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

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
COMMISSIONER FOR BUSINESS AND CONSUMER AFFAIRS v PETER BURKETT REAL ESTATE PTY LTD AND ANOR
[2013] SADC 131
Judgment of His Honour Judge Slattery, Member Ms A Bachmann and Assessor Mr R Turner
4 October 2013
ADMINISTRATIVE LAW
In 1998, disciplinary proceedings were brought against the second defendant under the Land Agents Act 1994, due to a finding of defalcation of trust monies held in the first defendant's trust account. Orders were made under those proceedings to disqualify the registration of the first and second defendant, and that the second defendant be prohibited from being employed or otherwise engaged in the business of a land agent until further Order.
The second defendant now seeks to have those Orders discharged under s8A of the Land Agents Act 1994.
Held: application refused.
Land Agents Act 1994 s8A, s13, s43, s47, s51; Criminal Law Consolidation Act 1935 s184, referred to.
Dixon v Legal Practice Board of Western Australia [2012] WASC 79 ; Re Harrison (1992) 168 LSJS 84, applied.
Commissioner of Consumer Affairs v P Burkett Real Estate Pty Ltd and Peter John Burkett (23 June 1998) (DCAAT-98-154) (judgment date 23 June 1998); Commissioner for Consumer Affairs v Daniel Overduin [2012] SADC 32; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Craig v Medical Board of South Australia (2001) 79 SASR 545; Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 ; Ex parte Lenehan (1949) 77 CLR 403 ; In re Kearney (1908) 8 SR (NSW) 87, 89; Re Hill [1868] LR 3 QB 545; In re Davis (1947) 75 CLR 409 ; New South Wales Bar Association v Evatt (1968) 117 CLR 177 ; A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 ; Re Harrison; Application re Readmission (2002) 84 SASR 120; New South Wales Bar Association v Davis (1963) 109 CLR 428, 432; Law Society of South Australia v Murphy (1999) 201 LSJS 456; Law Society of South Australia v Rodda (2002) 83 SASR 541 ; Legal Practitioners Complaints Committee v Pepe [2009] WASC 39; Ziems (286); Re Maraj (A Legal Practitioner) (1995) 15 WAR 12, 25, considered.

COMMISSIONER FOR BUSINESS AND CONSUMER AFFAIRS v PETER BURKETT REAL ESTATE PTY LTD AND ANOR
[2013] SADC 131

The second defendant Peter John Burkett (Burkett) by interlocutory application dated 23 December 2011 sought the following Orders:-
“The Second Defendant, PETER JOHN BURKETT applies for the following orders or directions:-
1.   Declaration that the second defendant PETER JOHN BURKETT is a fit and proper person to be registered as a sales representative, employed or otherwise engaged in the business of an agent.
2.   Discharge of all of the Orders made on 23^rd June 1998 that the second defendant PETER JOHN BURKETT be prohibited from being employed or otherwise engaged in the business of an agent until further order or in the alternative vary the said Orders so that the said disqualification and prohibition cease as of the date of the granting of this Order.
3.   Such further or other Order as this Honourable Court my [sic] deem fit.”
The first defendant is a company in liquidation. Although it is named as a party, no authority has been provided (s471B Corporations Act) for any application to be brought in the name of that company. In the absence of any authority from the liquidator, no further consideration will or can be given to the position of the first defendant corporation.
By second interlocutory application, Burkett sought the following Orders:-
“The Second Defendant, PETER JOHN BURKETT applies for the following orders or directions:-
1.   Discharge of all of the Orders made on 23 June 1998 as follows:-
a.   that the second defendant be prohibited from being employed or otherwise engaged in the business of an agent until further order;
b.   that the second defendant be prohibited from being a director of a body corporate that is an agent;
c.   that to the extent that it can be implied that the Court also ordered that the second defendant be disqualified from being registered under the Land Agents Act 1994 (SA) (‘the Act’)) [sic] that this order also be discharged.
2.   Such further or other Order as this Honourable Court may deem fit.”
In support of the initial application, Burkett filed a series of affidavits. The affidavit sworn 22 December 2011 reads as follows:-
“I, PETER JOHN BURKETT of __________________ in the State of South Australia Truck Driver MAKE OATH AND SAY:
1.   I am 60 years old.
2.   On the 24^th May 1999 I was convicted on my own confession in the Murray Bridge Magistrates Court of 15 counts of fraudulent conversion.
3.   The matter was dealt with before Mr FR Field SM as a minor indictable offence.
4.   I was sentenced to a term of imprisonment of two years and three months with a non parole period of nine months. Exhibited hereto and marked “PJB-1” is a true copy of the Certificate of Record of the Magistrates Court in relation to this offending.
5.   On the 23^rd June 1998 the Administrative and Disciplinary Division of the District Court of South Australia cancelled the registration of Peter Burkett Real Estate Pty Ltd as a Real Estate Agent and cancelled my registration as a Real Estate Agent. The application was made to the Court by the Commissioner of Consumer Affairs. I did not oppose the application.
6.   In July 1998 I was declared bankrupt on my own petition.
7.   After serving about five months in custody I was released in November 1999 on home detention in Murray Bridge where I served the balance of my non parole period.
8.   I was released on parole after serving my non parole period. The balance of my sentence was served uneventfully on parole conditions.
9.   After being released from prison I returned to Murray Bridge and faced my community, which included people who had suffered as a result of my offending. Those people who were defrauded have had no compensation from the Land Agents Indemnity Fund. I entered into an arrangement to reimburse that fund at the rate of $40.00 per fortnight, and I continue to comply with that arraignment.
10.   In December 1999 I obtained casual employment as a labourer building sheds for Mr Garry Richards. I was on home detention at the time.
11.   From January 2000 until January 2001 I had casual employment for various employees in Murray Bridge doing work as a gardener, as a dairy hand and as a builders labourer.
12.   From January 2001 until May 2002 I was employed by Bramalco Pty Ltd as a salesman.
13.   From May 2002 until March 2003 I had casual work in Murray Bridge and I did volunteer work with Families SA as a volunteer driver.
14.   In or about December 2002 I obtained credentials that enabled me to work in the transport industry as a taxi driver and in October 2004 I obtained credentials that enabled me to work as a truck driver.
15.   From March 2003 until October 2004 I was employed as a taxi driver by Mr Ross Stavrou. Exhibited hereto and marked with “PJB-2” is a letter from Mr Stavrou.
16.   From October 2004 until January 2008 I was employed by Macklins Transport as a truck driver. Exhibited hereto and marked “PJB-3” is a letter from Ms Gemma Gordon who was Business Manager at Macklins Transport when I worked there.
17.   From January 2008 until August 2009 I was employed by Harris Refrigerated Transport as a truck driver.
18.   From August 2009 until August 2011 I was employed by Hinde Bulk Transport as a truck driver. Exhibit hereto and marked “PJB-4” is a letter from Mr John Barr, director of Hinde Bulk Transport Pty Ltd.
19.   In August 2011 I left Hinde Bulk Transport Pty Ltd and returned to work for Harris Refrigerated Transport as a truck driver.
20.   In August 2007 I obtained a licence as a Collector for Charitable Purposes pursuant to Section 6A of the Collection for Charitable Purposes Act 1939. I was obliged to disclose to the Liquor and Gambling Commissioner my criminal record which I did.
21.   Since January 2008 I have worked as a Collector for Charitable Purposes on a casual basis.
22.   I want to return to work in the Real Estate industry as a Sales Representative, and I would also like eventually to be licenced as a Real Estate Agent.
23.   I am now 60 years of age and I would like to leave the heavier unskilled work that I have been following and return to the work in the Real Estate industry that I followed for about 18 years and where I can better utilise my skills and abilities. I would also see readmission to the real estate industry as an opportunity to redeem myself from errors that I have made in the past.
24.   Mr Neville Mibus is the manager of Community Food SA Inc which is a charitable organisation which has employed me to act as a collection agent. Mr Mibus declares that he has found me to be trustworthy and honest. Exhibited hereto and marked “PJB-5” is a letter from Community Food SA Inc and signed by Mr Mibus.
25.   If this Honourable Court is disposed to grant the Orders I seek I propose to lodge an application with the office of Consumer and Business Services for registration as a Land Sales Representative.
26.   I am supported by members of my local community at Murray Bridge in my application to re-enter the Real Estate industry; as follows;
a.   Mr Ken Conventry OAM, JP is a former Chief Executive Officer of the Rural City of Murray Bridge. Exhibited hereto and marked “PJB-6” is a letter from Mr Coventry.
b.   Mr Fred Toogood is a retired local businessman and a man who has been very active in community affairs. Exhibited hereto and marked “PJB-7” is a letter from Mr Toogood.
c.   Ms Sylvia Presepio, is a director of First National Real Estate in Murray Bridge, and, has knowledge of me through the real estate industry. Ms Presepio declares that I have worked to become a reliable and trustworthy person. Exhibited hereto and marked “PJB-8” is a letter from Ms Presepio.
d.   Mr Rob Mason is a director of Masons Real Estate and has known me for about 30 years. Exhibited hereto and marked “PJB-9” is a letter from Mr Mason.
27.   I have been excluded from working in the Real Estate industry for the last thirteen years.
28.   Since 1999 I have not been convicted of any offence other than four driving offences. Exhibited hereto and marked “PJB-10” is a true copy of a National Police Certificate dated 12^th October 2011.
29.   I seek orders to discharge or vary the Order of the District Court of South Australia dated 23^rd June 1998 to enable me to be registered as a Real Estate Sales Representative, employed or otherwise engaged in the business of an agent and in due course as a Real Estate Agent.”
In an affidavit sworn 14 June 2012, Burkett said as follows:-
“I, PETER JOHN BURKETT of __________________ in the State of South Australia Truck Driver MAKE OATH AND SAY:
1.   I was diagnosed as suffering from depression in 1989 following the breakdown of my marriage. I was admitted to hospital and my condition was managed by a psychiatrist, Dr Kelly.
2.   I believe I also suffered depression in 1985 when I was most unhappy in my working environment but I did not seek help that [sic] the time. In the time that followed the occurrence of this depressed state my marital relationship deteriorated and my wife and I separated in July of 1989. After the breakdown of the marriage I started to drink heavily.
3.   At the time of my offending which led to my conviction I was drinking heavily and I believe I was suffering from depression.
4.   By the time I was sentenced I had been diagnosed as suffering from reactive depression and I was taking prescribed medication for the depression. At the time of my release from prison in November of 1999 I was free of depression.
5.   My son Brock died of an asthma attack in August 2010 while he was travelling in Europe. Brock was 27 years old. Brock’s death led to me suffering a recurrence of the depressive disorder.
6.   I recognised that I was depressed and I consulted my doctor Dr Andrew Hughes of the Morphettville Medical Centre. He prescribed the medication Cymbalta which I take. I am now in the process of being weaned off this anti-depressive medication.
7.   I consult Dr Andrew Hughes from time to time.
8.   I have had a number of consultations over the last year or so with a counsellor at Victor Harbor Ms Phillippa Hall and that has been most beneficial to me.
9.   After my son Brock died I gave up alcohol. I have been a teetotaller since his death. I don’t desire alcohol and I don’t miss alcohol and I feel better for not using it. I have also noticed a significant financial benefit in not drinking alcohol.
10.   In February 2012 I commenced studying for a diploma in Property Services (Agency Management) at the Currie Street TAFE. I should complete that course in November 2012.
11.   It is my wish to be registered as a Sales Representative only at this stage. I have no plan at this stage to apply for registration as a Real Estate Agent.”
Mr Westover, partner of the firm Mason Westover Homburg engaged as solicitors for Burkett, swore an affidavit on 6 July 2012. The relevant passages read as follows:-
“I, PHILIP ALLAN WESTOVER of __________________ Murray Bridge SA 5023, Solicitor TAKE AN OATH AND SAY:
1.   I am partner in the firm Mason Westover Homburg the solicitors for Peter John Burkett and I have the conduct of this matter.
2.   On instructions from Peter John Burkett I wrote a letter to the Honourable Gail Gago MLC the Minister of Consumer and Business Affairs on 15^th August 2011. Now produced to me and marked with the letter “A” is a true copy of an office copy of the said letter.
3.   On 8^th September 2011 I received a letter from the Honourable Gail Gago MLC. Annexed hereto and marked with the letter “B” is a true copy of the letter from the Minister.
4.   On the 8^th day of June 2012 I wrote a letter to Dr JA Hughes requesting a medical report in respect of Mr Burkett. Now produced to me and marked with the letter “C” is a true copy of an office copy of the said letter.
5.   On 28^th day of June 2012 I received by facsimile transmission a letter from Dr Hughes. Now produced to me and marked with a letter “D” is a true copy of the said letter.”
The plaintiff Commissioner filed and delivered affidavits in response. The first, being an affidavit sworn by Julie-anne Lake on 16 April 2012, reads as follows:-
“I Julie-anne Lake c/o Level 1, 91-97 Grenfell Street Adelaide in the State of South Australia, Solicitor, TAKE AN OATH AND SAY:
1.   I am employed within the Crown Solicitor’s Office and, subject to the direction of the Crown Solicitor, I have responsibility for the conduct of this matter on behalf of the Complainant.
2.   On 27 February 2012 I attended the Registry of the Adelaide Magistrates Court to inspect the court file Police v Peter John Burkett MCMUB-99-74.
3.   By letter of the same day I made an application to take copies of certain documents from the file. Exhibited to this affidavit and marked JAL-1 is a true copy of the letter sent to the Adelaide Magistrates Court Registry.
4.   On 10 April 2012 I was advised by Chris Newbery of the Adelaide Magistrates Court Registry that Magistrate Harrap had granted access to copies of the documents requested. Mr Newbery arranged for copies of the documents to be made and these were collected from the court on 11 April 2012. Exhibited to this affidavit and marked JAL-2 are the copies obtained from the court file MCMUB-99-74.”
The second responding affidavit was sworn by Mr Carl Kittel on 16 April 2012. It reads as follows:-
“I Carl Kittel c/o Level 9, 50 Grenfell Street Adelaide in the State of South Australia, TAKE AN OATH AND SAY:
1.   I am employed as Manager of Investigations Consumer and Business Services. I manage a team of investigators that investigate breaches of the various licensing Acts including the Land Agents Act 1994.
2.   An indemnity fund is established under the Land Agents Act 1994. This fund is administered by the Commissioner for Consumer Affairs (“the Commissioner”).
3.   Consumers suffering pecuniary loss as a result of fiduciary fault on the part of the agents can make a claim for compensation to the Commissioner.
4.   On perusing the files which relate to Peter John Burkett/Peter Burkett Real Estate Pty Ltd it is evidence that a total of 15 persons made claims for compensation for pecuniary loss suffered as a result of fiduciary default on the part of Peter John Burkett/Peter Burkett Real Estate Pty Ltd. Twelve claims for compensation were paid out of the fund as follows:
a.   A total of $3,597.85 was paid to Mason Westover Rowe and Homburg in relation to Mr A. Exhibited to this affidavit and marked CK-1 is a copy of the letter confirming payment;
b.   A total of $560.00 was paid to Mr and Mrs C to reimburse Mr B the amount of a security bond. Exhibited to this affidavit and marked CK-2 is a copy of the letter confirming payment;
c.   A total of $3,986.45 was paid to D&G D. Exhibited to this affidavit and marked CK-3 is a copy of the letter confirming payment;
d.   A total of $13,955 was paid to the South Australian Housing Trust. Exhibited to this affidavit and marked CK-4 is a copy of the letter confirming payment;
e.   A total of $1,024 was paid to Ms K. Exhibited to this affidavit and marked CK-5 is a copy of the letter confirming payment;
f.    A total of $1,890 was paid to Ms L. Exhibited to this affidavit and marked CK-6 is a copy of the letter confirming payment;
g.   A total of $520.00 was paid to Mr M. Exhibited to this affidavit and marked CK-7 is a copy of the letter confirming payment;
h.   A total of $1,113 was paid to Mr M. Exhibited to this affidavit and marked CK-8 is a copy of the letter confirming payment;
i.    A total of $1,008 was paid to Ms P. Exhibited to this affidavit and marked CK-9 is a copy of the letter confirming payment;
j.    A total of $4,572.80 was paid to Ms S. Exhibited to this affidavit and marked CK-10 is a copy of the letter confirming payment;
k.   A total of $459.00 was paid to TV. Exhibited to this affidavit and marked CK-11 is a copy of the letter confirming payment; and
l.    A total of $460.00 was paid to Ms L which related to a bond which was never lodged. Exhibited to this affidavit and marked CK-12 is a copy of the letter confirming payment.
5.   From perusing File 670/00-01423 I note that a proof of debt dated 14 July 1990 was lodged with the liquidator of the company in relation to the administration costs of $42,081.00. I note that in a memorandum dated 29 November 2000 policy officer Gillian Schach referred to a list of all payments made from the fund and this included a payment of $42,081 to the trust account administrators appointed by the Commissioner to manage the trust account of Peter Burkett Real Estate Pty Ltd. Exhibited to this affidavit and marked CK-13 is a copy of the proof of debt and list of payments.”
There were a number of hearings before us (10 August 2012, 14 August 2012, 30 August 2012 and 9 October 2012).
In light of the content of the various affidavits read in evidence, it is necessary to rehearse the matters that were before the District Court in its administrative and disciplinary division at the time that the Court came to its decision in Commissioner of Consumer Affairs v P Burkett Real Estate Pty Ltd and Peter John Burkett (23 June 1998) (DCAAT-98-154) (judgment date 23 June 1998).
Burkett obtained his real estate licence in 1979 and he moved to Murray Bridge with his former wife in 1980. He was there employed as a real estate agent in his wife’s family business in Murray Bridge. He remained with that company until 1991 when he was then asked to leave his employment because of poor performance. He established his own real estate business trading under the name Gardiners Real Estate. Later he established a business trading under the name of L.J. Hooker. This occurred in 1992. The corporation named as the first defendant in this action was the proprietor of that business name.

In 1998, administrators were appointed to investigate financial discrepancies in the running of that business. As a result Burkett’s real estate licence was revoked in 1998 and he was made bankrupt later in 1998.
On the history before us, it has not been put in contest that Mr Burkett stated he suffered from depression for many years, particularly in the mid-1980s. He suffered a nervous breakdown in 1989 and was hospitalised in the Adelaide Clinic. He was prescribed anti-depressant and has had periods of deep depression since the mid-1980s. There was a marked change in his disposition in the early to mid-1990s when his mood changed from feeling flat and depressed to a sensation of exuberance and increased energy. He also started to be a heavy consumer of alcohol. It appears that he was not in a fit state of mind to operate a business and that business was not successful. The financial pressures caused within the business exacerbated Burkett’s health problems. These problems culminated in his conduct in 1997 and 1998.
In the District Court Administrative Appeals Tribunal (DCAAT) proceedings before Judge Sulan and others referred to above, by summons dated 6 May 1998, the Commissioner for Consumer Affairs (the Commissioner) brought proceedings against Burkett’s company and Burkett pursuant to s43 of the Land Agents Act 1994 as amended. That section, then read as follows:-
“Cause for disciplinary action
43. (1)(c) the agent or any other person has acted contrary to this Act or the Land and Business (Sale and Conveyancing) Act 1994 or otherwise unlawfully, or improperly, negligently or unfairly, in the course of conducting, or being employed or otherwise engaged in, the business of the agent; or
(1)(d) in the case of an agent who has been employed or engaged to manage and supervise an incorporated agent’s business – the agent or any other person has acted unlawfully, improperly, negligently or unfairly in the course of managing or supervising, or being employed or otherwise engaged in, that business; or
(1)(e) events have occurred such that – (ii) the agent is not a fit and proper person to be registered as an agent; or (iii) in the case of an incorporated agent, a director is not a fit and proper person to be the director of a body corporate that is registered as an agent.”
The Commissioner relied upon subparagraph 43(1)(c) in respect of the conduct of the corporation and subparagraph 43(1)(d) and 43(1)(e)(ii) and (iii) in respect of the conduct of Burkett. It is alleged that both of them acted unlawfully and improperly. The facts as they were considered by the DCAAT at the time were that an amount of some $15,000 was misappropriated from the funds held under a trust relationship for and on behalf of the South Australian Housing Trust. The misappropriation occurred on 10 September 1997. There were also other matters taken into account in respect of improper dealing with trust account monies for funds in respect of deposits for house sales and in respect of a rent roll.
Mr Robert Ferguson, Chartered Accountant, was appointed administrator of the two trust accounts on 4 March 1998. The investigations of Mr Ferguson disclosed that the $15,000 owed to the South Australian Housing Trust had been received through a purchase of the property transaction and had been paid into Burkett’s trading account with the company. The Burkett company acted as the vendor’s agent in the transaction. These funds were then deposited into the rental trust account and not the agent’s trust account. The deposit into the rental trust account was necessary because of the failure by Burkett to pay monies received into that rental trust account at the time that they received it. Burkett had fraudulently converted those funds. Thus Burkett was compounding the fraudulent misappropriations that he had committed.
Judge Sulan identified that the overall deficiency in trust account monies in respect of the combined trust accounts for the rental business and for the real estate business totalled somewhere between $35,000 to $40,000. That figure was admitted. Burkett was merely moving money between accounts to cover deficiencies.
Mr Ferguson gave evidence to the Court and said that the record keeping of the business was inadequate and that proper records were not being kept so that it would not have been possible to have reconciled the accounts on a regular basis. The trust account records were not properly kept, and no proper care was taken in respect of dealing with trust account monies. Ultimately, a finding was made that Burkett had illegally and improperly used trust monies and, remarkably, this occurred even after the administrator was appointed because the sum of $900 was not remitted to the trust account when it should have been so remitted. Burkett admitted the conduct the subject of the charges as well as the further improper conduct after the appointment of the Administrator.
The Court found that Burkett’s business encountered financial difficulties from some time in 1997 and that at least from September 1997 trust monies were used to meet expenses of the business and to repay a personal loan to a Mr Dorriti.
It is also an accepted fact that Burkett’s business ran at a loss and that Burkett had mortgaged all of his own assets in order to sustain the capital position of the business. Those efforts were not successful because of Burkett’s inability to run a profitable business. Liabilities always exceeded assets and expenses always exceeded income.
As a result of those matters, Burkett committed defalcations in relation to his trust account both in respect of the rent roll and in respect of the real estate transaction trust account. The Court found that the breaches of trust were most serious and were continuing: the conduct of Burkett breached the Act but was done knowingly and dishonestly. The Court formed the view that Burkett was not a fit and proper person to conduct the business of a land agent and that the public must be protected from conduct such as that in which he engaged. The Court held that there was a proper case for disciplinary action against Burkett and his company and that the Commissioner had established that Burkett and his company had acted both unlawfully and had breached s13 of the Land Agents Act as it then existed. The conduct was improper, Burkett was not a fit and proper person to be registered as an agent and the corporation was an inappropriate corporation to hold a licence.
Following those findings, the Court made a number of Orders. It cancelled the registration of the first defendant. Burkett’s registration as an agent was cancelled. The Court ordered that Burkett be prohibited from being employed or otherwise engaged in the business of an agent until further Order. Burkett was prohibited from being a director of a body corporate that was an agent. The orders of disqualification and prohibition were made until further Order.
Subsequent to the Orders of the Court (23 June 1998) and on 21 January 1999 Burkett was charged with 15 counts alleging breaches of s184(1)(a) of the Criminal Law Consolidation Act (CLCA). Each of the 15 counts are separate. Those counts disclose a failure by Burkett to deal with trust monies either in respect of his rent roll or in respect of real estate transactions.
Section 184 of the Criminal Law Consolidation Act 1935 then relevantly read as follows:-
“Fraudulent misappropriation
184.
(1) Any person who—
(a) being entrusted, whether the instructions are written, verbal or implied, either solely or jointly with any other person, with any property in order that he may retain in safe custody, or apply, pay or deliver for any purpose or to any person, the property or any part thereof or any proceeds thereof; or
(b) having, either solely or jointly with any other person, received any property for, or on account of, any other person, fraudulently converts to his own use or benefit, or the use or benefit of any other person, the property or any part thereof or any proceeds thereof, or fraudulently destroys the property or any part thereof or any proceeds of the property or part thereof, shall be guilty of an offence and liable to be imprisoned for a term not exceeding seven years.
(2) Nothing in this section shall apply to or affect any trustee of any express trust created by a deed or will, or any mortgagee of any property, real or personal, in respect of any act done by the trustee or mortgagee in relation to the property comprised in, or affected by, any such trust or mortgage.”
The total amount allegedly fraudulently misappropriated by Burkett was in the sum of between $35,000 and $40,000. The depositions in support of the information disclose the circumstances giving rise to the receipt by Burkett of trust funds, his improper dealing with those trust funds in breach of his trust and the deception engaged in by Burkett in relation to those persons who had placed their trust in him. It is quite plain that Burkett lied extensively and vigorously over a long period of time in order to “cover his tracks” and to divert attention from his conduct.
Burkett pleaded guilty to the charges brought against him and that plea of guilty was entered on 24 May 1999. Mr F.R. Field SM sentenced Burkett to a period of imprisonment of 2 years and 3 months commencing 24 May 1999 and his Honour set a non-parole period of 9 months commencing 24 May 1999. The total amount that the Court ordered Burkett to repay was in the sum of $39,695.98. Burkett was allowed 18 months to pay that amount. By that time, the Court was aware that the cost incurred by Mr Ferguson in carrying out his task as administrator of the two trust accounts was in the amount of $42,000. The appointment of Mr Ferguson ceased on or about 10 April 1998 and it was the report of Mr Ferguson that formed the basis of the matters brought before the Court by the Commissioner. It appears to be the case that it was subsequent to the Orders of the Court made against Burkett for the repayment of both the sum of $39,695.98 (the defalcations) and the sum of $42,000 (the cost of the administrator) that Burkett was made bankrupt. It follows that the debt in respect of the amount owed by Burkett for the cost incurred by Mr Ferguson fell into the bankruptcy whereas the orders by the Court for repayment of the amounts of defalcation ($39,695.98) survived the bankruptcy. This was not in issue between the parties.
The indemnity fund established under the Land Agents Act 1994 was used by the Commissioner to discharge the twelve claims for compensation made by persons affected by the fraudulent misappropriations of Burkett. A proof of debt was lodged in the bankruptcy of Burkett for the sum of $42,081 in respect of the administration costs. We have not been told what, if any, distribution there was from the bankrupt estate of Burkett.
It is sufficient to say that the twelve claimants have been paid from the Land Agents Act Indemnity Fund. The Orders for repayment to that indemnity fund have been made by the Court. Burkett is making those payments, by arrangement with the Commissioner at the rate of $40 per week. For the purposes of preparing these reasons, we have taken access to all of the documents that have been put before us in relation to both the prosecution of Burkett in the Magistrates Court and the matter heard by the Court in relation to the disqualification of Burkett.
The Court has been informed that after serving 5 months in custody, Burkett was released in November 1999 on home detention in Murray Bridge. He served the balance of his non-parole period there. At that time, Burkett went back to Murray Bridge and faced the community which included people who had suffered as a result of his offending.
Since that time, Burkett has obtained casual employment and fixed employment. This has ranged from labouring work to garden work, dairy hand, a builder’s labourer, sales work, taxi driving and more latterly truck driving work.
In a number of the positions which he has obtained, Burkett has been required to handle monies belonging to other persons. In his taxi driving work, he was required to account for receipts for that work. In his work as a truck driver, he had the use of credit cards for fuel purchases. He also obtained a licence as a collector for charitable purposes and was required to disclose to the Liquor and Gambling Commissioner his criminal records.
Mr Burkett is now 62 years of age and says that he would like to leave the heavier unskilled work that he has been following and return to the real estate industry that he followed for about 18 years. He thinks that he could better utilise his skills and abilities in the real estate industry. He says that he wants to return to work in the real estate industry as a sales representative and would like to eventually be licenced as a real estate agent. He would also want to seek readmission to the real estate industry as an opportunity to redeem himself in errors that he has made in the past.
In support of his application Burkett tendered into evidence a number of references from referees: Mr Ken Coventry, a former Chief Executive Officer of the Rural City of Murray Bridge; Mr Fred Toogood, a retired local businessman with whom Burkett is well familiar; Ms Silvia Prescpio, a director of First National Real Estate in Murray Bridge, a person who has known Burkett through the real estate business; Mr Rob Mason, a director of Mason’s Real Estate, a person who has known Burkett for about 30 years. We have read and taken into account the whole of the content of those references.
Burkett has the intention, if his application is granted, to seek registration as a real estate sales representative employed or otherwise engaged in the business of an agent and in due course, as a real estate agent.[1] Burkett informed us in viva voce evidence that in a role as a sales representative, it would be common for him to be required to deal with trust monies. That would not be so prevalent in the rent roll sense because those arrangements are now usually made by direct debits and direct credits. However, in the real estate sales sense, he admitted that from time to time he would be required to deal with trust funds on deposits and the like.
[1] This later changed: viz paragraph [3] of these reasons.
Having said that he has an intention to seek employment as a real estate sales representative, Burkett informed us that he did not yet have any particular arrangements made. His view was that it was necessary for this application to be first disposed of before he would make any application.
Of course, he recognised that even if this application was successful, it would still be necessary for him to have the approval of the Commissioner for registration as a real estate sale representative. That was a matter that would abide the decision of this Tribunal in relation to this application.
Mr Burkett informs us that he has now recognised the problems he had with depression. Tragically he has also had to deal with a family bereavement as well as with his own health issues. He has sought medical assistance in relation to his depression and his alcohol abuse, and he has now not used alcohol since August 2010. In February 2012 he commenced studying for a Diploma in Property Services (Agency Management) and he completed that course in November 2012. Despite the fact that he earlier said that he would seek employment ultimately as a real estate agent, he announced in his affidavit of 14 June 2012 that he had no plans currently to apply for registration as a real estate agent.
In support of this application Burkett authorised his solicitors, Mason Westover Homburg, to write to the Honourable Gail Gago MLC Minister for Consumer and Business Affairs on 15 August 2011. That letter sought the favourable exercise of the Minister’s discretion under s51 of the Land Agents Act 1994 for an exemption for Burkett from compliance with the obligations of s8A(b) Land Agents Act. The letter stated:-
“Subject to receiving such an exemption from you, Mr Burkett would make application to the District Court to vary its Orders so that he may be employed in the business of a land agent. In the event of that application being successful, he will then make an application to the Office of Business and Consumer Affairs for registration as a land sales representative.”
The Honourable the Minister responded by letter of 6 September 2011. In the letter the Minister advised Burkett that the application for registration could not be sought pre-emptively and in order to be registered, it must be accompanied by an application for registration. No such application was lodged. The Minister informed Burkett that she would be happy to consider his request for exemption if lodged in conjunction with an application for a land sales representative registration. The Minister recognised that it was necessary for this Court to vary or revoke the Orders made in 1998 preventing him from employing or otherwise engaging in the business of an agent before any registration could be granted.
Section 8A of the Land Agents Act read as follows:-
“8A—Entitlement to be registered as sales representative
A natural person is entitled to be registered as a sales representative if the person—
(a)     has—
(i)    the qualifications required by regulation; or
(ii)subject to the regulations, the qualifications that the Commissioner considers appropriate; and
(b)     has not—
(i)    been convicted of an indictable offence of dishonesty; or
(ii)during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and
(c)     is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(d)     is a fit and proper person to be registered as a sales representative.”
It will be immediately apparent that Burkett is disqualified from practicing or carrying on an occupation, trade or business under a law of South Australia namely as a real estate agent and he has been found to be not a fit and proper person to be registered as a sales representative.
Section 47 of the Land Agents Act reads as follows:-
“47—Disciplinary action
(1)     On the hearing of a complaint, the Court may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by an order or orders do one or more of the following:
(a)     reprimand the person;
(b)     impose a fine not exceeding $20 000 on the person;
(c)     either—
(i)suspend any registration of the person for a specified period or until the fulfilment of stipulated conditions or until further order; or
(ii)     cancel any registration of the person;
(d)in the case of a person whose registration is suspended—impose conditions as to the conduct of the person or the person's business as an agent after the end of the period of suspension;
(e)     disqualify the person from being registered under this Act;
(f)prohibit the person from being employed or otherwise engaged in the business of an agent;
(g)prohibit the person from being a director of a body corporate that is an agent.
(2)     The Court may—
(a)     stipulate that a disqualification or prohibition is to apply—
(i)    permanently; or
(ii)     for a specified period; or
(iii)    until the fulfilment of stipulated conditions; or
(iv)    until further order;
(b)stipulate that an order relating to a person is to have effect at a specified future time and impose conditions as to the conduct of the person or the person's business until that time.
(3)     A fine imposed under subsection (1) is payable to the Commissioner for the credit of the indemnity fund.
(4)     If—
(a)     a person has been found guilty of an offence; and
(b)the circumstances of the offence form, in whole or in part, the subject matter of the complaint,
the person is not liable to a fine under this section in respect of conduct giving rise to the offence.”

Attention is drawn to the content of s47(2). It appears, although it is not clear, that in 1998, the Court stipulated that the disqualification of Burkett was to apply until further Order. The question of an exemption from that Order is prescribed in s51 Land Agents Act. That section reads as follows:-
“51—Exemptions
(1)     The Minister may, on application by a person, exempt the person from compliance with a specified provision of this Act.
(2)     An exemption is subject to the conditions (if any) imposed by the Minister.
(3)     The Minister may, at his or her discretion, vary or revoke an exemption.
(4)     The grant or a variation or revocation of an exemption must be notified in the Gazette.”
It also will be recognised that there is some circularity in the operation of s47, s51 and s8A.
It is not necessary for us to resolve that matter here. It is sufficient to say that, for the purposes of s8A(c) of the Act, it would be necessary for the suspension of the disqualification to be lifted and for us to indicate whether it is our view that Burkett is a fit and proper person to be registered as a sales representative. This background explains why Burkett amended his application.
We have already set out in some detail why it is that Burkett brings this application. The question for our consideration is whether or not, in the exercise of our discretion under the Land Agents Act, we would discharge the Orders made by this Tribunal under s47(2)(a)(iv) for any good reasons. The thrust of Burkett’s submissions were: sufficient time has now elapsed between the offences and the application such that the debts to society owed by Burkett has been paid; Burkett has, in accordance with the arrangements made with the Commissioner, continued to discharge the debt which he owes at the rate of $40 per fortnight;[2] by the elapse of time, Burkett has now brought his various medical conditions under control and that he is now a different person than the person who undertook the defalcations in 1997-1998; having paid his debt to society, and having rehabilitated himself, the Court is in an appropriate position to accept that Burkett has made real efforts to restore confidence in the community and his ability (viz his references); that the Tribunal could now find him reliable, trustworthy and honest and that he should no longer continue to be punished for the wrongs that he has admitted took place in 1997-1998 in the particular circumstances of those events.
[2] We record that Burkett, through his counsel at the hearing, volunteered that he would intend to increase the rate of repayment. We have no evidence before us on this topic.
The Commissioner submitted that the correct approach to the consideration of this application is not to look at whether Burkett is a fit and proper person now to be involved in the real estate industry but to assess whether it is in the public interest that he should do so and whether the Order that has been made by Tribunal in 1998 is still needed as a matter of protection for the public. This is so in circumstances where the Tribunal was not completely clear (in 1998) of the total detail of the defalcation committed by Burkett. The Tribunal had the report of Mr Ferguson but it was not until later in 1999 that the criminal charges were brought against Burkett to which he pleaded guilty in May 1999. The Commissioner’s view is that it is necessary to consider the full circumstances of the offending as was known and to consider the public interest in light of those matters. In particular, the Commissioner emphasised that the Tribunal is not just dealing with questions of the protection of the public per se, but also public confidence. That is, whether the public is able to feel confident in the system which would allow someone such as Burkett back into the system to operate in the field in which he was operating at the time of offending conduct. Part of the confidence that the public needs to feel in the system is to know that a person who has been guilty of serious professional misconduct and fraudulent misappropriation are dealt with properly and are not persons they are dealing in very important transactions. Emphasis was placed upon the fact that when members of the public deal with a real estate agent, it is often in relation to a very significant investment, perhaps the most significant investment, in their lives and potentially very large sums of money are involved. The expectation in dealing with an agent in those circumstances would be that the agent is honest and there would be no expectation that the members of the public would be dealing with a person who has served time in imprisonment for serious breaches of trust in the form of fraudulent misappropriations connected with them acting as an agent in the past no matter how long ago. Although a number of submissions were put in this respect, we have summarised those submissions above. The question is the application of principle in relation to those matters.
It behoves us to identify that the purpose of the Act is to regulate the conduct of persons registered under the Act, to protect the public and to maintain proper standards of conduct rather than to punish any party whose conduct is the subject of criticism.[3] The task that is before us is to assess the fitness and propriety of a person such as Burkett seeking readmission or re-registration but in the role as a real estate sale representative and not as a real estate agent.
[3] Judge Soulio in Commissioner for Consumer Affairs v Daniel Overduin [2012] SADC 32; Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Craig v Medical Board of South Australia (2001) 79 SASR 545.
In the view that we have formed, it is not necessary to delineate between the role of a real estate sale representative and a real estate agent. Obviously enough, the two roles are different. However, bearing in mind the task before us, the question to be considered by us is largely the same: we are to have regard to the questions of protection of the public, the maintenance of proper standards and regulation of the conduct of persons who are registered under the Land Agents Act.
There is now a suite of authoritative decisions concerning persons seeking readmission. Generally, they refer to persons seeking readmission to the legal profession. It is apparent that the legal profession and the profession of persons operating as real estate sales representatives are different in many and obvious ways however, when it is known that questions of trust and confidence apply in relation to both, in our view the comments that have fallen from the various Courts of Australia are apposite. Those authorities are helpfully summarised in the decision of the Court of Appeal of the Supreme Court of Western Australia in Dixon v Legal Practice Board of Western Australia [2012] WASC 79 (14 March 2012). Haydon Wesley Dixon, a legal practitioner, applied for readmission and the question for decision was whether the practitioner was a fit and proper person (to be admitted as a practitioner of the Court). The practitioner had been struck off for serious misconduct including for perjury and for defalcation of his trust account. The practitioner gave evidence of a medical history concerning and surrounding the conduct and a breakdown in his personal and professional relationships. Emphasising that fitness to practise (law) requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and Judges, and is to be decided at the time of hearing and accepting that reasonable minds will differ about these matters, the Court helpfully summarised (from paragraph [21] onwards) the relevant case authorities concerning this question. The Court said:-
“[21] Case authority at the highest levels addresses the nature of a court's inquiry as to the fitness and propriety of a practitioner seeking readmission. The decisions of the High Court in Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 and Ex parte Lenehan (1949) 77 CLR 403 were readmission applications. In the latter decision, Latham CJ, Dixon and Williams JJ said (422):
The decisions cited refer to cases where a solicitor who had been on the roll was struck off the roll. When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to the probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds.
The question to be decided is not one of law to be determined by reference to previous decisions. The duty of the court is to determine in what manner the court should exercise its discretion in the particular circumstances of each case (our emphasis in bold, citations omitted).
[22] In Lenehan, Rich J (who with Starke J dissented in the result), observed (426):
Applications by persons seeking admission and those to strike solicitors off the roll impose on the court a painful and disagreeable task. But it is necessary and must be exercised with firmness in the interests of the public. Solicitors are officers of the court and the public expects that the court will, so far as it can, ensure upright and honourable conduct on the part of its officers. The interests of the court, the public, the profession and of the applicant must be considered (cf In re Kearney (1908) 8 SR (NSW) 87, 89). The public must not be exposed to improper officers of the court (Re Hill [[1868] LR 3 QB, 545]) (our emphasis in bold).
[23] Fitness and propriety have also been considered by the High Court in the related context of a striking off application. Cases in this category include In re Davis (1947) 75 CLR 409 (failing to disclose on application for admission to the Roll of Barristers a conviction for breaking, entering and stealing); Ziems v The Prothonotary of the Supreme Court of New South Wales (the effect of a conviction for vehicular manslaughter as regards the penalties of either suspension or striking from the Roll); Clyne v The New South Wales Bar Association (professional misconduct arising out of maintenance, intimidation and unsubstantiated inflammatory character attacks in an opening address); New South Wales Bar Association v Evatt (1968) 117 CLR 177 (gross overcharging) and A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (convictions for sexual offences against children and failure to disclose similar offences).
[24] At the intermediate appellate level, Doyle CJ in Re Harrison; Application re Readmission (2002) 84 SASR 120 helpfully summarised readmission principles as to the fitness and propriety of an applicant, removed from the Roll in 1983, and then refused readmission in 1992. Referring to New South Wales Bar Association v Davis (1963) 109 CLR 428, 432; Ex parte Lenehan (422); and Incorporated Law Institute of New South Wales v Meagher, Doyle CJ observed:
It is also relevant to recall that in such a matter the court acts in the public interest, and not with a view to punishment. The court is concerned to protect the public. It is not concerned with punishment of a practitioner who has done wrong, although the removal of the practitioner's name from the roll of practitioners will operate as a punishment, and a refusal to restore the name of a former practitioner to that roll may seem to be a form of punishment. The court's concern is to protect the public and the administration of justice by preventing a person from acting as a legal practitioner if that person is not fit to remain a member of the profession: see Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460-461 and Law Society of South Australia v Rodda (2002) 83 SASR 541 at 545 [20]-[22].
… A legal practitioner is held out by the court as a person fit and proper to discharge an important responsibility. A practitioner is an officer of the court, and is involved in the administration of justice. Legal practitioners are also held out to the public as persons upon whom the public may rely, and in whose integrity they may trust. The court cannot hold a person out to the public as a fit and proper person to be a practitioner, if it is not satisfied that this is the case. As I have said, this has nothing to do with questions of punishment or reform or rehabilitation. As I said in Rodda at [29], another factor to consider is the reputation and standing of the legal profession. The court must consider whether public confidence and trust in the legal profession would be eroded if a person were permitted to remain or to become a member of the profession, notwithstanding the past conduct that is in question. [60] - [61] (our emphasis in bold).
[25] Doyle CJ's observations in Rodda [29] mentioned above have been referred to with approval by Murray and Beech JJ in Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 [9]. There, at [9] and [10], their Honours refer to a need to preserve the standing and reputation of the legal profession in the eyes of the community and, at [10], to the maintenance of proper standards in the legal profession.
[26] As to serious misconduct, it is helpful to refer to the precursor readmission application, Re Harrison, considered by a South Australian Full Court comprising King CJ, Prior and Debell JJ (Re Harrison (1992) 168 LSJS 84) (8):
Whatever may be thought as to the weight to be attached to the Board's finding as to lack of candour and as to whether they presented an obstacle to the success of the application, the fatal obstacle to the application is not any deficiency in the conduct of his case before the Board of Examiners, but the conduct which led to his striking off. It was not the conduct of a young and immature person nor an isolated act committed under stress. The applicant's conduct in his mid-forties towards the clients who placed their trust in him was flagrantly dishonest. That conduct, together with his behaviour in the subsequent proceedings, demonstrates a character so flawed as to preclude re-admission to the legal profession (our emphasis in bold).
See also Murray and Beech JJ in Pepe [10] as regards very serious cases.
[27] It will be appreciated, from many authorities concerning striking off and readmission, that a court, in exercising a protective jurisdiction, does not act punitively. It acts in the public interest. Aspects of the public interest, arising in assessing fitness and propriety, do involve the encouragement of rehabilitation and redemption of practitioners, struck from the Roll. There is also an allied economic interest in potential service to the community by persons appropriately equipped providing legal services. Those considerations are clearly relevant and important. We acknowledge their force. But the range of public interest considerations in play clearly extends more broadly. It must extend to encompass, as well, the interests of the court and a maintenance of the high reputation and standards in the legal profession: see Ziems (286); Re Maraj (A Legal Practitioner) (1995) 15 WAR 12, 25 (Malcolm CJ, Kennedy and Franklyn JJ agreeing); Re Harrison [61] (Doyle CJ); Pepe [10] and [11].”
Referring in particular to paragraph [24] of the judgment and the references and the summary by Doyle CJ in Re Harrison therein set out, in our view, the comments therein are apposite. Our concern is to protect the public in and about the administration of the real estate industry by preventing a person from acting as a real estate sales representative if that person is not fit to be a member of that body of persons. We are of the view that real estate sales persons are held out to the public as persons upon whom the public may rely and in whose integrity they may trust so they may (place) trust in the process and thus also in that person. We agree that it is not a matter of punishment or reform or rehabilitation. Similarly, we must consider whether public confidence and trust in the profession of real estate sales persons would be eroded if a person were permitted to remain or to become a member of that profession notwithstanding the past conduct that is in question.
In our view, the matter for our consideration is the seriousness of the conduct which led to the Orders made by this Court in 1998. Similar to the position in Harrison, we are of the view that the conduct was not that of a young and immature person nor was it an isolated act even though it may have been committed under the particular stress of Burkett’s own making. At the relevant time, Burkett was in his mid-40s and his conduct was in respect of clients who placed their trust in him. His conduct was flagrantly dishonest and it is to his credit that he confronted that flagrantly dishonest conduct by his plea of guilt. We do not make a finding that the conduct demonstrates a flawed character but we are of the view that the conduct itself which led to the Orders made in 1998 (fraudulent misappropriation) was of such a serious nature that in and of itself, it would, in ordinary circumstances preclude readmission to the profession of real estate sales persons.
In so deciding, we have also had regard to the judgment of the New South Wales Court of Appeal in Kotowicz v Law Society of New South Wales BC8701232 (7 August 1987). We refer in particular to the judgment of the President, Justice Kirby as his Honour then was at pages 1920, 1921, 1922, 1923 and 1924. It is to be emphasised that Kirby P was in dissent. Justices Samuels and Mahoney decided to refuse to exercise the power to reinstate the solicitor notwithstanding, as was found by the Court, that the relevant offending was isolated and of a small nature. We respectfully agree with and adopt the judgment of the majority in that case.
In the circumstances, and having regard to all of the submissions that have been made to us, it is the decision of this Tribunal to refuse the application.
We so Order.