The applicant was convicted of several offences against the Development Act 1993, assault, and a breach of bail offence. Other findings were made relevant to the applicant's fitness and propriety.

• The gravity and repetition of the applicant's conduct, and its connection to her work as a land agent, mean that the applicant is unable to satisfy the Tribunal that she is a fit and proper person.
• The applicant's registration poses an unacceptable risk to public faith in the profession of land agents and the registration process.

Administrative Review - Land Agents Act 1994 - Review of a decision by the Commissioner for Consumer Affairs - To refuse an application to be a registered land agent - Not a fit and proper person

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37, 39

Land Agents Act 1994 ss 4, 8, 8D, 9

Re RBY [2021] SACAT 39

Commissioner for Consumer Affairs v Property Management Specialists Pty Ltd (in liquidation) [2006] SADC 15

Commissioner for Consumer Affairs v Taza Pty Ltd [2011] SADC 192

Commissioner for Consumer Affairs v Overduin [2012] SADC 32

Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd [2013] SADC 131

Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387

Commissioner for Consumer Affairs v McCurdy [2004] SADC 174

Australian Broadcasting Tribunal v Bond [1990] HCA 33

Re Collins and Estate Agents Board (1994) 7 VAR 394

Commissioner for Consumer Affairs v Capponi [2004] SADC 169

Commissioner for Consumer Affairs v McCurdy [2004] SADC 174

Commissioner for Consumer Affairs v Kilsby [2004] SADC 179

Sobey v Commercial Agents Board (1979) 22 SASR 70

D'Orazio v Registrar of Firearms [2018] SACAT 15

Commissioner for Consumer Affairs v Marley-Duncan [2019] SADC 154

Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd [2013] SADC 131

Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28

Rural City of Murray Bridge v Shires [2020] SAERDC 22

Rural City of Murray Bridge v Shires (No 2) [2020] SAERDC 31

Ms H Nikoloff and Ms V Montandon, Crown Solicitor's Office, for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. This is an application made by Ms Shires under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 and s 8D of the Land Agents Act 1994 (LA Act) for review of a decision of the Commissioner for Consumer Affairs (the Commissioner)[1] made on 23 April 2021 under s 8 of the LA Act to refuse Ms Shires's application to be registered as a land agent.

2. The Commissioner considers that Ms Shires is not a fit and proper person to be registered as a land agent. Ms Shires disagrees with the Commissioner and asks that the Tribunal overturn the Commissioner's decision.

3. The Tribunal has had regard to the large amount of material contained in the Respondent's Book of Documents, Supplementary Book of Documents, Further Supplementary Book of Documents and Book of Additional Evidence; to the extensive written and oral evidence put before the Tribunal by Ms Shires;[2] and to the written and oral submissions of Ms Shires and the Commissioner for the full hearing conducted on 13 October 2021 (at which Ms Shires was unrepresented).

4. Ms Shires provided the Tribunal with a large amount of written material not all of which was strictly relevant or of assistance to the Tribunal in determining this review. Rather than deal with the admissibility of each item individually at the hearing, in the interests of efficiency, the Tribunal has now considered each item and has determined its relevance and what weight should be placed on it for the purpose of its decision.

5. All factual findings made in this decision are drawn from oral or written evidence provided to the Tribunal by the parties but for the sake of brevity the Tribunal has refrained from citing individual sources in footnotes.

6. For the following reasons, the Tribunal considers that the decision made on 23 April 2021 to refuse Ms Shires's application for registration as a land agent is the correct and preferable decision and that it should be affirmed.

7. Ms Shires was tearful for most of the full hearing in this matter and the Tribunal provided Ms Shires with opportunities to take a break and compose herself. Ms Shires told the Tribunal that she has a commitment to improving the residential housing sector in the South Australian region in which she lives. The Tribunal does not take lightly any decision affecting a person's livelihood. The Tribunal realises it is likely that Ms Shires will be disappointed and distressed to learn of the Tribunal's decision. The Tribunal's reasons are set out in some detail to assist Ms Shires to understand the reasons for its decision.

8. Ms Shires was granted registration as a land agent on 2 June 2015. This registration was cancelled in November 2017 due to Ms Shires's failure to lodge a trust account audit.

9. In August 2018, Ms Shires was again granted registration as a land agent.

10. On 22 January 2020, following a complaint received about Ms Shires, the Commissioner appointed a firm called Bentleys to carry out an examination of Ms Shires's trust account for the period from 1 August 2019 to 31 January 2020.

11. On 13 March 2020, Bentleys undertook a trust account examination of Ms Shires trust account and provided a report to the Commissioner's office on 27 April 2020. Bentleys found 37 issues with Ms Shires's trust account including numerous failures to provide Bentleys with documents required for the examination and numerous deficiencies in record keeping. This is discussed in more detail under the heading "Offences and other conduct" below.

12. In 2020, the Commissioner's office issued Ms Shires with an annual renewal notice requiring Ms Shires to file an annual return under s 9(4) of the LA Act before 31 July 2020, to pay a renewal fee and to submit a trust account audit. Ms Shires was given to 31 October 2020 to comply with the requirement to lodge a trust account audit. Ms Shires was also given until 30 November 2020 to file the annual return.

13. On 10 July 2020, Ms Shires was convicted in the Environment, Resources and Development Court (ERD Court) of seven offences against the Development Act 1993. This is discussed in more detail under the heading "Offences and other conduct" below.

14. On 1 October 2020, the Commissioner wrote to Ms Shires to provide her with an opportunity to respond to his concerns that, by reason of her recent ERD Court convictions and her failure to keep trust account records and supply Bentleys with the information required for their examination of her trust account, she may not be a fit and proper person to hold registration as a land agent ("Show Cause Notice").

15. On 22 October 2020, Ms Shires was charged with two counts of assault and was remanded to the Adelaide Women's Prison. These charges are discussed in more detail under the heading "Offences and other conduct" below.

16. On 28 October 2020, Ms Shires was granted bail on conditions that included that she not contact, communicate or be in the vicinity of the two victims of the offending.

17. On 29 October 2020, Ms Shires responded to the Commissioner's Show Cause Notice to say that the sentence imposed by the ERD Court was being dealt with by the Supreme Court and further indicated, broadly speaking, that the issues with the trust account examination were not a priority for her and were for others to resolve.

18. On 21 November 2020, Ms Shires was charged with one count of failing to comply with the bail agreement in respect of the assault charges.

19. On 23 February 2021, Ms Shires's registration was cancelled by force of law due to her failure to lodge the annual return and fee. Ms Shires had also not filed a trust account audit.

20. On 30 March 2021, the Commissioner appointed Bentleys (SA) Pty Ltd as the administrator in respect of Ms Shires's trust account under s 16 of the LA Act and also appointed Coleman Property Adelaide Hills ("Coleman") as the temporary manager under s 17 of the LA Act in respect of the conduct of Ms Shires's business, Mount Barker Property Management.

21. On 2 April 2021, Ms Shires applied for registration as a land agent.

22. On 23 April 2021, the Commissioner refused Ms Shires's application on the grounds that she was not a fit and proper person to be registered as a land agent. The Commissioner made reference to the ERD Court convictions and Ms Shires's failure to lodge a trust account audit. It is from that decision of the Commissioner that Ms Shires seeks this review by the Tribunal.

23. On 13 May 2021, Ms Shires was made the subject of an interim Intervention Order on the application of the temporary manager of her business. The order was granted to protect the principal of Coleman and three employees of the principal. This is discussed in more detail under the heading "Offences and other conduct" below.

24. On 20 July 2021, Ms Shires was sentenced in the Murray Bridge Magistrates Court on the two counts of assault and one count of breach of bail. Ms Shires entered guilty pleas in relation to all three charges and was sentenced to a $200 bond to be of good behaviour for 18 months. No convictions were recorded.

25. On 2 September 2021, the Intervention Order was confirmed and made final in Ms Shires's absence.

Land Agents Act 1994

26. The South Australian Parliament has by statute heavily regulated matters relating to the real estate sector in this State, including residential and commercial land transactions; residential and commercial tenancies; land use and development; and the related professions, including conveyancers, surveyors and land agents. This is clearly for various reasons, including the critical role that land plays in the economy of the State; the significant personal financial investment involved in owning land; the potentially large sums of money involved; and the need to make provision for safe and secure residential accommodation. But it also reflects the need to protect the general public in a sector with often unequal power structures, such as those between persons who have land (landlords and vendors) and those who may not (tenants and purchasers) and are therefore vulnerable, and between those who are in positions of trust (such as conveyancers and land agents) and those who must trust them (vendors, purchasers, landlords and tenants) and who are therefore also vulnerable.

27. The LA Act is therefore part of a suite of legislation that aims to protect the integrity of the real estate sector and the interests of consumers.

28. A person is an agent under the LA Act if the person carries on a business that consists of or involves selling or purchasing or otherwise dealing with land or businesses on behalf of others, or conducting negotiations for that purpose, or selling land or businesses on their own behalf, or conducting negotiations for that purpose.[3]

29. Relevantly, it is an offence under the LA Act for a person to carry on business or hold themselves out to be a land agent unless registered as an agent under that Act.[4] Briefly, a person is entitled to be registered as a land agent if they have certain qualifications; have not been convicted of offences of dishonesty; are not suspended or disqualified from practising or carrying on an occupation, trade or business; are not an insolvent; and are a fit and proper person to be registered as an agent.[5]

30. It is well established that the objects of the LA Act are to regulate the conduct of persons registered under the Act; to protect the general public against unqualified and disreputable persons; and to maintain proper standards of conduct, rather than to punish the person whose conduct is the subject of criticism.[6]

31. The Tribunal is satisfied that the LA Act evinces the intention that registration as a land agent is a privilege, not a right, and that the provisions of the LA Act are not preconditions to the exercise of a right.

32. The only relevant issue between the parties in these proceedings is whether Ms Shires is a fit and proper person under s 8(1)(f) of the LA Act to be registered as an agent.

33. The work of land agents involves receiving and holding on trust money that belongs to others. It involves strict compliance with the statutory regime established to protect those who must rely on and trust the land agent and who for that reason are vulnerable. As the Commissioner observed in written submissions, it involves unsupervised access to real and personal property belonging to others, such as when conducting property inspections. The vocation of land agent therefore necessarily involves a high level of personal honesty and integrity, where the interests of the public outweigh the interests of the individual agent.[7] It is against this high standard that Ms Shires's fitness and propriety to be registered as a land agent is to be judged.

34. The phrase "fit and proper person" is common in licensing regime legislation in this State, particularly legislation regulating trades and professions and including legislation administered by the Commissioner. The meaning of the phrase has received considerable judicial attention. The Tribunal is satisfied that, provided regard is given to the different considerations relevant to fitness and propriety that pertain to different vocations,[8] it is appropriate to have regard to the judicial commentary in a general sense.

35. Justices Toohey and Gaudron said in the High Court:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[9]

36. The Tribunal respectfully adopts the other general legal principles relevant to fitness and propriety articulated in the authorities. These are that:

1. licensing legislation is primarily concerned with the protection of the public, deterrence of others, but not punishment of individuals;[10]
2. the concept of fitness and propriety extends to the three characteristics of honesty, knowledge and ability in the statutory context and qualifications relevant to the particular vocation;[11]
3. the onus of demonstrating fitness and propriety is on the applicant[12] (not on the decision-maker to disprove fitness and propriety);
4. a person must show not only that they are possessed of a requisite knowledge of the duties and responsibilities devolving upon them as the holder of a particular licence but also that they are possessed of sufficient moral integrity and rectitude of character as to permit them to be safely accredited to the public without further enquiry as a person to be entrusted with the sort of work which the licence entails;[13]
5. the very purpose of the words "fit and proper person" is to give the widest scope for judgment and indeed for rejection;[14]
6. consideration is to be given to whether the conduct of the person manifested qualities, or the absence thereof, incompatible with the carrying on of the relevant occupation, which qualities are essential for the carrying on of that occupation, and the conduct is to be assessed objectively in the context of the role and circumstances in which the person operates;[15]
7. the degree to which a person has done something which could reasonably be regarded as disgraceful or dishonourable by others in their licensed grouping is also a relevant consideration;[16]
8. previous relevant breaches of the law and any propensity towards offending are of crucial importance;[17] and
9. weight must be given to matters which are relevant and not peripheral to the vocation in issue.[18]

Review under s 34 of the South Australian Civil and Administrative Tribunal Act 2013

37. The Tribunal conducts its review of the Commissioner's decision as an independent body. The Tribunal will, in exercising its review jurisdiction, examine the decision of the decision-maker by way of rehearing. On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.

38. The procedure on a rehearing will include an examination of the evidence or material before the decision-maker and consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.

39. Any factual findings made by the Tribunal must be established on the balance of probabilities.

40. After making its decision, the Tribunal can affirm or vary the decision under review or can set the decision aside and either substitute its own decision or send the matter back to the decision-maker for reconsideration.

41. It is fair to say that Ms Shires was of the belief that this Tribunal has broader powers than it actually does in deciding this matter, including in the remedies that it can award such as mandatory injunctions against the Commissioner and other third parties and for the payment of compensation. Ms Shires was reminded during the hearing that the Tribunal does not have these powers.

Offences against the Development Act 1993

42. The Tribunal adopts relevant findings made by the learned ERD Court judge in respect of Ms Shires's convictions for seven offences against the Development Act. The Tribunal is entitled to do so under s 39(1)(b) of the South Australian Civil and Administrative Tribunal Act 2013 which states that the Tribunal may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal).

43. The Tribunal considers that it is appropriate to rely on the ERD Court findings because the findings are recent and relevant to Ms Shires's honesty and integrity and because the ERD Court judge made findings on the criminal standard of beyond reasonable doubt after a six day trial at which Ms Shires (who was unrepresented) gave evidence herself.

44. The ERD Court judge's reasons are lengthy and comprehensive.[19] It is not necessary to set out the judge's findings in detail only to identify the following findings that are relevant to this Tribunal's decision:

1. Ms Shires was found guilty of offences relating to the installation by her on vacant land that she owned at Murray Bridge of a transportable building and an amenities block to be used by her for lease to others for commercial and residential purposes. This activity occurred over 18 months across 2017 and 2018 and involved considerable site works;
2. She was convicted of four counts of unauthorised development and unauthorised land use in respect of the transportable building and amenities block; two counts of failing to comply with a notice to remove the transportable building, amenities block and associated works, and to stop the unauthorised development on the land; and one count of hindering or obstructing an authorised officer of the Rural City of Murray Bridge (RCMB) who was inspecting the land;[20]
3. Ms Shires did not remove the transportable building and amenities block and continued to undertake associated site works and general improvements on the land despite the notice requiring her to stop unauthorised development;
4. the hindering offence occurred in circumstances where Ms Shires held the arm of one of the authorised officers inspecting the land and "guided" or "shepherded" the officer off the land preventing the officer from carrying out lawful duties to investigate suspected breaches of the Development Act. In respect of another authorised officer also present on that occasion, Ms Shires picked up a long-handled spade or shovel and swung it from around head height and struck a glancing blow across the top of the officer's buttocks;
5. Ms Shires characterised the authorised officers as trespassers as they had not sought her permission to attend at the property and had not received a "safety clearance";
6. She told the ERD Court judge that she considered the RCMB had treated her differently from other ratepayers and had failed to work with her to reach a solution in respect of the development. She said she had been treated adversely by the RCMB compared to other applicants for development; that there had been unreasonable and unfair delay by RCMB in dealing with her applications and that had been the source of the difficulty she found herself in; and that there was a vendetta pursued against her by staff of the council.
7. Ms Shires advertised the property as being available for lease, and then did lease the property, to commercial and residential tenants during the period of her offending against the Development Act and while she was still undertaking the site works and other improvements on the land;
8. In the period between delivery of the verdicts on 10 July 2020 and sentencing on 4 September 2020, Ms Shires sought development approval from the RCMB to remove the transportable building and amenities block and replace them with a single transportable building. The necessary development plan consent was granted but not the necessary building rules consent. Ms Shires declined to provide the RCMB the further information requested by the RCMB relevant to the building rules consent. She removed the transportable building and amenities block and placed the new transportable building on the land. This was despite Ms Shires being told by the RCMB several times that she could not do so and being issued with a formal notice by the RCMB to the same effect.
9. Ms Shires told the ERD Court judge that it had been the RCMB that had held everything up; other persons in Murray Bridge had either got approval to do what she had done or had been allowed by the council to do what she had done without approval; she had been harassed and treated differently by council; and that she relied on the council to do the work they were required to do, the council had failed to process her application and she was treating them in the same way they had treated her and had therefore refused to give the council the paperwork or the information that they said they needed;
10. Ms Shires said that an ongoing dispute with the council concerned the assessment and payment of rates and complaints she had made about neighbours which the council had done nothing about;
11. In sentencing Ms Shires for the offending, the ERD Court judge found:
    1. Ms Shires's offending harmed the community. She knowingly and repeatedly ignored and disregarded the planning and building approval regime;
    2. Ms Shires has shown no remorse for her offending and has not accepted responsibility for her actions and has demonstrated no insight into her behaviour; she has not exhibited any sign that her rehabilitation has commenced; she is not contrite; and it is very likely that Ms Shires will reoffend;
    3. Ms Shires was clearly informed by council and capable of understanding what was required of her by council but was motivated by profit and commercial gain to obtain leasing income from the land irrespective of her obligations under the Development Act;
    4. While Ms Shires removed the buildings the subject of her offending, she replaced those buildings with another authorised development in the face of a clear direction from the council that she should not do so; and
    5. In court, Ms Shires when challenged or unable to provide an answer in her interest, or when required to make a concession against her interest, would make a "noisy fuss and resort to profanity, adopt an aggressive physical posture and blame others".

45. Ms Shires largely admitted, or did not dispute, the various factual allegations made against her at trial and during sentencing.

46. The ERD Court judge did not accept Ms Shires's assertions against the RCMB. The judge said that Ms Shires justified her non-compliance as a response to perceived historical wrongs against her. The judge found that Ms Shires had not accepted that it has been her responsibility to comply with the Development Act and that her failure to do so had led to the non-approvals she complained of and her offending.

47. The ERD Court judge imposed on Ms Shires a substantial pecuniary penalty of $114,800 plus costs, which penalty (only, not conviction) the Tribunal understands is presently under appeal to the Supreme Court. The penalty is not given significant weight in the Tribunal's determination of this review. Sentencing considerations under the Sentencing Act 2017 are different from those that are relevant under the fitness and propriety test for registration as a land agent under the LA Act.

48. During the hearing before the Tribunal, Ms Shires was critical of the learned ERD Court judge and implied that her present predicament was as a result of being unfairly treated by a judge who was new to the bench and inexperienced. The Tribunal found Ms Shires's repeated assertions against the learned judge to be inappropriate and asked her to cease making them.

49. The Tribunal relies on the sentencing remarks of the learned Magistrate for these convictions that were provided to the Tribunal by counsel for the Commissioner and other written material supplied by Ms Shires that seems to be a set of agreed facts between her and the prosecution relating to the charges.

50. It would appear that the assaults arose from essentially the same incident and that the victims were a tenant with whom Ms Shires had an antagonistic relationship who was assaulted by being physically held by Ms Shires to stop the tenant scratching her further and a relative of the tenant who was "thumped" on the left arm by Ms Shires as they each tried to have the other let go of a wheelie bin. The Magistrate described the offending by Ms Shires as excessive self-defence.

51. Ms Shires provided the Tribunal with a brief video recording that she had taken herself. It would appear that the video shows the circumstances of the first offence against the tenant although not the actual assault itself. It was not disputed that the tenant is Ms Shires's own tenant, not the tenant of a client of her property management business even though it would appear from the video that Ms Shires was wearing clothing with her business logo. The Tribunal viewed the video privately during the lunch break on the day of the hearing and invited Ms Shires to make any submissions she wished on the video.

52. The video shows Ms Shires attempting to enter a tenant's premises and forcibly asserting her rights to conduct an inspection of the premises despite the clear and repeatedly voiced objections by the tenant. Ms Shires opened the door with her own key and then placed her fingers and later her hand in the opening, presumably to prevent her tenant from closing the door. Ms Shires adopted an aggressive posture and intimidatory language throughout this confrontation with her tenant, threatening to take the tenant to this Tribunal and telling her that she was at the "mercy" of this Tribunal. The video recording ceased when a police officer arrived at the premises.

53. The Magistrate found that the breach bail offence was arguably more serious as Ms Shires bail condition specifically included not speaking to a witness (who was identified during the hearing as being one of the victims). Ms Shires's offending was described by the Magistrate as intentional and that it was more than an incidental discussion.

54. At some point prior to the date of the full hearing, Ms Shires had provided the Crown Solicitor's Office with a copy of the affidavit deposed to by Mr Anthony Coleman on 6 May 2021 in support of the application for an Intervention Order made against Ms Shires and also certain correspondence between Ms Shires and the Magistrates Court Registry in relation to this application. The correspondence was a series of emails dated 25 May 2021 to 9 September 2021. Counsel for the Commissioner provided a copy of that material to the Tribunal during the lunch break on the day of the hearing and this material was read privately before the hearing resumed. Ms Shires was given an opportunity to address these matters on resumption.

55. The Tribunal considers that it is appropriate to place significant weight on the matters deposed to in the affidavit given that they formed the basis of the Magistrates Court making the interim Intervention Order and ultimately the final Intervention Order, and because Ms Shires did not dispute the occurrence of the matters alleged against her in the affidavit.

56. Mr Coleman asserted in the affidavit of 6 May 2021 that it is reasonable to suspect that Ms Shires will commit an act of abuse against Coleman employees by causing personal injury, causing emotional or psychological harm and from constant harassment. Mr Coleman asserted in his affidavit that:

1. Ms Shires left 38 text messages, 16 voicemails and countless missed calls at all times of the day and night since Coleman's appointment as temporary manager, and approximately 12 calls to the Coleman's office where she was verbally abusive to a Coleman employee and made false accusations;
2. Ms Shires made Facebook posts on 22 April 2021 and 30 April 2021 variously naming and defaming the Coleman business, Mr Coleman himself and a second Coleman employee and also threatening that second employee;
3. Ms Shires sent text messages to the second Coleman employee on 30 April 2021 containing what the Tribunal will describe as veiled threats of harm to the second employee and attempts at intimidation of the second employee (who is female). This included (edited by the Tribunal):
   1. "My dogs can't wait to eat you";
   2. "Did Anthony tell you about the murder? Don't worry about that. ...you will be safe [smirk emoji]";
   3. "girls get a bit shakey when they've met me there in the past"; and
   4. claiming that the second employee was being false and misleading and liable for a $10,000 fine under real estate regulations.
4. A voicemail message was left by Ms Shires on 1 May 2021 for Mr Coleman claiming that he had agreed to purchase her business and threatening legal action for lack of payment;
5. A voicemail message was left by Ms Shires on 5 May 2021 for the second Coleman employee threatening to report her for malpractice and have her licence revoked and having her "clients do the same"; and
6. Ms Shires had been told by Mr Coleman multiple times verbally and in writing, and also by the lead investigator from the Commissioner's office, not to contact Mr Coleman or Coleman employees.

57. As noted earlier, the Court made an interim Intervention Order on 13 May 2021 and this was made final on 2 September 2021. Ms Shires did not attend the latter hearing in the Court and the final order was made in her absence.

58. The only relevant substantive comment in Ms Shires's correspondence with the Court prior to the making of the final order is contained in an email dated 1 September 2021, which the Court later confirmed to Ms Shires was taken into consideration by the Magistrate. In this email of 1 September 2021, Ms Shires asserts that:

I already have a recourse for Anthony's negligent attitude towards our recent business dealings. At any time, I can proceed to have Anthony prosecuted under the Land Agents Act 1994. Given this is the proper manner to deal with Anthony's disregard for others, I find it perplexing that Anthony would find himself worthy, in my mind, of an "Act of Abuse" against him or his peers.

59. Otherwise, Ms Shires does not deny the factual assertions in Mr Coleman's affidavit.

60. In an email to the Magistrates Court Registry dated 7 September 2021, Ms Shires said:

It appears that this Intervention order was sought in an effort to impose "legal abuse" upon me, I will need to have it removed to continue to conduct business with my "government enforced" business partner (legally not a business partner in any manner, but the CBS Commissioner registered him and refused to register anyone else for the signing of Agency documents which means that I cannot lawfully operate my business without his assistance) ... Please advise which forms I will need to make an application to the court to have the intervention order lifted until our business partnership between myself and the Applicant has dissolved.

61. There is no evidence before the Tribunal that the Intervention Order has since been revoked by the Court.

62. Ms Shires was found guilty in 2011 with no conviction recorded for assaulting police, resisting police and failing to give her name and address. She was placed on a 12-month good behaviour bond.

63. The passage of time from prior offending may diminish the relevance of that offending when considering a person's current fitness and propriety especially if there is a subsequent period of good behaviour.[21] The Commissioner submitted at the hearing that these historical offences should be now read in the light of Ms Shires's more recent offending and attitude of disrespect of the law and law enforcement officers. But no evidence is before the Tribunal as to the circumstances surrounding the historical offending or its relevance to Ms Shires's fitness and propriety to be registered as a land agent, and it would therefore be unfair to Ms Shires for the Tribunal to do anything more than note this older offending.

64. Ms Shires was convicted in 2008 for failing to wear a seatbelt properly. The Tribunal ignores this offence for present purposes.

Trust account examination, audit, annual return and fee

65. Ms Shires was required to provide her trust account records to Bentleys for Bentleys's examination. In correspondence to Bentleys, Ms Shires said that her trust account records were being held by "extortion" by an accounting software company named Console (with which she had a dispute regarding subscription fees) and that she had appointed a third party to assist her with the examination and that Bentleys was to contact Console and the third party directly. The Tribunal understand that Bentleys did not do so.

66. The Tribunal notes that Ms Shires wrote to Bentleys after receiving its examination findings in April 2020 and said:

I've allowed you to access my files to complete the Audit for your Client. There is no reason why you need to contact our office further. Our Agency engages an Auditor to review & report under the act and it is not Bentley's. All emails from Bentleys will now be diverted to 'Junk' email folder automatically.

67. Ms Shires said Console would not release the records without payment of the amount they asserted was owing by her. Ms Shires told the Tribunal that she believed that if she paid Console the outstanding sums, they would not stop asking for more to release her records, so she would not do so. She told the Commissioner in her response to the Show Cause Notice that she had not prioritised commencing litigation against this company.

68. Ms Shires told the Tribunal that there was no reason for the Commissioner to be concerned about her trust account bookkeeping.

69. Ms Shires did not explain why she had not lodged the annual return and fee that led to the automatic cancellation of her registration in February 2021.

70. The Tribunal was told that there are currently investigations underway in the Commissioner's office regarding whether Ms Shires has breached the LA Act and the Residential Tenancies Act 1995 in a number of respects. No positive findings have been made by the Commissioner that any breaches occurred.

71. Ms Shires was given cautions during the hearing as to the risk of incrimination that she faced during the hearing if she touched on these matters. In any event, the Tribunal received no evidence as to these other allegations and is not asked to make any findings in respect of them. Accordingly, the Tribunal does not do so.

72. To be clear from the outset, there is no evidence before the Tribunal to substantiate Ms Shires's claims of improper conduct by any other person against her and any such assertions by Ms Shires are rejected by the Tribunal without any qualification.

73. Noting that the onus is on the individual to satisfy the Commissioner that they are a fit and proper person under the LA Act (and not for the Commissioner to prove that they are not), the Tribunal is satisfied that Ms Shires is incapable of discharging that onus given the gravity and repeated nature of her recent disregard of the law and her legal obligations and its relevance to the vocation of land agent and the objects of the LA Act.

74. In this regard, the Tribunal has given substantial weight to the findings of the ERD Court; to the circumstances surrounding Ms Shires's assault convictions and the related breach of bail conviction; and to the need for an Intervention Order to be granted to protect from harassment by Ms Shires the persons tasked by the Commissioner with managing Ms Shires's property management business.

75. The Tribunal also gives weight to Ms Shires's failure to comply with the requirements of the Bentleys examination of her trust account; her failure later to lodge a trust account audit and a return and fee (which led to the two cancellations of her registration as a land agent in 2017 and 2021); and her generally uncooperative and dismissive attitude to the Commissioner's lawful requirements of her in executing his duties under the LA Act. The Tribunal agrees with the submissions of the Commissioner that Ms Shires's attitude to the dispute with Console and her asserted inability to provide trust account records to Bentleys (namely, that it was a problem for others to fix) demonstrates her inability to take seriously her legal responsibilities and obligations as a land agent.

76. The factual evidence accepted by the Tribunal, and the conclusions reasonably open to the Tribunal to draw from those facts, reflect poorly on Ms Shires's honesty, character, integrity and reliability as a land agent and are overwhelmingly unfavourable to Ms Shires's fitness and propriety to be registered as a land agent.

77. It is evident to the Tribunal that Ms Shires is willing to disregard the law and her legal obligations, including those under the LA Act, if she perceives that compliance with the law and her legal obligations are inconsistent with and may thwart her personal priorities, objectives and interests, including those relating to gaining a commercial profit.

78. The Tribunal is particularly concerned that Ms Shires deliberately breached the solemn agreement she entered into to abide by the terms of her bail conditions relating to the assault charges she was then facing and that she was apparently not deterred from doing so by having spent a week on remand prior to the grant of bail.

79. The Tribunal is also satisfied that Ms Shires is willing to attack, physically or verbally, those who she perceives to be frustrating her interests, including those whose responsibility it is to enforce the law or perform lawful statutory functions. Ms Shires's striking of the council officer with a shovel and her harassing, threatening and intimidating behaviour against Coleman personnel is especially disturbing and disgraceful.

80. Despite Ms Shires being tearful for most of the full hearing, the Tribunal is not satisfied that this demonstrates (nor that there is any other evidence that does demonstrate) remorse and contrition or any desire by Ms Shires to acknowledge responsibility for her conduct and to change for the better. On the contrary, Ms Shires has taken no real responsibility for her conduct and its outcome, and has negligible insight into the consequences of her conduct on her fitness and propriety as a land agent. It is evident from all the oral and written submissions provided by Ms Shires to the Tribunal that she blames others for her present situation, including (unsubstantiated) conspiracies within the RCMB and the Commissioner's office[22] to take action contrary to her interests and an "inexperienced and new" judge of the ERD Court. However, the Tribunal is satisfied that Ms Shires is fundamentally the author of her own misfortune.

81. Counsel for the Commissioner invited the Tribunal to draw its own conclusions from the video supplied by Ms Shires of the altercation with her tenant that led to one of the assault convictions. Here the Tribunal is not concerned with the assault itself, which is dealt with elsewhere in this decision, but what apparently led to the assault. The Tribunal is satisfied that it was inappropriate for Ms Shires to attempt to forcibly enter and inspect the property over the strident objections of the tenant and that a reasonable land agent would have behaved calmly and professionally and relied on the other remedies open to them under the Residential Tenancies Act 1995. The Tribunal does not accept Ms Shires's explanation that she did what she could to be respectful in the situation.

82. The Tribunal accepts that evidence of a single event is not necessarily evidence of a pattern of behaviour or a predictor of future behaviour. However, the Tribunal is concerned that Ms Shires showed so little insight into her behaviour that she was unable to moderate her conduct when videoing herself aggressively confronting her tenant during the inspection attempt and, further, that she was unable to appreciate the negative inferences as to her conduct that are reasonably open to the Tribunal to make when viewing this video. This is suggestive of Ms Shires seeing her conduct on the day in question as acceptable and ordinary conduct for a land agent and therefore suggests that it is conduct that she is likely to repeat.

83. Mr Coleman's affidavit and the email correspondence with the Court registry is also a clear further indication that Ms Shires is unwilling to acknowledge and take personal responsibility for the consequences of the conduct that led to her being denied registration; that she refuses to acknowledge the statutory role being undertaken by Coleman; and that she downplays that role by mischaracterising it as some sort of business partnership when there is clearly no such relationship involved in the appointment of a temporary manager.[23]

84. It is of particular concern to the Tribunal that, within weeks of being convicted by the ERD Court and without being deterred by those convictions, Ms Shires again undertook unauthorised development on the same land.

85. Accordingly, for the foregoing reasons, the Tribunal can have no confidence that, if Ms Shires were registered as a land agent, the conduct she has recently demonstrated would not be repeated. The Tribunal is satisfied that there is in fact a serious risk that Ms Shires may see the grant of registration as validation and approbation of her conduct.

86. Ms Shires argued that the Tribunal should not take into account matters that had occurred in her private life to make decisions affecting her professional life and that the Commissioner should not punish her further when she has already incurred penalties in the ERD Court and the Magistrates Court. The Tribunal does not agree with that first proposition as there is no constraint on the relevant matters that the Tribunal can take into account in determining fitness and propriety and does not agree that the Commissioner or the Tribunal is taking action to punish Ms Shires. It is clear for reasons already given that the intent of the requirement for fitness and propriety is the protection of the public. In any event, the Tribunal is satisfied that Ms Shires's conduct is directly relevant to whether she has the requisite fitness and propriety to be registered as a land agent. The conduct discussed in these reasons occurred when Ms Shires was carrying on activities relating to land development and variously as a landlord, land agent and property manager notwithstanding that it was occasionally on her own behalf.

87. Ms Shires also complained that the Commissioner should have granted her an interview before refusing her registration application. The Tribunal is not satisfied that Ms Shires was denied procedural fairness by the Commissioner in making his decision, however it would be largely an academic exercise for the Tribunal to determine conclusively whether Ms Shires was or was not afforded procedural fairness. This is because any lack of prior procedural fairness was cured by the Tribunal conducting the review hearing.[24]

88. The Tribunal agrees with the submissions of the Commissioner that the Tribunal must consider whether public confidence and trust in the profession of land agents and in the registration system would be compromised if Ms Shires were permitted to be registered as a land agent notwithstanding her past criminal offending, the other conduct reflecting poorly on her character, honesty and integrity, and her failure to take personal responsibility for her conduct. The Tribunal finds that public faith in the profession and the registration system generally would be unacceptably compromised if Ms Shires were registered as a land agent.

89. The decision of the Licensing Court cited by Ms Shires (Holdfast Bay Charters [2011] SALC 65) does not assist her as the legislative regime and the facts in that case are markedly different. While it is correct that a history of offending does not automatically mean that a person lacks fitness and propriety for an occupation, the Holdfast Bay Charters matter concerned a person with an extensive criminal history who was found to have turned his life around and to have acted responsibly for many years and, even so, was only granted an interim licence on strict terms. In Ms Shires's case, her offending and other objectionable conduct are recent; there is no evidence of a substantial period of good behaviour since that conduct; and, as the Tribunal has found, there is a high likelihood of that conduct being repeated.

90. On her own behalf, Ms Shires told the Tribunal that she has been honest in her dealings and representations and has demonstrated her fitness and propriety in how she conducts herself in her profession. She said that she is passionate about land management and investment and would not do something that would damage her reputation or prejudice her ability to work in her profession and build a stronger residential sector in the regions. She said that, seen in context, the issues of concern identified by the Commissioner are not relevant to her fitness and propriety; that the common factor in all the incidents is that she has taken action to protect herself from others; and that she should not be punished for standing up for herself. The Tribunal disagrees with Ms Shires characterisation of her conduct and disagrees with her contention that the issues of concern identified by the Commissioner are not relevant to her fitness and propriety.

91. The Tribunal concludes that Ms Shires is not a fit and proper person to be registered as a land agent. Having found that Ms Shires would not be entitled to be registered as a land agent because she lacks the necessary fitness and propriety and the high risk that she would repeat prior conduct if she were registered, the Tribunal is satisfied that the correct and preferable decision is the decision made by the Commissioner to refuse Ms Shires registration as a land agent.

92. Ms Shires proposed to the Tribunal that she be granted conditional registration as a land agent and have her trust account kept under scrutiny. There is no ability to grant conditional registration under the LA Act and, even if there were, the Tribunal would not consider such an outcome to adequately reflect the risk to the public of Ms Shires being able to carry on business as a land agent.

93. In making its decision, the Tribunal has given appropriate weight to the decision of the original decision-maker due to their specific expertise in assessing a person's fitness and propriety under legislation administered by the Commissioner. However, due to the overwhelming evidence against Ms Shires's fitness and propriety to be registered as a land agent, the Tribunal would have reached the same decision even if no weight was given to the decision of the original decision-maker.

94. In view of the overwhelming evidence against Ms Shires's fitness and propriety, the Tribunal places little weight on two character references provided to the Tribunal that had originally been written for the purposes of the charges dealt with in the Magistrates Court.

95. The Tribunal affirms the decision under review.

[1] The Commissioner's delegate(s) made the various decisions discussed here by the Tribunal but for clarity and brevity reference is made to the "Commissioner" in these reasons.

[2] Ms Shires was refused permission by the Tribunal to call for questioning one of the Commissioner's officers, Mr Fraser Stroud, who she asserted directed the Commissioner's delegate, Mr Ethan Sandery, to refuse her registration. This was on the grounds that any lack of procedural fairness in the decision-making process would be cured by the conducting of the hearing by the Tribunal: Re RBY [2021] SACAT 39 at [27] - [30].

[3] Section 4(1) Land Agents Act 1994.

[4] Section 6 Land Agents Act 1994.

[5] Section 8 Land Agents Act 1994.

[6] See generally Commissioner for Consumer Affairs v Property Management Specialists Pty Ltd (in liquidation) [2006] SADC 15 at [19]; Commissioner for Consumer Affairs v Taza Pty Ltd [2011] SADC 192 at [32]; Commissioner for Consumer Affairs v Overduin [2012] SADC 32 at [37] - [39]; Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd [2013] SADC 131 at [48].

[7] See Commissioner for Consumer Affairs v Taza Pty Ltd [2011] SADC 192 at [29] - [30].

[8] Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 390, 392; Commissioner for Consumer Affairs v McCurdy [2004] SADC 174 at [6].

[9] Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [36].

[10] Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 390; Re Collins and Estate Agents Board (1994) 7 VAR 394 at 399, 400; Commissioner for Consumer Affairs v Capponi [2004] SADC 169 at [9]; Commissioner for Consumer Affairs v McCurdy [2004] SADC 174 at [20]; Commissioner for Consumer Affairs v Kilsby [2004] SADC 179 at [18] - [20].

[11] Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 392.

[12] Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76; D'Orazio v Registrar of Firearms [2018] SACAT 15 at [28].

[13] Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76; applied in a number of decisions including D'Orazio v Registrar of Firearms [2018] SACAT 15 at [27]; Commissioner for Consumer Affairs v Marley-Duncan [2019] SADC 154 at [92] - [94]. Also, on the question of public confidence in the system, see Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd [2013] SADC 131 at [47].

[14] Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28 at [9] in the judgment of Dixon CJ and McTiernan and Webb JJ.

[15] Commissioner for Consumer Affairs v Marley-Duncan [2019] SADC 154 at [93] - [94].

[16] Re Collins and Estate Agents Board (1994) 7 VAR 394 at 400.

[17] Sobey v Commercial Agents Board (1979) 22 SASR 70 at 75; Commissioner for Business and Consumer Affairs v Peter Burkett Real Estate Pty Ltd [2013] SADC 131 at [47].

[18] Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 392; Commissioner for Consumer Affairs v McCurdy [2004] SADC 174 at [20].

[19] Rural City of Murray Bridge v Shires [2020] SAERDC 22 (in respect of the guilty pleas and findings) and Rural City of Murray Bridge v Shires (No 2) [2020] SAERDC 31 (in respect of sentencing).

[20] Ms Shires pleaded guilty to one count of unauthorised development and one count of failing to comply with a notice but was found guilty after trial on the remaining five counts.

[21] Sobey v Commercial Agents Board (1979) 22 SASR 70 at 75-6.

[22] This includes one particularly scurrilous allegation made by Ms Shires against the Commissioner at paragraph 8 of her Outline of Argument that the Commissioner's counsel sought at the hearing to be struck out. The Tribunal did not strike out the paragraph as it was not satisfied that it had power to do so in circumstances where the allegation was made merely in written submissions that were not repeated orally during the hearing; where Ms Shires is unrepresented and wrote the submissions herself; where she conceded the paragraph was poorly worded; and where there is no evidence whatsoever to support the allegation and the Tribunal could address the matter by placing such weight as it considered appropriate on the allegation.

[23] Ms Shires has filed a separate application for review in this Tribunal against the appointments by the Commissioner of Bentleys and Coleman. That is an entirely separate matter and is not dealt with in this decision.

[24] Re RBY [2021] SACAT 39 at [27] - [30].