation to their version of the events. An off-duty police officer within the vicinity at the time provided a statement. I was provided with these statements. Each of these witnesses gave evidence at the Magistrates' Court. The Applicant's position in relation to the incident is set out in his record of interview with the police and elsewhere in other documents before me. I understand his evidence before the Court was that, in relation to the 2 assaults, he had acted in self defence. He denied the assault by kicking charge. I refer later in these reasons to the Applicant's evidence before the Tribunal.
13. I must conclude that the defence of self defence if raised before the Magistrates' Court was not accepted. Otherwise there would have been an acquittal. In relation to the charge of assault by kicking the Applicant denied the charge. That offence was found proven.
14. Mr Devlin informed me that he did not intend to "re-litigate" the court proceedings, but submitted that he ought be allowed to cross-examine the Applicant in relation to some of the matters that took place in relation to the events leading to the convictions. The Applicant had provided certain explanations which, he submitted, went beyond issues of self-defence. Mr Devlin put that these matters should be explored because one of the considerations of the Tribunal would be to assess the "integrity" and "veracity" of the Applicant in the context of his capacity to act as an agent's representative. He submitted that the issues of veracity and propensity to violence should be explored, as they were relevant to the issue of the public interest in the context of section 31C of the Act.
15. I informed the parties during the hearing that I considered that some examination of the Applicant in the hearing as to the nature and circumstances of the offences would be appropriate. I further observed that I did not expect the cross-examination of the Applicant in relation to these matters to be in the form or nature of what one would expect in a re-hearing of the criminal proceedings. Nor did I expect that the cross-examination would go into the minutiae of all the allegations made by the police.
16. Mr Brown's evidence included evidence to the following effect. He stated that he was a licensed estate agent. He had auctioned a property bought by the Applicant, and the Applicant had expressed some interest in joining the real estate industry. From his dealings with the Applicant as a client he thought the Applicant may be suitable to join his estate agency business. He found the Applicant pleasant to deal with. He was aware of the incident that occurred which gave rise to the Applicant's convictions for assault and assault by kicking.
17. The Applicant's evidence included evidence to the following effect -
* He was a security officer, and wanted to join the estate agency industry further to dealings he had with a number of estate agents whilst looking to purchase a home. He had attended a lot of auctions and had developed an interest in the industry.
* He acknowledged that interpersonal skills were important for a real estate agent. He had approximately 10 years experience in the security/surveillance industry. He had "lost the zest for surveillance". He had back problems which presented difficulties for his work and he "had to look at another career". He had an interest in real estate and thought it would be a "great career to see me out the rest of my years".
* He had completed the agent's representative course in approximately September 1999. The course was conducted over 2 nights per week for a period of 6 weeks and included assignments and tests.
* His surveillance work had involved him in disputes over a number of years. He had been harassed whilst on the job. One needed good communication skills to be able to diffuse difficult situations in investigations and security work. He had not been assaulted and had many times talked himself out of being assaulted.
* He currently held an inquiry agent's licence, having held that licence for approximately 11 years. The licence was renewed annually. He visited the Private Agents Registry when he renewed his licences. He provided details of the charges and the convictions. He was interviewed about those matters. His inquiry agent's licence was subsequently renewed, as was the firm security licence.
* He believed he was of good character. He had always tried to do the right thing by people and help people.
* In relation to the March 1998 incident, he had a version of what occurred that day. He had put that version to the Magistrates' Court. He had been convicted. He appealed the sentence of the court, not the conviction.
* It was not in his character "to go out and hit somebody". He was "not that sort of a person". He did not dispute that an altercation took place. Punches were thrown by the road workers and by himself. He did not kick anyone. There was swearing "from both sides". He was "definitely not" proud of what had occurred on that day.
* In his current security industry position he supervised approximately 25 staff who attended to patrons, and their complaints, and performed security duties at a major event and sporting venue. Where staff were not able to resolve disputes, he could be called down to do so. His role included overseeing groups such as officials, coaches, players and media at any sporting and major event held at the venue.
* He did not dispute that on the day of the incident he went through a road closed sign, however he wasn't "completely aware that the road was closed because of the fact that it wasn't closed properly". He did not dispute that when the road workers told him to stop and go round and go back they were entitled to say that to him. He agreed that in not doing so he did the wrong thing. He did not show good judgment.
* He was referred to the following questions and answers in the record of interview conducted with him by the police, namely "Q 43 When you got to the intersection of Clinch Avenue which is this back street you're talking about and Murray Road what did you see? A There was a ah there was a sign saying ah road closed.", and "Q 46 So the sign said the road closed and there were cones across the road. Would that be right? A There were signs across the road". He agreed that these questions were asked and the answers given.
* In his statutory declaration of 9 May 2000 filed with the Authority in support of his application he stated that "The road workers sustained no injuries, cuts or bruises and immediately returned to work after giving their statement that day." In his letter of 27 September 2000 to the Authority he stated that one of the victims stated in his evidence in chief that he had bitten his tongue, and the other witness stated that he "only had minor cuts on his hands possibly from falling over or from the punches he gave me." He did not think that somebody biting his tongue was an injury. He thought he was being forthright to the Authority.
* The assaults took place after somebody had kicked his car. When he got out of the vehicle on the first occasion nothing happened. He had spoken to the road workers. One had said he had to go back. He had said he did not realise that the road was closed. He continued on. He informed them that if he had done the wrong thing they could take down his registration and report it to the police. Then he got back in his car reversed back drove around them and his car was kicked. He got out of his car the second time to inspect whether there was any damage and that was when one of the road workers approached him. A fight occurred. He threw punches in self defence. He did not recall telling one of the workers to "fuck off". He denied driving his vehicle at the road workers.
* He had feelings of remorse in respect of the physical activity with the 2 road workers that involved punches being thrown by him and he receiving punches. The Private Agents Registry had not had a complaint against him in all the years that he had been working in the security/surveillance industry.
18. His evidence included evidence to the following effect. He was a Detective Senior Constable of Police attached to the tactical response squad and was the informant against the Applicant in relation to the assault charges. His written statement was true and correct. That statement records, among other things, that he had attended the scene after the incident, and had later conducted a record of interview with the Applicant.
19. His evidence included evidence to the following effect. He was a Sergeant of Police attached to the force response unit. His written statement dated 4 May 1998 was true and correct subject to correcting the sentence that stated that the Ford Telstar turned left from Clinch Avenue into Murray Road. It had turned right into Murray Road. There was nothing impeding his view of the altercation from where he was standing on the footpath. However, the Applicant's vehicle impeded his view in relation to certain incidents the subject of allegations made at the court hearing. That statement records, among other things, -
"On Sunday, the 29th of March, 1998, I was off duty and had been shopping at Safeway Supermarket in Murray Road, Preston. I had parked my private vehicle in the Preston Market car park because of road works being carried out on Murray Road between St Georges Road and High Streets. Access to Murray Road from the surrounding streets and car parks was blocked by detour signage and traffic controllers.
At about 11.45am, I was returning to my car crossing Murray Road on foot when I saw an aqua Ford Telstar turn left from Clinch Avenue into Murray Road to travel in a westerly direction. There were several yellow traffic diversion signs in Clinch Avenue at the intersection with Murray Road. I saw a two traffic controllers standing on the railway crossing and one indicated for this car to turn around but the driver stopped. I completed crossing Murray Road and heard a male yelling loudly. The yelling drew my attention to the car driver and the traffic controllers. I was about 70-80 metres away and could hear the male driver yelling at the traffic controllers, telling them to "Fuck off, I'm going through." I couldn't hear what the traffic controllers were saying but they appeared to be telling the driver to turn around and drive back into Clinch Avenue. The car motor revved and moved forward quickly causing one of the workers to take evasive action. The worker seemed to jump back but also fall forward toward the drivers side bonnet area. The male driver then got out of the car and seemed to be exceptionally aggressive. He continued to yell at the two workers telling them to "fuck off". An altercation between the driver and the workers took place. It appeared to me from the distance that the driver was the aggressor, he pushed one worker a couple of times and then hit him. The second worker then became involved and a short fight ensued. The driver knocked the second worker to the ground and I couldn't see anything else because the Ford Telstar was between me and the fallen worker. I had started to walk toward the fight to assist the road workers but the fight broke up as I approached. The male driver then got back in his car and drove a short distance but again stopped his car. He got out and seemed to look at something on the car. He then got back in the car and drove away turning into St Georges Road heading toward the city."
20. 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 1989) 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."
21. Further to Cichello, Mr Allwood correctly submitted that the Tribunal was required to consider the circumstances of the offences which gave rise to the ineligibility. He referred to his earlier submissions regarding the difficulties that presented where an applicant had pleaded not guilty.
22. He submitted that the Applicant had pleaded not guilty to the assaults of which he was convicted and that he maintained a very strong view about the events which led to the physical altercation between the parties. The Applicant had been steadfast about that. It was submitted that the injuries to the victims were minor and that the Applicant was "a receiver as well as a giver" in the altercation. The Applicant had not appealed the conviction, but only the severity of the sentence.
23. Mr Allwood further submitted that I should confine myself to the circumstances of the matters that gave rise to the charge. He submitted that I did not need to delve into matters such as the location of the barriers on the road. There had to be some limit to what the test of circumstances was. The Applicant was not charged with a driving offence.
24. Mr Devlin submitted that the seriousness of the allegations and the convictions were not limited to the injuries, but started with the Applicant receiving lawful directions to desist his conduct with which he did not comply.
25. In my view the circumstances leading up to the offences for which the Applicant was convicted are relevant in this proceeding. However, having said that, it is clearly the conduct of the Applicant in relation to the actual offences for which he was convicted that is most relevant. The nature of that conduct is in dispute.
26. Mr Allwood submitted that in the proceeding before the Tribunal there had been a "mini rehearing" about certain aspects of the matters. He submitted that the Applicant in his evidence was impressive. The Applicant had made concessions. The Applicant had conceded that as to the question of judgment on the day in question he was in the wrong. He submitted that the Applicant had demonstrated an openness and a strength in the way in which he had maintained his version, and a consistency.
27. Mr Devlin submitted that this was a case of 2 workers lawfully doing their job being assaulted. He submitted that the evidence was that the violence was spontaneous and prolonged to an extent, there was evidence of swearing, of revving the car, 2 separate assaults and kicking a man whilst on the ground.
28. I am satisfied that the circumstances of the offences for which the Applicant was convicted were constituted by acts of physical violence to 2 individuals, including the assault by kicking of one of the victims. I am satisfied injuries were suffered. It is fortunate that the injuries were not serious.
29. The evidence of Detective Senior Constable Boyer was of limited assistance to me. He did not witness the incident. The content of the record of interview he conducted with the Applicant was not in dispute.
30. Mr Allwood submitted that in relation to Sergeant Annand's memory and particularisation of the location of the road barriers, there was a basis for it because of his experience, but it was "an improbable situation". He was on a day off. He was a long distance away. He gave evidence as a police officer not as a lay witness. Mr Devlin submitted that the criticism of Sergeant Annand was "totally uncalled for" and that the Tribunal should have no hesitation in accepting the evidence of Sergeant Annand. I found Sergeant Annand to be an impressive witness. His evidence was clear and precise. He was an independent witness. Where Sergeant Annand's evidence differs from the Applicant's version of the events, I accept Sergeant Annand's evidence.
31. Mr Allwood submitted that in the context of the public interest the Tribunal must look at factors other than the circumstances of the offences which necessitated the application. He referred to Cichello, and the passage from the judgment of Buchanan J A reproduced at paragraph 8 of these reasons. He submitted that in this case the criminal offence was a "snapshot" over a short period of time and a person should not be "labelled for life or for the balance of a period of time if it is a substantial period of time on that alone". The "other factors" to be considered included the character of the Applicant. In this context I was referred to the references filed in support of the application. I was also referred to the Applicant's work history. Mr Allwood submitted that for a man of his age the Applicant had had very substantial exposure to "highly combustible people and highly combustible circumstances". The Applicant had apparently dealt with this work environment in a better than satisfactory manner. He submitted that this needed to be weighed up against the errors that were made on the day of the offences. I have given consideration to these matters and taken them into account.
32. Mr Allwood contended that, in a general sense, the sorts of concerns of the Private Agents Registry were not dissimilar to concerns that this Tribunal had to deal with, and the Applicant had retained his licences under the Private Agents Act
1966. He submitted that there was an affinity or compatibility between the areas of work the Applicant did and what he wished to do in real estate. He had demonstrated a capacity to deal with people. His interpersonal skills were good. Mr Allwood properly conceded that these skills were not good on the day of the offences.
33. Mr Devlin submitted that on the Applicant's version "the violence in this matter remains unexplained". He submitted that on the evidence before the Tribunal at this time there was still a risk of violence in circumstances where there was no evidence of remorse. He referred to the following passage in the Applicant's letter to the Authority of 10 October 2000 -
"There are inconsistencies between my version of events and that of the Crowns. Being alone in the incident made my version of events principally unsupported. To say now I am remorseful for what happened after pleading not guilty to the charges would be what you may want to hear but I would simply be a hypocrite."
34. In considering the question of remorse I have, of course, taken into account my impressions of the Applicant in his evidence before the Tribunal. I have previously stated that I prefer the evidence of Sergeant Annand to that of the Applicant where their evidence differs. I am not satisfied as to the Applicant's remorse for his conduct.
35. Mr Allwood submitted that the incidents that produced the ineligibility occurred approximately 3 years ago. There were no others and none since those incidents. The period of time that has elapsed since the commission of the offences and the court proceedings is a relevant consideration in proceedings such as this. The Applicant was convicted of the offences in May 1999. The conduct occurred in March 1998. I take these matters into account. As stated by the President, Justice Kellam, in Robbins v Business Licensing Authority (VCAT, unreported, 22 February 2000, No V59/1999) -
" . . . 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 . . . 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."
36. Mr Allwood submitted that if I accepted the circumstances as he had urged me to do, and I looked at the circumstances of this case, there was plenty of material for the Tribunal to find that the granting of this application would not be contrary to the public interest. He further submitted that I should not accept the prosecution circumstances, but even if I did so "at their worst" against the Applicant, one arrived at the same conclusion. In other words the "other factors" outweighed the circumstances that must be accepted as in dispute. He submitted that there was significant material for the Tribunal to find that the application if granted would not be contrary to the public interest.
37. Mr Devlin submitted that there were statements in the second paragraph of the Applicant's statutory declaration of 9 May 2000, filed by the Applicant with the Authority in support of his application, which showed that "the Applicant has not been forthcoming . . . (in) statements made to the . . . Authority". He referred to 3 "examples". First, the statement that the road closure "was not clearly marked". Second, that the Applicant was convicted in the Magistrates' Court "as there were several fellow road workers who stated (the Applicant) was the aggressor even though all their stories were different and contradicting". Finally that "the road workers sustained no injuries, cuts or bruises". He submitted these matters demonstrated that the Applicant had not been forthcoming to the Authority. Further, that these matters went to the integrity or veracity of the Applicant.
38. Mr Devlin submitted that there was clear evidence before the Tribunal as to the propensity of the Applicant to be untruthful. He submitted that I should have real concern as to the veracity of the Applicant both in his lack of disclosure of information to the Authority and his evidence before the Tribunal together with the unexplained violence without any remorse. The real estate industry was a consumer based industry where an agent's representative was placed in a position of trust or power. He submitted that the Applicant had not satisfied the Tribunal in relation to his application.
39. Mr Devlin submitted that the seriousness of the offences was reflected by the sentence imposed by the County Court. He submitted it would be improper of me to not take into account the seriousness of the sentence. Mr Allwood agreed that the Tribunal must take into account the sentence imposed by the County Court.
40. Whilst I consider that the penalty imposed by the court is a matter to be taken into account, it is clear from Cichello that the focus of the Tribunal must be on the circumstances of the offences.
41. I have concluded that the conduct of the Applicant leading to the convictions imposed in May 1999 is such that he cannot be seen as presently fit to be employed as an agent's representative. I do not accept that the circumstances of the offences were as described by the Applicant. I am satisfied that the circumstances of the offences of assault were, in substance, as detailed in the statement of Sergeant Annand reproduced at paragraph 19 of these reasons. I also accept the statements of the road workers that one of them was kicked a number of times by the Applicant.
42. Further to my findings and conclusions as detailed above, and further to the provisions of section 31C, I am not satisfied that it is not contrary to the public interest for the Applicant to be employed as an agent's representative.
44. I have given some preliminary consideration to the question of costs.
45. 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 of the date of these reasons.
Mousikidis
BLA [2001] VCAT 1259
The decision of the Business Licensing Authority is affirmed. Liberty to apply within 14 days on the question of costs.