In the Matter of the Commercial Tribunal Act 1982: Gopi BAHADUR Roea v Trevor Collins No. SCGRG 93/2108 Judgment No. 4393 Number of Pages 5 Administrative Law

[1994] SASC 4393

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE J

CWDS
Administrative law - statutory appeals from administrative authorities to courts - Appeal against an order made by the Commercial Tribunal - Travel Agents Act - failure to comply with financial viability criteria of trustees failure to keep proper accounts - conduct of agent - convictions for 21 counts of fraudulent conversion - ss.13(8)(b)(i), 13(8) (a), (13(6) of the Act discussed - sentence and orders - disciplinary powers - ss.13, 15 and 18 of the Act discussed - s.14 of the Act wide enough to enable the Tribunal to make an order prohibiting the appellant from being employed by anyone as a travel agent during the period of his disqualification - appeal dismissed. TravelAgents Act, 1986.

HRNG ADELAIDE, 10 January 1994 #DATE 10:1:1994
Appellant:                 In person
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 LEGOE J In this matter, the appellant is appealing against an order made by the Commercial Tribunal, made on 19 October 1993. The order of the Tribunal was that the appellant be disqualified from holding a licence under the TravelAgents Act for a period of ten years. The Tribunal added the rider reminding the appellant that the effect of the disqualification is that if, during the next ten years, he was employed or engaged in the business of a travel agent, then he would be committing an offence and the person or body who employed him would also be committing an offence by reason of the provisions in s.14 of the Travel Agents Act.

2. The background facts, very briefly, are that the appellant has been engaged, in Adelaide, in the business of a travel agent for a period of some 12 years. Prior to that, he was engaged overseas in a travel agency business. He has also engaged in the business of a travel agency for a period of two or three years in Melbourne. In 1990 the appellant received a notice from the travel compensation fund to the effect that he was not eligible for continued participation in the compensation fund, by reason of the fact that at that stage he did not comply with the trustees financial viability criteria. The fund required the appellant to provide an additional bank guarantee of $50,000 in favour of the fund in the format indicated in the notice. The appellant was given 21 days to comply with the fund's recommendation in that regard, he did not comply as he was financially unable to do so and at that stage the appellant closed down his business. That occurred on 27 June 1990. The appellant confirms this when he stated that the closure of his business was due to the lack of funds for a bank guarantee. At the same time he surrendered his yearly travel agency licence voluntarily.

3. On 28 May 1990, the appellant was convicted of failure to keep proper accounts, pursuant to s.18 of the Travel Agents Act 1986. He pleaded guilty to that offence and after a number of adjournments and requests to put the matter right, he was eventually fined the sum of $600.

4. On 6 April 1993, the appellant was convicted of 21 counts of fraudulent conversion, contrary to s.184 of the Criminal Law Consolidation Act. He was sentenced for those offences to a term of imprisonment for three years with a non-parole period of two years, which sentence was suspended upon him entering into a good behaviour bond of $500 to be under the supervision of a probation officer as well as doing 200 hours of community service within 18 months.

5. On 21 May 1993, the respondent to this appeal lodged a complaint at the Commercial Tribunal alleging that there were grounds for disciplinary action under the Travel Agents Act, against the appellant. The grounds specified in the complaint were:
    - Firstly, in the course of carrying on business as a travel
    agent, he had been guilty of conduct that constituted a breach of
another Act, contrary to s.13(8)(b)(i) of the Travel Agents Act.
    Particulars of that paragraph in the complaint relate to the
    conviction and sentence for the 21 counts of fraudulent conversion
    already referred to.
    - Secondly, the complaint alleged that the appellant, in the
    course of carrying on business of a travel agent, had been guilty
    of conduct which constituted a breach of. S.13(8)(a) of the
    Travel Agents Act. The particulars of the second paragraph repeat
    the allegations by way of particulars in the first paragraph and
    add that on 28 May 1990, the respondent was convicted of having
    between 1 May 1989 and 5 June 1989 failed to keep necessary
accounting records, contrary to s.18 of the Act.

6. The hearing before the Commercial Tribunal took place on 19 October 1993. In its ex tempore reasons, the Tribunal referred to the inquiry that had been held that day and to the allegations in the complaint. The Tribunal stated: "At the last directions hearing, before this inquiry was heard, the respondent (that is the appellant) indicated that he admitted all allegations in the complaint and wished to be heard only on the form of disciplinary action to be imposed." The Tribunal went on to refer to documents which had been produced by the appellant to the Tribunal. These documents indicated that he was apparently resiling from the concession that had earlier been made at the time of the directions hearing, and claimed that he was innocent of the offences with which he was charged.

7. That submission was not, as I understand the appellant, who appeared in person before me, pressed on this appeal. Evidence was received about the convictions referred to in the complaint and upon proof that the convictions had been recorded, the Tribunal recorded the formal finding: "That there were grounds for disciplinary action to be taken against the respondent in relation to the matters set out in the complaint."

8. This conclusion by the Tribunal was made by reason of the provisions of s.13(1) of the Act. I can see no error of fact, or law, in that conclusion.

9. The Tribunal then proceeded to hear submissions from counsel for the complainant and from the respondent at the Tribunal hearing as to what form of disciplinary action might be appropriate. The Tribunal discussed the various alternative orders that could be made pursuant to s.13(6) of the Act. The Tribunal also referred to a number of excellent references which were submitted by the appellant to the Tribunal which have also been handed to me on the hearing of this appeal. The Tribunal added, however, that there were some people who were not satisfied with the respondent's services, namely, those from whom he fraudulently converted various amounts totalling $82,000 between 1989 and 1990 when he ceased to carry on business.

10. Reference was then made to the sentencing remarks of the learned magistrate in relation to the 1990 conviction for failing to keep accounts and to the remarks of the District Court judge who sentenced the appellant for the charges of fraudulent conversion in April of 1993.

11. The Tribunal concluded that there was absolutely no doubt in their minds that the respondent should not be permitted to run a travel agency business in this state. The appellant had shown himself to be dishonest and unscrupulous and with no sense of responsibility for his actions whatsoever. The Tribunal added that the appellant had made no real attempt to comply with the obligations placed on licensed travel agents in this State, to say nothing about his lack of morality or ethics in fraudulently converting client's money.

12. In addition, the Tribunal were of the opinion that the appellant was not the type of person who should be involved in working in a travel agency in any capacity whatsoever.

13. The Tribunal referred to the appellant's statement expressing his views about how businesses should be conducted, and his complete lack of remorse for the offences that he had committed as well as his tendency to turn around and blame all his problems on other people. The Tribunal considered that he is not the sort of person who should be employed in the travel industry.

14. After considering the various alternative orders that could be made, the Tribunal concluded, in view of the seriousness of the matter, and, as the Tribunal had taken the view that the appellant should not be involved in anyway at all in the travel agency business, that disqualification was the appropriate form of disciplinary action to take. Consequently, the Tribunal made the order referred to above. In conducting his own appeal before me, the appellant has said everything that could possibly be said in favour of the appeal. He complained, initially, that the Tribunal had refused to, as he put it, suppress the case. In other words, to suppress, as I understand it, publicity of the case and of the order that was made. This is not taken as a ground of appeal and anyway I would reject it.

15. Secondly, the appellant complained that the Tribunal had ignored his request of 10 September 1993 asking for time to obtain legal representation before the Tribunal, but as I pointed out, the hearing of the enquiry did not take place until some six weeks later. It seems to me to have been adequate time to have found the services of a lawyer.

16. The appellant's real complaint was not so much the ten years disqualification as a licensee, but the fact that the Tribunal had ordered that he was not to be employed, or was to be disqualified from being employed in anyway, including employed under supervision of a travel agent licensee.

17. Reference was made to a letter, exhibit 7, from Boulevard Travel Centre, dated 18 October 1993 which was on file. In that letter, Mr Frank Gregurev stated that he would have no hesitation in employing the appellant in his own agency if the appellant was willing to comply with terms to be placed on him so that he works under Mr Gregurev's day to day supervision and guidance. The writer of the letter stated that the appellant would be provided with this opportunity to work for him for a specified period of time. The writer then asked the authority to consider the long reputation which the appellant had enjoyed and the professionalism that he had exhibited in the industry.

18. The appellant appeared to be suggesting to me that there was no power for the Tribunal to make any such order, namely, that he was not to be employed by anyone in the travel agency business during the ten years disqualification period or, alternatively, if there was such power then the Tribunal exceeded its discretionary power in making that order.

19. I would reject that submission, firstly, on the grounds that the TravelAgents Act, in Division II of Part II makes provision, in ss.13 to 15, inclusive for the disciplinary powers of the Tribunal. I have already made reference to s.13, and in particular, to sub-s.(8) which provides that there is proper cause for disciplinary action against a respondent who has been guilty of conduct which constituted a breach of the Travel Agents Act. In the case of the appellant that was the breach of s.18 for the failure to keep accounts, or, in the course of carrying on business been guilty of an act that constituted a breach of another act, namely, the fraudulent conversion offences.

20. Section 14 provides: "Where a person who is disqualified from holding a licence, is employed or otherwise engaged by a licensee, for the purposes of the licensee's business as a travel agent, that person is, and the licensee, are each guilty of an offence and liable to a penalty not exceeding $5,000." It is clear to my mind that the wording of that section is sufficiently wide to cover the rider which was made by the Tribunal on its order of disqualification. Having disqualified the appellant for a period of some ten years, from holding or obtaining a licence under the Act (which order is apparently not the subject of complaint on this appeal) the Tribunal then exercised its powers in relation to that person being disqualified from being employed or otherwise engaged - I emphasise the words "otherwise engaged", by a licensee - that is, another licensee - "for the purposes of the licensee's business as a travel agent".

21. I emphasise "for the purposes of the licensee's business as a travel agent". In my opinion, this section clearly gives the Tribunal jurisdiction, in the appropriate case, to direct the appellant's attention to the rider announced by the Tribunal when making the order for disqualification.

22. The only remaining question is, whether it was a proper case for making the additional order under s.14. In my opinion, this was a case where the appellant had committed a very serious breach of s.13(8)(b)(i) of the Act. The offences of fraudulent conversion clearly established that the appellant had personally used the monies of his clients, which had been paid to him on trust for the purpose of paying out the flight tickets or other travel arrangements which had been made for that particular client.

23. Those monies were not monies of the appellant. They were monies that at all stages belonged to other people. The airline companies or other bodies who issued the tickets or vouchers for the travel arrangements of the clients were apparently not paid, and therefore the insurance fund had to meet the liabilities of the individual travellers.

24. The appellant argued, quite illogically in my opinion, that the clients had not lost their money. In one sense they hadn't, because there was an insurance fund. But the serious offences of fraudulent conversion were established, and indeed the appellant pleaded guilty to all 21 counts.

25. In my opinion, the magnitude of this offending, in the circumstances, left the Tribunal with no alternative but to make the order for disqualification pursuant to s.13 which carried with it a prohibition against employment, or being otherwise engaged in the travel agency business or any other licensee, pursuant to s.14. For these reasons, I will dismiss the appeal. The order of the court is that the appeal is dismissed, and that the appellant pay the respondent its costs of and incidental to the appeal, which I fix at $150.