Commissioner for Fair Trading v Ivan Tasic (Occupational Discipline)
[2023] ACAT 26
•1 May 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING v IVAN TASIC (Occupational Discipline) [2023] ACAT 26
OR 19/2022
Catchwords: OCCUPATIONAL DISCIPLINE – licensed real estate agent – where agent unlawfully took funds from the trust account for private purposes – all funds repaid – no impact on clients – apparent gambling addiction – orders sought by Commissioner – disqualification from applying for a real estate agent’s licence – public or private reprimand
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 38, 39, 65, 66
Agents Act 2003 ss 7, 18, 29, 35, 36, 37, 41, 42, 105, 107, 113, 115, 132, 133, 171
Fair Trading (Australia Consumer Law) Act 1992
Subordinate
legislation cited: Agents Regulation 2003 schedule 8
Cases cited: Commissioner for Fair Trading v Blinksell [2014] ACAT 11
Commissioner for Fair Trading v Giersch [2016] ACAT 153
Commissioner for Fair Trading v Lamaro [2017] ACAT 1
Commissioner for Fair Trading v McPherson [2017] ACAT 6
Commissioner for Fair Trading v Property Plaza [2019] ACAT 109Commissioner for Fair Trading v Yes Real Estate [2019] ACAT 103
Tribunal: Senior Member M Hyman
Date of Orders: 1 May 2023
Date of Reasons for Decision: 1 May 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 19/2022
BETWEEN:
COMMISSIONER FOR FAIR TRADING
Applicant
AND:
IVAN TASIC
Respondent
TRIBUNAL:Senior Member M Hyman
DATE:1 May 2023
ORDER
The Tribunal orders that:
Pursuant to section 66(2)(a) of the ACT Civil and Administrative Tribunal Act 2008, the respondent is publicly reprimanded.
Pursuant to section 66(2)(f) of the ACT Civil and Administrative Tribunal Act 2008, the respondent is disqualified from applying for a real estate agent’s licence for a period of two years from the date of this decision.
………………………………..
Senior Member M Hyman
REASONS FOR DECISION
Introduction
On 24 November 2022 the Commissioner for Fair Trading (the Commissioner) applied to the tribunal seeking an order for occupational discipline under the Agents Act 2003 (the Agents Act) and sections 9, 65 and 66 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The Commissioner sought the order against Mr Ivan Tasic, the respondent, who holds a licence under the Agents Act. The Commissioner is seeking the occupational discipline because Mr Tasic has acknowledged a series of transactions in which he withdrew funds from the trust account he operated as a licensee and used those funds for his own purposes. The Commissioner’s application sought a public reprimand of the respondent and a disqualification from applying for a real estate agent’s licence for a period of two years. The Agents Act and the ACAT Act together allow the Commissioner to apply to the ACAT for disciplinary orders under defined circumstances.
On 31 August 2022 the respondent was charged with the criminal offence of unauthorised dealing with trust money under section 107(1) of the Agents Act. He pleaded guilty, was convicted and was fined $1,500, on 29 September 2022. The application to ACAT was brought two months later seeking occupational discipline. The application was the subject of a conference but was not resolved. It has now come to me to be determined on the papers. The respondent does not oppose the disqualification from applying for a real estate agent’s licence, but is arguing against a public reprimand.
The papers made available for the determination of this matter comprise:
(a)a statement of facts agreed between the parties;
(b)documents supplied as evidence, including the respondent’s licences, correspondence, bank statements, a record of an interview with Mr Tasic by investigators in Access Canberra, and documents associated with the criminal charge laid against Mr Tasic (all these papers compiled as an annexure to the agreed statement of facts, comprising 56 pages, and identified in this decision by page numbers (2-57));
(c)submissions by the ACT Government Solicitor, for the applicant, and by the respondent;
(d)a letter of support for the respondent from Ms Eliza Tasic, his wife.
Issues
The issues before me are:
(a)whether there is a ground made out for occupational discipline against Mr Tasic; and
(b)if so, what occupational discipline orders, if any, should be made.
Legislative scheme
Agents Act
The Agents Act provides for the licensing of agents in the ACT, including real estate agents. Section 7 of the Act notes that “fair trading legislation” is covered by the dictionary of the Fair Trading (Australia Consumer Law) Act 1992 (the Fair Trading Act). The dictionary in the Fair Trading Act lists those pieces of legislation that constitute fair trading legislation, and the Agents Act is among those listed. Part 5 of the Fair Trading Act sets up the office of the Commissioner for Fair Trading and confers functions and powers on the office, including investigative powers.
Under the Agents Act a real estate agent must be licensed.[1] A person may apply to the Commissioner for a licence,[2] which may be issued for a term of up to three years.[3] A licensed agent may apply to the Commissioner for a renewal of their licence;[4] if an application is made the existing licence remains in force until the application is decided.[5] Division 3.4 of the Agents Act deals with occupational discipline, and for the purposes of the Division, the provisions apply to both agents and former agents.[6] Section 41 sets out the grounds for disciplinary action, as follows:
[1] Agents Act 2003, section 18
[2] Agents Act 2003, section 29
[3] Agents Act 2003, section 35
[4] Agents Act 2003, section 36
[5] Agents Act 2003, section 37
[6] Agents Act 2003, section 40
(1) Each of the following is a ground for occupational discipline in relation to an agent:
(a)the agent has contravened, or is contravening, the fair trading legislation;
(b)the agent has contravened, or is contravening, a rule of conduct;
Note Rules of conduct—see s 171.
(c)the agent has contravened, or is contravening, a condition of the agent’s licence;
(d)if the agent is a licensed agent––the agent has become ineligible for a licence under section 24 (Eligibility for licences) or for registration under section 49 (Eligibility for registration);
(e)the agent has contravened, or is contravening, an order of the ACAT;
(f)the agent’s licence was obtained by fraud or mistake;
(g)a ground prescribed by regulation for this section.
(2) However, subsection (1) (a) to (e) applies to a former licensed agent only in relation to anything that happened while the person was licensed.
Section 42 of the Agents Act provides that:
If the commissioner for fair trading believes on reasonable grounds that a ground for occupational discipline exists in relation to an agent, the commissioner may apply to the ACAT for an occupational discipline order in relation to the agent.
Part 7 of the Agents Act deals with trust money. A licensed real estate agent must keep at least one trust account[7] and it is an offence for a licensed agent to deal with the money in a trust account other than in accordance with the direction of the person on whose behalf the agent holds the money on trust.[8] A licensed agent is obliged to have the trust fund audited, usually annually but at the Commissioner’s direction, at some other interval.[9]
[7] Agents Act 2003, section 105
[8] Agents Act 2003, section 107
[9] Agents Act 2003, sections 113, 115
Division 8.2 allows the Commissioner to issue orders freezing accounts of licensed property agents where it appears that trust money has been stolen, misappropriated, or misapplied. Section 132 allows the Commissioner to order that no funds be withdrawn from a nominated account without written approval. Section 133 makes it an offence for a deposit-taking institution not to comply with such an order.
The Agents Act further provides for regulations to be made prescribing rules of conduct for licensed agents;[10] a licensed agent must not contravene a rule of conduct.[11] Schedule 8 of the Agents Regulation 2003 sets out rules of conduct for agents. The rules include that an agent must know the Agents Act and other relevant laws;[12] must comply with an agent’s fiduciary obligations;[13] must act honestly, fairly and professionally;[14] and must act in accordance with a client’s instructions.[15]
The ACAT Act
[10] Agents Act 2003, section 171(1)
[11] Agents Act 2003, section 171(2)
[12] Agents Regulation 2003, schedule 8, rule 8.2
[13] Agents Regulation 2003, schedule 8, rule 8.3
[14] Agents Regulation 2003, schedule 8, rule 8.4
[15] Agents Regulation 2003, schedule 8, rule 8.10
A person may apply to the ACAT if an authorising law allows an application.[16] Division 6.2 of the ACAT Act sets out the particular powers of the ACAT in occupational discipline matters, and prescribes considerations that must be taken into account in such matters. Section 65 sets out what the ACAT must take into account before making an order for occupational discipline:
[16] ACT Civil and Administrative Tribunal Act 2008, section 9
(1) This section applies if the tribunal is considering an application for occupational discipline against a person (the subject person).
(2) The tribunal may make an order for occupational discipline in relation to the subject person if satisfied that a ground for occupational discipline exists against the person.
(3) In considering what occupational discipline to use against the subject person, the tribunal must consider the following:
(a)whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;
(b)whether occupational discipline has previously been used against the person for a similar act;
(c)whether the person has taken steps to mitigate the effect of the contravention;
(d)the impact of the contravention on any other person;
(e)the likelihood that the person will act in a way that is a ground for occupational discipline in the future;
(f)whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.
Example—par (c)
the person has changed a method of work or given a direction to staff to prevent further contraventions
(4) The tribunal may consider any other relevant matter.
Section 66 then sets out the kinds of orders the ACAT can make in occupational discipline matters:
(1) This section applies if the tribunal may make an order for occupational discipline in relation to the subject person.
Note Section 65 sets out when the tribunal may make an order.
(2) The tribunal may make 1 or more of the following orders for occupational discipline in relation to the subject person:
(a)reprimand the person;
(b)require the person to give a written undertaking;
(c)require the person to complete a stated course of training to the satisfaction of the regulatory body or another stated person;
(d)give the person a direction;
Note For directions that may be given, see s 67.
(e)cancel or suspend the person’s licence or registration;
(f)disqualify the person from applying for a licence, or registration, of a stated kind for a stated period or until a stated thing happens;
(g)if a regulatory body may put conditions on the person’s licence or registration under an authorising law—direct the regulatory body to—
(i)put a condition on the person’s licence or registration; or
(ii)remove or amend a condition put on the person’s licence or registration;
(h)require the person to pay to the Territory or someone else a stated amount (not more than any amount prescribed by regulation);
(i)if the person gained financial advantage from the action that is the ground for occupational discipline—require the person to pay to the Territory an amount assessed as the amount of financial advantage gained by the person.
(3) If the ACAT cancels a person’s licence or registration, the ACAT may disqualify the person from applying for a licence or registration for a stated period or indefinitely.
(4) This section does not limit the orders the tribunal may make.
(5) In this section:
regulatory body means the entity responsible for issuing licences of the kind held by the subject person or for registering people in the occupation or profession in which the subject person is registered.
The facts
Mr Tasic was licensed as a real estate agent in July 2021. On 28 July 2021 Access Canberra issued two licences, the first to “Edge Ivan Tasic” (licence number 18402982)[17] and one to Ivan Tasic (licence number 18402963),[18] each in force to 30 June 2022. It appears that Mr Steven Thomas, founder of the Edge Real Estate group, licensed Mr Tasic to use the Edge name for his agency.[19] On 19 October 2021 Mr Tasic met with Mr Thomas and told him that he had a gambling problem, and that he had used money from his trust account for his own purposes.[20] Mr Thomas terminated the licence agreement under which Mr Tasic was able to trade under the Edge Real Estate name,[21] and on 20 October 2021 advised Access Canberra.[22]
[17] Agreed statement of facts, 19 December 2022, annexure A, page 2
[18] Agreed statement of facts, 19 December 2022, annexure A, page 3
[19] Agreed statement of facts, 19 December 2022, annexure A, page 3
[20] Agreed statement of facts, 19 December 2022, annexure A, page 5
[21] Agreed statement of facts, 19 December 2022, annexure A, page 5
[22] Agreed statement of facts, 19 December 2022, annexure A, page 4
The bank records of the trust and business accounts for Edge Ivan Tasic show that Mr Tasic withdrew a total of $77,250 in 53 transactions over a period of about six weeks from 10 September to 18 October 2021.[23] The transactions occur in bursts: ten transactions on 10 and 11 September, totalling $7,750; eight transactions on 25 September, totalling $4,500; and 35 transactions on 14-18 October, totalling $65,000.
[23] Agreed statement of facts, 19 December 2022, annexure A, pages 6-33
A delegate of the Commissioner wrote to the bank from which the trust account operated on 3 October 2021, freezing the account under section 132 of the Agents Act from that date, and reminding the bank of the penalties for non-compliance.[24]
[24] Agreed statement of facts, 19 December 2022, annexure A, page 34
Two staff of Access Canberra’s Fair Trading and Compliance Investigations Team interviewed Mr Tasic on 26 May 2022.[25] Mr Tasic declined to have a lawyer or support person present. In the interview Mr Tasic acknowledged that as a licensed real estate agent he had used trust money other than in accordance with the directions of those for whom the funds were held on trust. He said that the funds had been used for his personal debts and for online gambling. Mr Tasic accepted that what he had done was wrong, expressed remorse, and took responsibility for his actions. He explained that he had found ways to repay the funds so that no clients had been disadvantaged, using funds advanced to him by his family.
[25] Agreed statement of facts, 19 December 2022, annexure A, pages 37-52, record of interview transcript; the transcript is headed “ACT Gambling and Racing Commission” but it is not clear if that Commission had any involvement in the interview, or was otherwise involved in the investigation
On 31 August 2022 the Magistrates Court issued a summons against Mr Tasic for breach of section 107(1) of the Agents Act.[26] On 29 September 2022 Mr Tasic appeared before the court, pleaded guilty, was convicted, and was fined $1,500.[27]
Consideration
[26] Agreed statement of facts, 19 December 2022, annexure A, page 53
[27] Agreed statement of facts, 19 December 2022, annexure A, pages 56-7
The ACAT’s powers to make a disciplinary order arise under sections 65 and 66 of the ACAT Act. Section 65 confers on the tribunal the power to make an order and sets out the considerations to be taken into account in deciding whether to make an order. Section 66 prescribes the orders that the ACAT may make. For the power in section 65 to be enlivened, the Tribunal must be satisfied that there is a ground. The possible grounds in respect of a licensed real estate agent are set out in section 41 of the Agents Act. The Commissioner contends that the first two of the listed grounds exist against Mr Tasic: that he has contravened fair trading legislation; and that he has contravened one or more rules of conduct.
As Mr Tasic has been convicted of contravening section 107(1) of the Agents Act, and the Agents Act is part of fair trading legislation, it is not in dispute that he has contravened fair trading legislation. With regard to the rules of conduct, the Commissioner identifies rules 8.2 and 8.10. I accept that Mr Tasic has contravened rule 8.10, in that he has admitted to using money from his trust account other than in accordance with the direction of those for whom he was holding the funds on trust. Rule 8.2, however, requires an agent to know the Agents Act and other relevant laws, and no evidence has been advanced to demonstrate Mr Tasic’s ignorance; it seems to me that it is more likely that Mr Tasic knew that what he was doing was against the Act, but for a period could not bring himself to stop doing it. On the other hand, I am satisfied that Mr Tasic contravened rule 8.3, in that he did not comply with the fiduciary obligations of a licensed agent. Chief among those obligations is the management of clients’ trust money. Clients – both vendors and purchasers – rely entirely on their agents to ensure that funds lodged with them as deposits are held securely pending settlement. Mr Tasic, again by his own admission, put that at risk.
Section 42 of the Agents Act permits the Commissioner to apply to the ACAT for disciplinary action if the Commissioner reasonably believes that a ground exists to do so. The Commissioner made such an application on 24 November 2022.
I am satisfied that there are grounds for disciplinary orders against Mr Tasic.
Section 65(3) of the ACAT Act is a non-exhaustive list of matters to be taken into consideration in determining what (if any) disciplinary order should be made. Before considering each of these, it is worth reflecting on the potential seriousness of the actions Mr Tasic took.
It is widely accepted that the buying or selling of real estate is for many people the most important financial transaction they will ever undertake. Many Australians have a large proportion of their wealth tied up in real property, or see the acquisition of an interest in real property as a path to wealth or security. The role of real estate agents in the transfer of property from vendor to purchaser is a critical one, with the agent effectively acting as intermediary. And during the period between exchange of contracts and settlement, the agent is custodian of the deposit made by the purchaser to secure the property. The agent holds those funds on trust and it is plain that the parties are reliant on the agent maintaining the integrity of those funds. In withdrawing funds for his own purposes, without the direction or consent of the parties to the relevant transactions, Mr Tasic jeopardised property transfers that were likely to be vital to the interests of those involved.
I note that the pattern of Mr Tasic’s withdrawal of trust money suggests that he was grappling with some difficulties. In particular, the withdrawal of a large amount over a short period (14-18 October 2021), with all the withdrawals being of moderate amounts (from $500 to $5,000, with most being for $1,000) suggests that his struggle with a gambling problem, as acknowledged in his interview,[28] had become severe. In the interview Mr Tasic refers to the need to meet some household bills, such as utilities, but accepts that most of the funds were used for online gambling.
[28] Agreed statement of facts, 19 December 2022, annexure A, pages 45-47, record of interview transcript
It is also worth noting that Mr Tasic made a number of attempts to return funds to his trust account at various points in the period during which the withdrawals took place.[29] Indeed for each of the first two concentrated periods in which funds were unlawfully withdrawn (10-11 September 2021 and 25 September 2021) there is one or more deposits returning all the withdrawn funds shortly afterwards.[30] The last, longest and largest set of withdrawals (14-18 October 2021) is followed by some significant deposits, but the total deposited is well short of the amount withdrawn over those few days.
[29] Agreed statement of facts, 19 December 2022, annexure A, pages 46-47, record of interview transcript
[30] Agreed statement of facts, 19 December 2022, annexure A, pages 8-9
I turn then to each of the considerations raised in section 65(3) of the ACAT Act.
Whether the person took reasonable steps to avoid the action that is the ground for occupational discipline
The Commissioner’s submission notes that the withdrawals occurred in a limited timeframe but that there was a large number of transactions, and there is no evidence that Mr Tasic did anything to avoid the actions he took. I am not persuaded that the number of transactions is a persuasive indication of anything except that Mr Tasic had a gambling problem; I cannot see that the wrong he did would have been lessened if he had withdrawn the same amount in a smaller number of larger transactions. But it remains true that he had not one but three falls from grace – three separate periods in which the withdrawals occurred. On each of the first two occasions he repaid the withdrawn funds, (and it is not clear how aware he was that the withdrawals would in any case have been noticed in his annual audit). It was only when the third period of sustained withdrawals reached much larger amounts that Mr Tasic took action to inform Mr Thomas.
This suggests that until the problem became so large and uncontrollable that he could not hope to resolve it on his own, Mr Tasic acted as if it was something that he could manage without outside help. Only when it got totally out of hand did he do what he should have done at first instance – he told someone what had happened and faced the consequences. This means that he was slow to take action to avoid a repeat of the problem. If he had acted on 12 September 2021 instead of a month later, this would have been a noticeably more minor infraction.
Whether occupational discipline has previously been used against the person for a similar act
This was a first offence. There is no record of any other occupational disciplinary action against Mr Tasic.
Whether the person has taken steps to mitigate the effect of the contravention
Mr Tasic returned all the withdrawn funds to the trust account. The Commissioner notes that this occurred only after the matter was reported to Access Canberra. Mr Tasic points out that that argument appears to imply that it would have been better if he had returned the funds before admitting to his unlawful behaviour, thus potentially covering up what he had done. In fact, the timing was very tight. Mr Tasic’s last unlawful withdrawal was on 18 October 2021; he contacted Mr Thomas on 19 October 2021, and Mr Thomas reported the matter to Access Canberra on 20 October 2021. Mr Tasic had by this time returned more than $26,000 to the trust account; he returned the remainder by 1 December 2021.
In my view Mr Tasic did all that he could to mitigate the effect of the contravention, by ensuring that funds were returned, and all affected property transactions were able to proceed on schedule.
The impact of the contravention on any other person
It is indeed fortunate that no settlements were unable to proceed and that Mr Tasic’s actions did not, in the event, have an impact on his clients. Nevertheless, it was clearly a possibility when Mr Tasic first contacted Mr Thomas that the opposite might occur. The Commissioner notes the seriousness of the consequences if it were to do so, and I have commented earlier on the crucial role in people’s lives typically played by a real estate agent when holding deposit money on trust in property transactions. Some recognition should go to Mr Tasic for making the effort he did to ensure that no clients were left without recourse; but it should also be recognised that it was his actions that put that outcome at risk in the first place.
The likelihood that the person will act in a way that is a ground for occupational discipline in the future
Mr Tasic evidently has some form of addiction to gambling and this makes him an unsuitable person to administer a trust fund, so long as the problem persists. I understand he will not be working in the real estate industry and he will not be in a position to access trust funds. It may therefore seem unlikely that he will find himself subject to disciplinary action in the future. But whether he is or not depends on the field in which he chooses to work, and on that point I have no evidence. I therefore cannot be sure about the likelihood of future disciplinary action.
Whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for
The Commissioner seeks two disciplinary actions: disqualification from applying for a real estate licence for two years; and a public reprimand. Mr Tasic does not oppose the disqualification, but argues against the public reprimand. He makes the point that he not only came forward voluntarily and acknowledged his unlawful actions, but also returned all the funds to the trust account, withdrew from trading while the investigation proceeded, and sought assistance for his gambling addiction. He describes a public reprimand as an “extreme” form of additional punishment.
I have no hesitation in agreeing to the disqualification sought. No one would expect Mr Tasic to be put in charge of other people’s money until it is clear that he is no longer tempted by the availability of ready funds.
With regard to the reprimand, the Commissioner accepts that Mr Tasic needs no further personal deterrence, but points to the importance of others in the real estate profession being made aware of Mr Tasic’s transgressions and the consequences that flowed from them, arguing that this gives wider benefits that outweigh any detrimental effect on Mr Tasic.
The tribunal may consider any other relevant matter
The Commissioner argues that Mr Tasic’s criminal conviction is another matter I should take into account. But Mr Tasic’s criminal conviction is already public; he pleaded guilty to the charge against him; and he has paid the fine imposed. He has received a public punishment, has accepted responsibility, and has discharged his criminal culpability in the matter. I do not see that he should receive further disciplinary action for having done so.
Possible disciplinary orders
The ACAT Act sets out in section 66 a series of disciplinary actions that can be contemplated in any given matter. The list, which is non-exhaustive, includes at section 66(2)(a) a reprimand and at section 66(2)(f) disqualification from applying for a licence for a stated time. Thus both of the disciplinary actions sought by the Commissioner fall within the Tribunal’s powers. But that is not the end of the matter; it is for this Tribunal to decide what disciplinary action is appropriate. Of the other possibilities, some, such as requiring a written undertaking, requiring that the person undertake specified training, giving the person a direction or putting conditions on the person’s licence are inappropriate because Mr Tasic has left the real estate profession. Cancelling Mr Tasic’s licences is not appropriate because his two licences expired on 30 June 2022.[31] Imposing a fine is another option, but the Magistrates Court has already issued a fine as a penalty in the criminal proceedings. The two options urged by the Commissioner are therefore those best suited to the circumstances.
[31] The Commissioner’s submission states that Mr Tasic applied for renewal of his licence but I do not appear to have any evidence to that effect.
Section 66 of the ACAT Act refers to “a reprimand” as a form of disciplinary action, without making any distinction between a private and a public reprimand. Mr Tasic, and equally his wife, appear to see a “public reprimand” as some extreme form of punishment; but in my view the effect of a public reprimand has already been applied, through the criminal prosecution, conviction and fine already imposed. A reprimand by this Tribunal would be made public simply by the publication of this decision (assuming the decision includes an order imposing a reprimand). In a sense, a published decision that records Mr Tasic’s unlawful use of trust fund money includes an implied public reprimand whether or not an order imposing a reprimand is part of the decision.
It is not clear to me what purpose a “private reprimand” would serve. It could be done: Mr Tasic’s anonymity might be preserved by not publishing the decision, or by publishing it with his identity anonymised. Section 38 of the ACAT provides that the Tribunal’s hearings must be public, but enables an exception under section 39, which allows the Tribunal to make various forms of confidentiality order, either on application by a party or on the Tribunal’s initiative. Sections 38 and 39 together establish the principle that the Tribunal does its work in public except where the interests of those who would be protected by anonymity (or other form of confidentiality) outweigh the public interest in the open administration of justice.
Mr Tasic’s concern seems to me to be somewhat exaggerated. It is not as if some public display is involved in the imposition of a reprimand, or some additional action would be taken to publicise it. The Commissioner states, accurately, that the purpose of disciplinary matters such as the present is to protect the public, uphold professional standards, and maintain public confidence in the profession. A public reprimand serves these purposes by deterring other agents from committing similar breaches and by demonstrating to the public that the standards of agents are being upheld. There is little evidence to demonstrate the effectiveness of these actions – none is offered by the Commissioner – which makes it more difficult to balance the public benefits with the private detriment that further disciplinary measures might have on Mr Tasic and his family. But I think that this decision, if published in the usual way, is likely in practice to add little to the burdens Mr Tasic has already had to bear, and whether or not I make an order for a reprimand will be a minor aspect of this decision, in terms of the public impact on Mr Tasic. As for the idea of a “private reprimand”, it would seem to me that no purpose is served by a reprimand without witnesses.
Some help is provided by the case law in the area. Only one reported case in the ACT deals with discipline of real estate agents under section 107 of the Agents Act: Commissioner for Fair Trading v Blinksell,[32] where the facts were very different. The respondent in that case withdrew funds from the trust fund for his own purposes, but lied about it and attempted to cover it up. The interests of the agent’s clients were directly impacted. A more severe set of penalty actions was imposed than is contemplated in the present matter. There are several other cases where a licensed agent failed to provide the annual audit of an agency’s trust fund, which is unlawful under section 115 of the Agents Act. In those cases, for example Commissioner for Fair Trading v Giersch,[33] Commissioner for Fair Trading v Lamaro,[34] Commissioner for Fair Trading v McPherson,[35] Commissioner for Fair Trading v Property Plaza,[36] Commissioner for Fair Trading v Yes Real Estate[37] a fine was imposed as well as a public reprimand. It would seem to me that the unlawful withdrawal of funds from a trust fund for private purposes is considerably more troubling than a failure to complete the annual audit of the fund, although in all the cited cases there were other considerations, such as a wider failure of proper accounting and record-keeping practices. Nor was every case characterised by the complete acceptance of responsibility for wrong-doing that Mr Tasic has shown. Nevertheless, if in the audit cases a public reprimand was warranted, I cannot see that it is not warranted in the present matter. And despite my comments that a reprimand has already been delivered or implied by this decision and even more by the criminal prosecution, it would surely be odd if Mr Tasic was not reprimanded at all in this decision.
[32] [2014] ACAT 11
[33] [2016] ACAT 153
[34] [2017] ACAT 1
[35] [2017] ACAT 6
[36] [2019] ACAT 109
[37] [2019] ACAT 103
I have noted Mr Tasic’s remorse and acceptance of responsibility. In the record of interview Mr Tasic did not try to escape or excuse his responsibility for his actions. The interview is characterised by what seems to be a complete frankness on his part. The only explanation he offers is the stress placed on him by the rigours of lockdown. He would not be the only person for whom the isolation of lockdown has been a challenge.
Conclusion
Mr Tasic has done what he can to accept responsibility and to make amends. Everything suggests that he is genuinely remorseful for what he has done; he has proceeded to get help to make sure that similar problems do not recur. My intention is that my orders should not hinder Mr Tasic in establishing himself in a new field. I have made orders for a public reprimand and I have disqualified him from applying for a real estate agent’s licence for two years.
………………………………..
Senior Member M Hyman
| Date(s) of hearing: | On the papers |
| Solicito for the Applicant: | Ms S Kivela, ACT Government Solicitor |
| Respondent: | Mr I Tasic |
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