Mavaddat v Real Estate & Business Agents Supervisory Board - [2009] WASCA 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAVADDAT -v- REAL ESTATE & BUSINESS AGENTS SUPERVISORY BOARD [2009] WASCA 179

CORAM: McLURE JA
PULLIN JA
NEWNES JA

HEARD: 16 JUNE 2009

DELIVERED : 19 OCTOBER 2009

FILE NO/S: CACV 92 of 2008

BETWEEN: MICHAEL MAVADDAT
Appellant
AND
REAL ESTATE & BUSINESS AGENTS SUPERVISORY BOARD
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE J CHANEY (DEPUTY PRESIDENT)

MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR A MACNAGHTEN (SESSIONAL MEMBER)

Citation :REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MAVADDAT [2008] WASAT 193
File No :VR 281 of 2005

Catchwords:

Real estate agents - Disciplinary proceedings - Appeal against decision of State Administrative Tribunal to cancel real estate agent's licence and triennial certificate and disqualify appellant permanently from holding a real estate agent's licence and triennial certificate - Whether Tribunal misconstrued the object of disciplinary action - Whether Tribunal failed to take into account relevant factors - Whether permanent disqualification only appropriate where the person is found to be incapable of ever establishing they are a fit and proper person - Whether penalty manifestly excessive

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 60(1), s 60(3), s 61(3c), s 61(5), s 103(1), s 103(2)
State Administrative Tribunal Act 2004 (WA), s 105(3)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr T V Hurley
Respondent: Mr P A Tottle

Solicitors:

Appellant: Arns & Associates
Respondent: Tottle Partners

Case(s) referred to in judgment(s):

A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) 45 LGR 635
Briginshaw v Briginshaw (1938) 60 CLR 336
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Ex parte Tziniolis; Re Medical Practitioners Act (1967) 84 WN (Pt 2) (NSW) 275
Grljusich v Andrews [2003] WASCA 206
Hoile v Medical Board of South Australia (1960) 104 CLR 157
Lee v Mavaddat [2005] WASC 68
Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1
New South Wales Bar Association v Cummins [2001] NSWCA 284
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re A Barrister and Solicitor [1979] 40 FLR 1
Real Estate and Business Agents Supervisory Board and Kamil [2008] WASAT 189
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

McLURE JA: I agree with Newnes JA.
PULLIN JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of the State Administrative Tribunal (the Tribunal) cancelling the appellant's real estate agent's licence and disqualifying the appellant permanently from holding a licence or a triennial certificate.
In the proceedings before the Tribunal, the appellant (Mr Mavaddat) admitted two offences under the Real Estate and Business Agents Act 1978 (WA) (the Act) and admitted that he was guilty of, or did not challenge the findings in earlier Supreme Court proceedings in respect of, certain other conduct which the Tribunal found gave rise to cause for disciplinary action against him under s 103(2) of the Act. The only issue before the Tribunal was the sanction to be imposed pursuant to s 103(1) of the Act.
The Tribunal concluded that the nature of Mr Mavaddat's conduct was such as to render him unfit to be licensed as a real estate agent. It found that the public interest required that Mr Mavaddat be permanently disqualified from holding a real estate agent's licence or a triennial certificate. Mr Mavaddat appeals against the Tribunal's decision.

The statutory framework

It is convenient at the outset to outline the relevant statutory provisions.
The respondent (the Board) is established by s 6 of the Act. One of the functions of the Board is to administer the scheme of licensing and registration established under the Act: s 8A.
Under s 26 of the Act, a person is not permitted to carry on business as a real estate agent unless they are licensed under the Act and hold a current triennial certificate in respect of the licence. A 'real estate agent' is defined in s 4 to mean, in effect, a person whose business is to act for consideration in respect of the sale, purchase, exchange or other disposal, or the lease or letting, of land or an interest in land.
Under s 27(1)(b) of the Act, a natural person who is 'a person of good character and repute and a fit and proper person to hold a licence' may be granted a real estate agent's licence.

Pursuant to s 102(1) of the Act, the Board may (relevantly) allege to the Tribunal that there is proper cause for disciplinary action against a real estate agent.
Section 103(1) of the Act provides, in effect, that if in proceedings under s 102(1) the Tribunal is satisfied that proper cause for disciplinary action exists, it may (relevantly) do any one or more of the following:
1.reprimand or caution the agent;
2.impose a fine not exceeding $10,000;
3.suspend or cancel the agent's licence and any triennial certificate in respect of the licence and in addition, disqualify the agent either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the Tribunal, from holding a licence or triennial certificate, or both.
Section 103(2) provides that there will be proper cause for disciplinary action against an agent if, among other things, the agent has acted in breach of any requirement of the Act or any other cause exists that in the opinion of the Tribunal renders the agent unfit to hold a licence.
At all relevant times, Mr Mavaddat held a real estate agent's licence and a triennial certificate under the Act.
By virtue of s 105(13) of the State Administrative Tribunal Act 2004 (WA), this appeal from the decision of the Tribunal is not limited to a question of law but may be brought, with leave, on any ground.

Background

The Board instituted proceedings before the Tribunal, pursuant to s 102(1) of the Act, alleging contraventions by Mr Mavaddat of s 60(1) and s 60(3) of the Act, and of s 61(3c) and s 61(5) of the Act, and alleging that by reason of certain specified conduct of Mr Mavaddat, there was proper cause for disciplinary action against Mr Mavaddat pursuant to s 103(2) of the Act.
After the first day of the hearing before the Tribunal, agreement was reached between the Board and Mr Mavaddat that Mr Mavaddat would admit, or would not challenge, most of the allegations against him and the Board would not pursue two of the allegations in the proceedings.
The material facts in respect of certain of the allegations were admitted by Mr Mavaddat. In addition, Mr Mavaddat did not challenge certain allegations or findings in a Supreme Court action, Lee v Mavaddat [2005] WASC 68 (the action), that he had misused funds belonging to a company which he had formed with a former business associate, Mrs Lee; that he had breached fiduciary duties owed to Mrs Lee; that he engaged in unconscionable conduct towards Mrs Lee; and that he had lied and equivocated in his testimony in the action and demonstrated himself to be deceitful.
It is necessary to set out in some detail the specific contraventions and conduct concerned. The matters admitted or not challenged by Mr Mavaddat were largely identified simply by reference to specific paragraphs in the reasons for judgment of Roberts‑Smith J in the action. In describing those matters, I will simply set out the substance of what is said in the judgment, noting the relevant paragraph of the judgment.

The admitted offences

Mr Mavaddat admitted that he had committed two offences. They were:
1.that contrary to s 60(1) and s 60(3) of the Act (the first offence), he received the sum $133,000 as commission on the sale of premises at 237 ‑ 241 Hay Street Subiaco (the Subiaco property) when he did not have a written valid appointment to act for the vendor, Absica Pty Ltd (Absica) under s 60(2) of the Act; and
2.that contrary to s 61(3c) and s 61(5) of the Act (the second offence), he demanded and received the sum of $133,000 as consideration for his services in relation to the sale of the Subiaco property, that sum being unjust in the circumstances.
At the relevant time, Mr Mavaddat practised as a real estate agent under the name Keywest Realty (KWR). He was the sole director and shareholder of Keywest International Group Pty Ltd (Keywest). Mrs Lee and her husband, Mr Lee, were the directors and shareholders of Courtza Pty Ltd (Courtza).
The Subiaco property was owned by Absica, of which Mr Mavaddat's accountant, Mr Lombardo, was a director and shareholder. On 2 June 1998, Absica appointed Jones Lang Wootton to be its exclusive agent for sale of the property at an asking price of $725,000. On 16 September 1998, Absica executed an agency agreement with a firm called 'Growth Realty', for the same asking price. Neither firm was able to sell the property at that price. On 2 August 1999, Absica engaged another agent, Stanton Hillier Parker, but reduced the asking price to $690,000. Absica agreed to pay Stanton Hillier Parker a commission of $15,000. That was 2.1 % of the sum of $690,000.
On 25 August 1999, Absica accepted a conditional offer from Citifidelity Nominee Co Pty Ltd (Citifidelity) to purchase the Subiaco property for the sum of $690,000 but the sale fell through.
Although KWR had not entered into an agency agreement with Absica, in late August 1999 Mr Mavaddat presented Mr Lombardo with an offer by Courtza (or nominee) and Keywest to purchase the Subiaco property for the sum of $823,000. The offer was made on a printed standard‑form offer and acceptance. One of the type-written clauses in the offer stated that disclosure statements had been given to all parties disclosing that KWR was entitled to a commission payable by Absica. No disclosure statement accompanied the offer and there was no reference in the offer to the amount of the commission.
Mr Lombardo first became aware of the commission that Mr Mavaddat was seeking when Mr Mavaddat presented the offer. Mr Lombardo asked Mr Mavaddat about the amount of the commission and Mr Mavaddat told him it was $133,000. It was not coincidental that deduction of a commission of that amount would have left the vendor with the sum of $690,000, which was the amount Absica had agreed to accept from Citifidelity.
Absica did not accept the offer. The directors of Absica decided to demand the sum of $843,000 for the property. They also asked for the disclosure notice because of the size of the commission, which was well above the rates recommended by the Real Estate Institute of Western Australia.
Mr Mavaddat returned with such an offer and a disclosure notice dated 30 August 1999. The disclosure notice stated that Mr Mavaddat was a director of Keywest and a licensed real estate agent, and that KWR was entitled to charge, and Absica was required to pay to KWR, a commission of $133,000 upon satisfactory settlement of the contract of sale. The disclosure notice was signed by Mrs Lee on behalf of Courtza.
The offer by Courtza and Keywest to purchase the Subiaco property for $843,000 was accepted by Absica on 31 August 1999.
At no time did KWR have a written agency agreement with Absica, as required by s 60(2) of the Act, and there had been no discussions between Mr Mavaddat and Mr Lombardo about any agency agreement. Instead, on becoming aware of Absica's attempts to sell the Subiaco property through other agents, and without any authority from Absica, Mr Mavaddat had placed a newspaper advertisement in the name of his own business describing (but not identifying) the property as being for sale for $820,000.
The amount of the commission of $133,000 demanded and received by Mr Mavaddat represented 15.78 % of the purchase price. In the action, Roberts‑Smith J found that on any view that amount was inordinate. Mr Mavaddat conceded at the trial that it was 'not in the ordinary course to a significant degree'. He agreed with Mr Lombardo's evidence that it was 'extreme' ([439]).
At the trial, evidence was given by Mr Alan Maller, who had been a registered real estate salesman for 30 years, that immediately prior to deregulation of the real estate industry in October 1998 the commission on a purchase price of $850,000 would have been $19,375. It had been his experience since deregulation that the majority of real estate agents operating in the Perth metropolitan area charged a commission of between 2 % and 4 % of the purchase price of a property, although a slightly higher rate might be charged if there were exceptional circumstances relating to the property in question. He was not aware of any real estate agent charging more than 5 %. Thus, after deregulation, he would have expected a commission of between $16,860 and $33,720 on a property priced at $843,000.

The admitted conduct

The conduct which, for the purposes of the proceedings before the Tribunal, was admitted or not challenged by Mr Mavaddat was as follows.

The false claim of an academic qualification

Mr Mavaddat admitted that for many years in his business correspondence he had held himself out as having a Bachelor of Science degree obtained in the United States of America. In fact, he did not hold such a degree. At the trial of the action, Mr Mavaddat accepted that his use of the qualification was 'a serious lie' ([342]).

The false statements made to Mr Lee

Mr Mavaddat admitted that in financial dealings with Mr Lee he had lied in various statements he made to Mr Lee in a facsimile dated 6 December 1999 ([343]). The facsimile, which purported to report developments in relation to the Subiaco property, was as follows:
Lee Son
I have tried to phone you many times in last few days. I like to report to you:
1)I have received stamp duty funds thank you. I had no t/t advise [sic] and therefore did not know that the funds had come.
2)We had signed everything so to go to settlement subject to valuation of hotel suites.
3)I have been trying three different banks over the last three months and spent lots of time and energy and money to get the finance.
4)The banks will not finance the hotel suites. I have enclosed the last letter from St George Bank.
5)I guaranteed your extra borrowing of $83,000.00 to pay out Commonwelath [sic] Bank and gave security of my other properties including my family home, however the valuation report for Emerald was not acceptable to the bank.
6)I have paid $20,000 non refundable deposit to extend the purchase contract to end of this month. I have also already spent over $10,000 in valuation report and other fees. So far spent $30,000.00, because we will make profit if we sell today of $250,000.AUD.
7)Your money is there for you at any time, however, I have lost a lot of face with banks, and owners and friends that know that we have finished the Subiaco deal.
8)Mrs Lee is very anxious to start her business. I have many commitments, and have already locked away $160,000 for the past few months in this deal …
9)Subiaco properties are hot and the values have gone up, and the property is worth a lot more than three months ago. From the project at Hay Street we are to gain some $850,000 from development and we have already been offered $250,000 more.
10)We can not afford to lose this opprtunity [sic]. Please assist in getting this deal finished, honestly I do not have any additional funds to give until March when I can give $450,000 from sale of other properties. I have also placed $50,000 working capital into our company Ark Securities.
11)When the deal is completed then we can invite other investors in this way we do not lose profit that we have gained.
12)There are two options at the moment:
A)That you pay the Emerald which you owe $83,000 off and also help with additional $50,000 to finish the deal, so have enough money to carry on the project, and make profit.
B)Or you offer your property at 116 Forrest as security in exchange of Subiaco at much lower interest rate of 6.88% rather than 8.7%. The deal can be done in the next two weeks and we will then pay back Forrest Street in the first twelve months.
I have attached bank letter as well as news paper [sic] reports on Subiaco.
Lee Son please help so I can prove to you how we can make money as well as not loosing [sic] face.
I can not at this stage ask from Bingelli or my other friends to put money. I will loose [sic] a lot of face. But after the deal is settled we can ask them to but [sic] funds to carry on project.
Regards Michael.
Mr Mavaddat admitted that the following parts of the facsimile were untrue:
•The claim in cl 5 that he had given security over his family home was untrue ([343]).
•The claim in cl 5 that he had given security over his 'other properties' was untrue because he did not have any other properties ([344]).
•The claim in cl 6 that he had paid a $20,000 non‑refundable deposit to extend the contract was untrue ([345]).
•The claim in cl 6 that he had spent over $10,000 on valuation and other fees was untrue ([346]).
•The claim in cl 6 that a profit of $250,000 could be made if the property was sold at the date of the facsimile was untrue because Mr Mavaddat knew that such a profit was not possible at the date of writing. Such a profit would only be possible after receipt of development approval and the construction of six units ([347]).
•The claim in cl 8 that he had locked away $160,000 of his own money in the deal was untrue ([349]).
•The claim in cl 9 that he had been offered some $250,000 more than the price paid for the property was untrue as he had received no offer ([348]).
•At the trial of the action, in response to the proposition put to Mr Mavaddat that the claim in cl 10, that after March he would be able to contribute funds from the sale of other properties, was a lie, Mr Mavaddat said he was 'not quite certain' it was a lie ([350]).
•The claim in cl 10 that $50,000 had been deposited into Ark Securities was untrue ([351]).
Mr Mavaddat did not challenge the finding by Roberts‑Smith J that, although he admitted the dishonesty, in cross-examination 'he continually attempted to evade, to obfuscate, to dissemble and to attribute blame to [Mrs Lee]' ([343]). Mr Mavaddat also did not challenge the finding that his contention at the trial that Mrs Lee had manipulated him into sending the facsimile 'strikingly suggests desperate fabrication "on the run" in cross‑examination' ([352]).

False statements to St George Bank

Mr Mavaddat did not challenge the following findings in the action:
(a)that through his accountant, Mr Lombardo, he submitted a letter to St George Bank Ltd (the Bank) on 28 October 1999 containing false statements for the purpose of obtaining financial accommodation from the Bank, those false statements being:
(i)that he had received income of $236,078 for the financial year ended 30 June 1999, including two amounts totalling $150,000, described as 'Kung Hee consultation' and 'Lee consultation', when he knew that the sum of $150,000 referred to was money lent by Mrs Lee to Keywest, the statement being a deliberately false statement that he had intended the Bank to rely upon for the purposes of approving a substantial loan ([354] ‑ [356]);
(ii)that he had received income of $17,250 for the financial year ended 1998, described as 'Marble Beach consultation', when he knew that the sum in question was a loan from a Mr Tinelli to Mr Mavaddat, which Mr Mavaddat was obliged to repay ([357]); and
(iii)that there was an amount of some $240,000 in unconditional settlements due in the following three months. In fact, there was a conditional contract with an agreed commission of $200,000. Mr Mavaddat knew the information was misleading. (He could not recall what the other $40,000 related to ([358]));
(b)that in April 2000, he had sent a facsimile dated 28 April 2000 to Mr Lombardo for the purpose of the preparation of the draft income tax return which was to be submitted to the Bank for the purpose of obtaining a loan for the purchase of a property at 817 Canning Highway Applecross, which facsimile falsely stated that he had earned the sum of $150,000 as fee income. The money had been lent by Mrs Lee to Keywest ([360]);
(c)that he was prepared to, and did, through Mr Lombardo, create false documents to mislead the Bank, and that he created, or caused to be created, other deliberately false documents to obtain financial or other benefits and he was ready to use and manipulate others for that purpose ([376]).

False statements to Bunnings

Mr Mavaddat did not challenge the finding in the action that he made false statements in a credit application, dated 30 October 2000, which he made to Bunnings on behalf of Ark Securities. Mr Mavaddat agreed that in the application he:
(i)falsely claimed to hold the qualification of Bachelor of Science ([361]);
(ii)listed a property known as Dizzy Lamb Park as an asset of Ark Securities, valued at $3,000,000, when Ark Securities did not own the property ([363]);
(iii)listed a property at 116 Forrest Street South Perth as an asset of Ark Securities, valued at $400,000, when the property was not owned by Ark Securities ([364]);
(iv)listed a property at 239 ‑ 241 Hay Street Subiaco as the property of Ark Securities, worth $1,250,000, when he 'hoped' the property was worth $900,000 at that time ([365]);
(v)listed a property at 28 Simpson Street Applecross as the property of Ark Securities, worth $800,000, when the property was not owned by Ark Securities but by Mr Mavaddat personally, and he believed it to be worth $650,000 ‑ $675,000 at that time ([366]);
(vi)listed a property known as 'Emerald Hotel' as an asset of Ark Securities, valued at $400,000, when the property was not owned by Ark Securities ([372]);
(vii)falsely listed debtors of $150,000, when Ark Securities had no debts owing to it ([368]);
(viii)falsely listed vehicles to the value of $200,000, when Ark Securities did not own any vehicles ([367]);
(ix)falsely listed a number of assets including cash, tools, plant and stock which did not exist ([368] ‑ [371]).
Mr Mavaddat accepted that when asked at the trial why he had been prepared to lie to get finance, he had said 'I will not be the first one. It is industry standard' ([371]).

The dishonest statements in an affidavit

Mr Mavaddat did not challenge the finding in the action that an affidavit he swore on 17 August 2001 for the purposes of the action was dishonest. The affidavit was for the purposes of opposing an application by Mrs Lee for asset preservation orders. Mr Mavaddat did not challenge the finding that it was dishonest in the following respects:
(a)there was annexed to the affidavit a draft tax return which included an amount of $150,000 as Mr Mavaddat's income, whereas that sum was a loan made by Mrs Lee ([374]); and
(b)in it he had stated that his income for the financial year 1998‑1999 was $240,000, whereas it was nowhere near that amount ([375]).

The dishonest conduct in relation to Ark Securities

(a)Mr Mavaddat did not challenge the finding in the action that he had created, or caused to be created, false entries in the accounts of Ark Securities which he had given to Mrs Lee in September 2000, the accounts being false in the following respects:
(i)an amount of $1,616,515.50 was described as a loan by Mrs Lee and Mr Mavaddat to Ark Securities when in fact it was a loan by Mrs Lee only ([378]);
(ii)entries showing payments to Macquarie Porter Weston for shares of $50,000 on each of 20 January and 2 March 2000, and of $25,000 on 7 April 2000 were in fact payments made by Mr Mavaddat to himself for his personal use ([380]);
(iii)an amount of $5,000 shown as 'architectural expenses' was money paid to Mr Mavaddat ([381]);
(iv)payments of interest to Mrs Lee for the loan of $150,000 were falsely entered as 'drawings to Mrs Lee' on 28 October 1999, 13 January 2000 and 19 April 2000. The entries were intended to conceal from Mrs Lee that the payments of interest on the loan were in fact coming from the account of Ark Securities ([382]).

(b)Mr Mavaddat did not challenge the finding in the action that he made unauthorised use of the funds of Ark Securities by transferring the funds to himself and using those funds for his own purposes, as follows:
(i)he transferred the sum of $60,000 from Ark Securities' account to the Keywest account and subsequently used the money to pay for a trip to China in mid‑2000 and to defray his own personal or business expenses. Part of the money was to pay the airfare and other expenses of his secretary, with whom he was having a sexual relationship at the time ([505]);
(ii)he falsely entered interest payments to Mrs Lee as 'drawings to Mrs Lee' (as set out above) ([505]);
(iii)he caused Ark Securities to advance $150,000 which was used by Keywest for the acquisition and refurbishment of new business premises ([506] ‑ [509]);
(iv)he drew the sum of $4,000 from the account of Ark Securities without any entitlement to those funds ([512]);
(v)he drew an unquantified amount from the account of Ark Securities for the acquisition and development of Dizzy Lamb Park, the payments not being authorised and in breach of Mr Mavaddat's fiduciary duty to Mrs Lee ([522]).

Breaches of fiduciary duty, unconscionable conduct and dishonesty

Mr Mavaddat did not challenge the findings in the action that he had breached fiduciary duties he owed to Mrs Lee and engaged in unconscionable conduct towards Mrs Lee.
The relevant findings were that Mr Mavaddat caused Mrs Lee to accept liability for a loan, and to execute a mortgage to secure a loan, made by the Bank to Ark Securities for the purposes of the partnership between Courtza and Keywest. The result was that Mrs Lee became solely liable for the repayment of the loan and bore the whole risk in relation to it without having the benefit of Mr Mavaddat as a joint borrower giving security over his property in favour of the Bank. Mr Mavaddat thereby obtained the benefit of having the funds advanced to Ark Securities for the purposes of the partnership at no cost and with no liability to himself. He also obtained a further benefit in that he arranged for sufficient funds to be advanced to enable the commission owing to him by Absica to be paid ([465]).
Mr Mavaddat did not challenge the finding in the action that he had lied and equivocated in his testimony and demonstrated himself to be deceitful. The admitted findings were as follows:
[Mrs Lee's] credibility essentially falls to be assessed against her demeanour in the witness box, the consistency of her testimony with documentation, other objective evidence and her own previous statements out of court or in other proceedings and with the evidence of other witnesses which is accepted. [Mr Mavaddat's] credibility is to be assessed against the same criteria, but in his case there is a quite extraordinary amount of evidence of lies, deceit and dishonesty on his part, going even to matters relating to the proceedings. On several occasions he was compelled to answer questions on the basis that I would grant a certificate under s 11 of the Evidence Act 1906 (WA) preventing his answers from being used against him in criminal proceedings.
Earlier in these reasons I referred to [Mr Mavaddat's] practice of claiming on his business letterhead signature block to have a BSc degree from the United States of America. He expressly held himself out in his business correspondence over many years as having such a degree. When pressed in cross‑examination he admitted that was untrue. He had never held that degree. Even when pressed, however, [Mr Mavaddat] continued to equivocate and seek to evade the lie, by explaining that he had almost completed the degree. At first he said he only had one unit to complete. Later still he acknowledged he was 'short of a few units'. Then he said that the President of the university had told him that if he could produce evidence of having passed appropriate tertiary units elsewhere, he could be given the degree. That, of course, was no answer at all to his use of the qualification (which he eventually accepted was 'a serious lie'). All this tended only to exacerbate the impact of it on his honesty and credibility.
I have earlier referred to [Mr Mavaddat's] evidence‑in‑chief that he ultimately reported to Johnson Lee about developments in relation to the Subiaco property by facsimile dated 6 December 1999. The text of that fax is set out at [156] above. In cross‑examination [Mr Mavaddat] admitted much (if not most) of what was in it were lies. Even so, he continually attempted to evade, to obfuscate, to dissemble and to attribute blame to [Mrs Lee]. The following exchange (at t 950) was typical:
'Now, it was not true for you to tell Mr Lee that you had given security over your family home, was it?---There was a frenzied discussion regarding this property and Angela and her husband and particular parts of this are manipulated by her insofar as she was telling me that she had lost a lot of face in front of friends because she had advertised to everyone that we already own the property and she wanted me to write to him and present it in such a way that he will have to participate or help in this regard and when I phoned him many times during that period and following this he himself turned around and told me, "Is this the things that my wife has been telling you because we have had discussions? Tell her that I am not going to be funding or giving any more money from Hong Kong," and that she has to do whatever she has to do herself.
ROBERTS‑SMITH J: The question, Mr Mavaddat, was whether or not the statement in there which says "including my family home" was correct or not?---It's not correct.'
…
There are many other matters going to [Mr Mavaddat's] credibility, some of which it will be necessary to consider later. In light of them and the matters set out above, I conclude [Mr Mavaddat] is neither an honest nor a credible witness. I would not accept his testimony on any significant issue and without independent evidence I would not be prepared to accept the genuineness or truthfulness of any document generated by him or at his instigation. I further find that he has demonstrated himself to be deceitful and to manipulate others almost as a matter of course. One could have no confidence that what he told other people about anything, was true [341] ‑ [343], [383].

Findings of the Tribunal

The Tribunal found there were three bases upon which cause for disciplinary action existed against Mr Mavaddat. They were the first offence, the second offence, and the admitted conduct referred to above.
The Tribunal refused to accept a distinction sought to be drawn by Mr Mavaddat that the admitted conduct was independent of his practise as a real estate agent and related solely to his own business dealings with Mrs Lee. The Tribunal pointed out ([37]) that Mr Mavaddat met Mr and Mrs Lee through his work as a real estate agent and he had assisted them with real estate transactions. The facsimile of 6 December 1999 was concerned with a property purchase. While the misuse of funds did not relate to funds that Mr Mavaddat held as a real estate agent, they were funds which, in effect, he controlled on behalf of others. The Tribunal considered that dishonesty in relation to those funds was cause for concern about how he might act generally in relation to funds held on behalf of others, even though he had not misused funds as a real estate agent.
The Tribunal went on to say:
It was not in issue between the parties that honesty is an essential attribute of a person licensed as a real estate agent. The nature of the admitted dishonesty by Mr Mavaddat, comprising as it does a series of intentional lies, creation of false documents and misuse of funds, is so serious that, in the absence of some adequate explanation, it must be concluded that Mr Mavaddat is unfit, by reason of his dishonesty, to hold a real estate agent's licence [38].
The Tribunal did not accept ([39]) Mr Mavaddat's explanation that the admitted conduct was simply an aberration flowing from his relationship with Mrs Lee. Although at the trial of the action Roberts‑Smith J had not accepted that the relationship was a sexual one, before the Tribunal Mr Mavaddat called evidence from a psychiatrist, Dr Kay, in an endeavour to establish that his conduct was entirely a consequence of a sexual relationship with Mrs Lee and his turmoil resulting from concerns that it might be discovered. The Tribunal did not, however, accept Dr Kay's evidence that a significant causative factor in Mr Mavaddat's conduct was that his relationship with Mrs Lee had clouded his judgment, nor did it accept Dr Kay's conclusion that there should be no reason for concern in relation to Mr Mavaddat's dealings with the public in the future.
The Tribunal observed ([50]) that Dr Kay's evidence was based on what Mr Mavaddat told him, which was in material respects at odds with Mr Mavaddat's evidence at the trial and findings made in the action. Mr Mavaddat's explanation to Dr Kay of both his relationship with his secretary and with Mrs Lee was inconsistent with the evidence Mr Mavaddat had given at the trial. Mr Mavaddat had also told Dr Kay that at the relevant time his finances were 'in pretty good shape' whereas he was in fact in some financial difficulty. In relation to the money he had taken from Ark Securities, he had apparently told Dr Kay that there were 'some inconsistencies in accounting records'. The Tribunal noted that Mr Mavaddat did not tell Dr Kay that he had falsely claimed to have a Bachelor of Science degree in correspondence with financial institutions and there were apparent inconsistencies between the reasons he gave in the action for using the qualification and the reasons he gave Dr Kay. Nor did Mr Mavaddat tell Dr Kay that he had described the misrepresentations in the application to Bunnings as 'industry standard'. The principal justification Mr Mavaddat offered to Dr Kay for the adverse findings against him at the trial was that he had had ineffective legal representation.
The Tribunal rejected ([49] ‑ [50]) Mr Mavaddat's explanation for his conduct. It did so for three reasons. First, there were material inconsistencies between the account he gave to Dr Kay and the evidence and findings in the action. Secondly, the explanation that the adverse findings in the action were due to ineffective legal representation was contrary to his admission of the allegations of dishonesty before the Tribunal. Thirdly, Mr Mavaddat did not give evidence before the Tribunal but sought to advance the explanation by means of an inadequate account of events given to Dr Kay.
The Tribunal accepted ([51]) that the character witnesses who gave evidence on behalf of Mr Mavaddat considered that his conduct was out of character, based on their own experiences of him. But the Tribunal considered ([55]) that in his discussions with the character witnesses Mr Mavaddat had generally sought to downplay the findings against him, as he had with Dr Kay. In any event, the Tribunal concluded ([56]) that the individual experiences of the character witnesses did not mean that there was no danger of Mr Mavaddat displaying the same level of dishonesty if appropriate circumstances presented themselves in the future.
The Tribunal considered ([59]) that Mr Mavaddat's admitted conduct and the findings made by Roberts‑Smith J demonstrated that he was not possessed 'of sufficient moral integrity and rectitude of character to permit him to be accredited to the public'. It considered that that conclusion was fortified by Mr Mavaddat's apparent reluctance to accept the seriousness of his admitted wrongdoing. It concluded ([62]) that there was nothing before it to establish that Mr Mavaddat was 'equipped with understanding and other strategies in respect of his behaviour'.
The Tribunal found ([72]) that in respect of the admitted conduct Mr Mavaddat's licence and triennial certificate should be cancelled and he should be disqualified permanently from holding a licence or triennial certificate. In reaching that conclusion, the Tribunal distinguished ([63]) the decision of the Full Court in Grljusich v Andrews [2003] WASCA 206, where the court had reduced a penalty of permanent disqualification to disqualification for a period of five years, on the facts. (I should say that no point is taken by Mr Mavaddat that separate penalties should have been imposed in respect the various elements making up the admitted conduct.)
In respect of the first offence, the Tribunal considered ([65]) that ordinarily a suspension of six months would be appropriate, but in light of the life suspension, no separate suspension was called for. For the second offence, the Tribunal imposed a fine of $1,000. Mr Mavaddat was ordered to pay the costs of the proceedings before the Tribunal.

The grounds of appeal

Mr Mavaddat relied upon the following grounds of appeal:
1.The SAT made an error of mixed fact and law in deciding to cancel the licence of the Appellant by failing to take into account (or adequately take into account) when making that decision:
(a)the purpose for which the order was to be made,
(b)whether any alternative order would achieve the purpose;
(c)the distinction between allegations of personal conduct (allegations 3, 4, and 5) and professional misconduct (allegations 1 and 2);
(d)the whole situation that constituted the relationship between the Appellant and Mrs Lee at the time of the events set out in the Agreed Allegations;
(e)the whole situation that existed at the date of the SAT decision including the unblemished record of the Appellant in his professional practice and the absence of any allegation of impropriety in dealings with 'the public'.
2.The SAT made an error of mixed fact and law in deciding to disqualify the Appellant permanently because:
(a)it erred in law in making this decision as a response to its judgement of the conduct of the Appellant and in the nature of a punishment and not for the purpose for which the power was given;
(b)it failed to take into account a relevant matter being the likely effect of the order on the Appellant;
(c)it failed to take into account a relevant matter being whether permanent disqualification was the only means by which the object to be achieved by the order could be achieved;
(d)it erred in distinguishing Grljusich v Andrews [2003] WASCA 206 and in particular in failing to consider whether the Appellant was incapable of re‑establishing himself as a fit and proper person for the purposes of the REBA Act;
(e)the SAT failed to take into account its other decisions and in particular Real Estate and Business Agents Supervisory Board v Kamil [2008] WASAT 189.
3.The SAT made an error of mixed fact and law in that its order of permanent disqualification is:
(a)manifestly excessive;
[(b)]in the alternative a decision that is so unreasonable no reasonable person could have made the decision.

The submissions on behalf of Mr Mavaddat

In respect of ground 1, it was submitted that although the Tribunal recognised that the object of the proceedings was the protection of the public, it did not consider the alternatives to cancellation of Mr Mavaddat's licence and failed to have regard to the whole of the relevant circumstances.
The Tribunal's concern that there was a danger Mr Mavaddat might act dishonestly in the future if 'appropriate circumstances presented themselves' was speculation based on the possible occurrence of unspecified circumstances. The finding that there was a danger of future dishonesty was a serious finding that was required to, but did not, meet the Briginshaw test [Briginshaw v Briginshaw (1938) 60 CLR 336, 361].
It was submitted that the finding that Mr Mavaddat lacked insight into his conduct was not a basis for finding that, contrary to his conduct prior to and since the admitted conduct, Mr Mavaddat would act dishonestly in the future. The Tribunal also failed to give adequate consideration to the context of the admitted conduct, which was not conduct as a real estate agent but was exclusively in relation to a commercial relationship with Mrs Lee which paralleled an emotional relationship, and was directed to achieving profit for himself and Mrs Lee, not solely to advance his own interests. In addition, the distinction between private and professional conduct was not sufficiently recognised. Mr Mavaddat had not misused funds as a real estate agent. The funds he had misused related to Ark Securities, which he partly owned.

The Tribunal also focused on the events between 1998 and 2001 and did not look at the whole situation, including the unblemished conduct of Mr Mavaddat as a real estate agent both before and after that period.
On the second ground of appeal, in addition to the above submissions it was submitted that the reasons of the Tribunal showed that it was moved solely by the conduct of Mr Mavaddat and not protection of the public. It did not consider any alternative to permanent disqualification, such as a condition of his licence that Mr Mavaddat be counselled or supervised.
Counsel argued that the Tribunal erred in distinguishing Grljusich. It should have found that the decision in Grljusich requires that disqualification for life is reserved for persons who are found to be incapable of re‑establishing themselves at any time in the future. The Tribunal did not make such a finding in respect of Mr Mavaddat. And any such finding would have been against the weight of the evidence of Mr Mavaddat's conduct over some 30 years as a real estate agent. The penalty was also excessive in the light of other decisions of the Tribunal, showing that the Tribunal's discretion miscarried. Further, the Tribunal failed to consider the effect on Mr Mavaddat of removing his livelihood at a late stage of life. (It appears that Mr Mavaddat is in his early fifties.)
On the third ground of appeal, it was submitted that the failure of the Tribunal properly to exercise the discretion may be inferred from the result, which was plainly unjust. Orders made under s 103(1) of the Act are not made to punish but to protect the public and maintain professional standards, and must be directed to that end. In this case, the protection of the public would be achieved by a condition of Mr Mavaddat's licence that he practise under supervision. Disqualification for life was not appropriate. It should be reserved for the most extreme cases which have aggravating factors and involve conduct at the core of professional activity. That was not this case. In the circumstances, the penalty was manifestly excessive.
It was submitted that an order suspending Mr Mavaddat for a limited period of time, having regard to his age and the need to establish some other livelihood, would be sufficient to achieve the objectives of the Act. Suspension for more than two years would be crushing. An order that, following the suspension, Mr Mavaddat only be licensed to practise under supervision would protect the public from any future lapses.

The submissions on behalf of the Board

On ground 1, it was submitted that it was clear on a reading of its reasons that the Tribunal was conscious of the alternative penalties open to it. The Tribunal found that disqualification was the only appropriate penalty because it considered Mr Mavaddat was 'not possessed of sufficient moral integrity and rectitude of character to permit him to be accredited to the public'.
The Tribunal was entitled to take into account the admitted conduct although it was not in the course of Mr Mavaddat's practice as a real estate agent because that conduct demonstrated qualities that went to whether he was a fit and proper person to practice as a real estate agent. The overwhelming inference from the material before the Tribunal was that the nature of Mr Mavaddat's character was such that, when need arose and opportunity presented itself, he was willing to deceive to derive personal gain or avoid personal loss.
The Tribunal had considered in detail the explanation offered by Mr Mavaddat (by his counsel) for his misconduct and rejected it, for reasons that it gave. There was no evidence that Mr Mavaddat's conduct had changed since the events of 1999 ‑ 2004. The information he gave to Dr Kay in 2008 was less than candid.
On ground 2, it was submitted that the reasons of the Tribunal demonstrated that the protection of the public was its overriding consideration in its determination as to penalty. The Tribunal emphasised that the protection of the public required that licensed agents were possessed of honesty and integrity. The Tribunal did not fail to consider the effect of the penalty on Mr Mavaddat. It referred to the 'serious consequences' it would have for him, albeit there was no evidence put before the Tribunal as to Mr Mavaddat's personal financial circumstances and there was evidence that Mr Mavaddat was the owner of valuable real estate which he was involved in developing on his own behalf.
The Tribunal expressly addressed whether disqualification for a specific period rather than permanent disqualification was the appropriate penalty. The Tribunal considered the evidence of Dr Kay and the character witnesses. It found that Mr Mavaddat could not 'be held out to the public as possessed of the honesty and moral integrity required of an accredited real estate agent'. In the absence of any evidence or argument to the contrary, it was reasonable for the Tribunal to infer that those aspects of Mr Mavaddat's character were likely to persist for decades, if not his lifetime. There was nothing to suggest that Mr Mavaddat could safely be accredited at some time in the future.
On ground 3, it was submitted that the penalty was not excessive. The Tribunal correctly distinguished Grljusich, in which the circumstances were quite different. The Tribunal's finding that Mr Mavaddat had no appreciation of the seriousness of his conduct and did not accept responsibility for it, was not challenged. Given the period over which the admitted conduct had occurred and Tribunal's findings in the light of it, it cannot be said that the penalty was excessive. In view of the nature of the conduct, there was no condition that could be imposed on Mr Mavaddat's licence which would adequately protect the public.

The disposition of the appeal

Ground 1

By this ground Mr Mavaddat contends, in substance, that the Tribunal erred in finding that his licence should be cancelled. He relies upon what he says were a number of errors made by the Tribunal in making that finding.
In my view, the complaint that the Tribunal failed to take into account, or adequately take into account, the purpose of the imposition of disciplinary penalties and failed to consider the alternatives open to it is without substance. It is evident from its reasons for judgment that the Tribunal had in mind both the purpose of disciplinary proceedings and the alternative penalties that were open to it. It expressly noted in its reasons ([14]) that such proceedings were not punitive in nature, but that their object was the protection of the public and the maintenance of proper professional standards. The Tribunal also specifically referred in its reasons ([22]) to the submission made on behalf of Mr Mavaddat that neither disqualification nor suspension was appropriate and his contention that the public was not at risk because his prospects of re-offending were minimal.
The Tribunal then specifically addressed the question of whether disqualification was the appropriate penalty. Having reviewed the evidence, the Tribunal found ([38]) that the nature of the admitted dishonesty was such that, in the absence of an adequate explanation, it must conclude that Mr Mavaddat was unfit to hold a licence. The Tribunal went on to find that there was no adequate explanation. It considered ([56]) there was a danger that Mr Mavaddat would repeat the same level of dishonesty if appropriate circumstances presented themselves. It concluded ([59]) that Mr Mavaddat did not possess the moral integrity and rectitude of character to permit him to be accredited to the public; that is, that he was not a fit and proper person to hold a licence. In light of that conclusion, it found ([60]) that his licence should be cancelled. In the circumstances it was unnecessary for the Tribunal expressly to canvass the alternatives to cancellation. It is evident that the Tribunal considered the alternatives but concluded that they were not appropriate in the circumstances.
I also consider there is no substance in the contention that the Tribunal failed adequately to distinguish between professional misconduct and the personal conduct of Mr Mavaddat. While it must be recognised that there is a real distinction between professional misconduct and personal misconduct on the part of a professional, where the question is whether a person is a fit and proper person to hold a licence to carry on an occupation of the present kind, it is plainly not the case that the only relevant conduct is conduct which occurs in the course of carrying on the occupation. Where the line is to be drawn between conduct that is relevant and conduct that is not will depend upon the circumstances of the particular case. It will not always be clear-cut.
The High Court pointed out in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253, in relation to a solicitor:
The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise [20].
In determining whether a person is a fit and proper person to hold a licence, conduct will be relevant if, although it did not occur in the ordinary course of carrying on the occupation, it is sufficiently closely connected to the occupation or it manifests the presence or absence of qualities which are incompatible with, or essential for, the carrying on the occupation: see Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 290; Hoile v Medical Board of South Australia (1960) 104 CLR 157; Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1, 9; Ex parte Tziniolis; Re Medical Practitioners Act (1967) 84 WN (Pt 2) (NSW) 275, 277; New South Wales Bar Association v Cummins [2001] NSWCA 284 [56].
As the Tribunal pointed out ([38]), honesty is an essential attribute of a person licensed as a real estate agent. The admitted conduct of Mr Mavaddat went directly to that attribute. The admitted conduct was not in any respect of a purely private or personal nature but concerned commercial dealings involving not only Mrs Lee but the Bank and Bunnings, and extended to the giving of false evidence on oath. It demonstrated an absence of the honesty and integrity required of a person who seeks to be accredited as a fit and proper person to practise as a real estate agent.
I do not accept the submission that the Tribunal failed adequately to take into account the relationship with Mrs Lee. Mr Mavaddat contended before the Tribunal that his conduct was an aberration resulting from his relationship with Mrs Lee. However, as the Tribunal pointed out ([40]), no evidence to that effect was given by Mr Mavaddat, who chose not to give evidence before the Tribunal. The contention was sought to be advanced through the evidence of Dr Kay, evidence that was based on a version of events that in a number of material respects was incomplete, or inconsistent with Mr Mavaddat's evidence and the findings in the action. The Tribunal also had regard to the evidence of the character witnesses who gave evidence that, based on their dealings with Mr Mavaddat, the admitted conduct was out of character. In the circumstances, the Tribunal was entitled to give limited weight to that evidence. Ultimately the Tribunal expressly rejected ([39]) Mr Mavaddat's explanation for his conduct. It was entitled to do so.
The contention that the Tribunal also failed adequately to take into account what counsel for Mr Mavaddat described as 'the whole situation' as at the time of the Tribunal hearing must be rejected. It is undoubtedly the case that in determining whether a person is a fit and proper person to hold a licence it is necessary to consider all of the relevant circumstances. To the extent that Mr Mavaddat wished the Tribunal to take into account circumstances that were not otherwise before it, it was incumbent upon him to put the necessary evidence before the Tribunal.
In considering the relevant circumstances, it is significant that the dishonest conduct in which Mr Mavaddat engaged did not occur in respect of a single transaction or over a short and isolated period of time. Thus:
•his false claim to hold a Bachelor of Science degree had occurred over a number of years and had preceded his contact with Mrs Lee;
•the false statements to the Bank occurred in October 1999 and the false statements to Mr Lee in December 1999;
•the accounts of Ark Securities containing false entries were given to Mrs Lee in September 2000 and concerned dishonest transactions which had taken place at various times in late 1999 and the first part of 2000;
•the false statements to Bunnings occurred in October 2000;
•the dishonest affidavit in the Supreme Court proceedings was sworn on 17 August 2001; and
•his false testimony in the Supreme Court action was given in 2004.
Apart from the false claim to the university degree, which had continued much longer, Mr Mavaddat's dishonest conduct had therefore continued over a period of some five years. While some of it had a connection with his business dealings with Mrs Lee, some did not. Thus, for example, of the sum of $60,000 which Mr Mavaddat took from Ark Securities, part was used to pay for a trip to China for himself and his secretary, with whom he was having a sexual relationship at the time, and the balance was used to meet his own personal expenses. The other money taken from Ark Securities appears also to have been used for Mr Mavaddat's personal expenses. His business dealings with Mrs Lee clearly provided the opportunity, not the explanation, for that dishonesty.
The Tribunal properly had regard to the character references provided for Mr Mavaddat. It, correctly in my respectful view, did not regard those character references as providing any reason to believe that Mr Mavaddat would not display the same level of dishonesty again if appropriate circumstances arose. The character witnesses could speak only of their personal experiences in dealing with Mr Mavaddat and to the extent they commented in light of the findings at the trial they were limited by the less than candid explanation for those findings they had received from Mr Mavaddat. Similarly, the fact that Mr Mavaddat had an unblemished record in his dealings with members of the public in his practice as a real estate agent, a matter to which the Tribunal also had regard ([22]), was a factor of limited weight in light of the extent, nature and duration of the admitted conduct.
It is not correct to say, as was submitted on behalf of Mr Mavaddat, that in making its decision the Tribunal had focused on the period between 1998 and 2001. I have already mentioned that the Tribunal had regard to the character evidence and Mr Mavaddat's unblemished record in dealing with the public as a real estate agent. On the other hand, outside the period referred to, Mr Mavaddat did not challenge the finding by Roberts‑Smith J that he lied and equivocated in his evidence at the trial in 2004 and demonstrated himself to be deceitful. And at the trial in 2004, Mr Mavaddat had dismissed false statements he had made to Bunnings in order to obtain a credit facility as 'industry standard', a response which indicates a remarkable absence of any appreciation of the dishonesty involved and its seriousness, and a complete lack of remorse.
The Tribunal also pointed out that, in 2008, Mr Mavaddat had been less than candid with Dr Kay and the character witnesses as to the circumstances giving rise to the adverse findings against him at the trial. Indeed, the incomplete and misleading version of events Mr Mavaddat gave to Dr Kay is consistent with the same sort of evasion, obfuscation, dissembling and shifting of blame that Roberts‑Smith J had found characterised his evidence at the trial in 2004. The explanation that Mr Mavaddat gave to Dr Kay that the adverse findings against him at the trial were due to inadequate legal representation also stands in stark contrast to the (belated) admission before the Tribunal of the allegations of dishonesty.
On the material before it, it was plainly open to the Tribunal to find that Mr Mavaddat was not a fit and proper person to hold a real estate agent's licence. In the circumstances, it is difficult to see how it could have arrived at any other conclusion.
I do not accept that the Tribunal erred in finding that Mr Mavaddat's licence should be cancelled. I would dismiss the first ground of appeal.

Ground 2

By this ground Mr Mavaddat contends, in effect, that the Tribunal erred in concluding that he should be permanently disqualified from holding a licence. I do not consider that this ground has been made out.
I have already noted that the Tribunal was plainly conscious that the object of disciplinary penalties is not punishment, but the protection of the public and the maintenance of proper professional standards ([14]). There is nothing to suggest that in deciding that Mr Mavaddat should be permanently disqualified the Tribunal lost sight of that object.
As mentioned above, the Tribunal found ([59]) that Mr Mavaddat's licence should be cancelled because, in light of the extent, nature and duration of the dishonest conduct, and Mr Mavaddat's apparent reluctance to accept the seriousness of it, Mr Mavaddat was not possessed 'of sufficient moral integrity and rectitude of character to permit him to be accredited to the public'.
In turning to the question of whether Mr Mavaddat should be disqualified permanently or for a specific period, the Tribunal referred ([61]) to the following passage from the judgment of Walsh JA in Tziniolis, which had been cited with approval in Grljusich:
One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man (461).
The Tribunal concluded ([62]) that the public would be at risk if Mr Mavaddat continued to practise as a real estate agent. The Tribunal was not satisfied ([62]) that Mr Mavaddat understood the impropriety of his conduct and it noted the apparent reluctance of Mr Mavaddat to accept the seriousness of his wrongdoing and of the findings against him. It observed ([63]) that the admitted conduct involved a series of dishonest acts over a period of several years and those acts were relevant to his fitness to hold a licence. The Tribunal accepted ([66]) that the cancellation of his licence would have 'very serious financial and personal consequences' for Mr Mavaddat. But the Tribunal went on to find that Mr Mavaddat's licence should nevertheless be cancelled and he should be disqualified permanently from holding a licence or triennial certificate.
The effect of the Tribunal's order is to deprive Mr Mavaddat of the opportunity of persuading the Board at some time in the future that he has seen the error of the ways and is once again a fit and proper person to hold a licence. As the Tribunal plainly recognised, it is a very substantial step to deny a person such an opportunity. In this case, however, I am not persuaded that the Tribunal erred in finding that Mr Mavaddat's disqualification should be permanent.

It was submitted on behalf of Mr Mavaddat that Grljusich is authority for the proposition that disqualification for life under the Act is applicable only where it is found that a person is incapable of re‑establishing themselves at any time in the future. That view appeared to be shared by counsel for the respondent. With respect, I do not think the case is authority for that proposition.
In Grljusich, the appellant, a licensed real estate representative, had been found to have misappropriated commissions due to his employer on the sale of three different properties in the first part of 1997. The commissions totalled $4,750 in all. He had also sought to persuade some of those involved in each of the transactions to assist in concealing his misappropriations. The appellant's employer, however, made no complaint about the appellant's conduct. The Board found that the appellant's evidence to it concerning the transactions was untruthful. It found that the appellant was incapable of attaining the personal standard of integrity which was essential for a licensed sales representative. It ordered that his certificate of registration as a sales representative be cancelled and that he be permanently disqualified from holding a certificate.
On appeal to the Full Court, the appellant contended, among other things, that the penalty was manifestly excessive and well outside the range of a reasonable discretion. The court found that the Board had properly ordered the cancellation of the appellant's certificate, but considered that the Board had erred in concluding that he was incapable of re‑establishing himself at any time in the future. The misconduct did not involve such a breach of public trust as to indicate that the appellant was incapable of re‑establishing himself over a period of time. The many professional and character references put before the Board strongly supported the view that he was capable of doing so. The court ordered that he be disqualified for a period of five years.
I do not, however, understand the decision of the Full Court to turn on any principle that permanent disqualification is only appropriate where it is found that a person is incapable of re‑establishing himself or herself at any time in the future. In that case, the Board had disqualified the appellant permanently because it had found that the appellant was 'incapable of attaining a personal standard of integrity which is essential' for a licensed sales representative. The Full Court concluded that that finding was not reasonably open in the circumstances of the case. The Full Court did not consider the more general issue of the circumstances in which permanent disqualification might properly be ordered and the question of the maintenance of proper professional standards was not considered. I do not consider the case is authority for the principle for which counsel for Mr Mavaddat contended.
Nor do I consider that there is any principle of that sort. No such limitation is evident from the terms of the Act. Section 103(1)(c) of the Act provides that if it is satisfied that proper cause exists for disciplinary action the Tribunal may, among other things, disqualify an agent 'either temporarily or permanently'. I can find nothing in the Act which would warrant reading that provision as subject to a limitation that permanent disqualification is only to be imposed where it is found that a person is incapable of re‑establishing himself or herself as a fit and proper person to hold a licence.
In that connection, it is important to bear in mind the purpose of disciplinary proceedings. They are the protection of the public and the maintenance of proper professional standards: Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201 ‑ 202; Re A Barrister and Solicitor [1979] 40 FLR 1, 24 ‑ 25; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 375. While the question of whether or not an agent is capable of re‑establishing himself or herself in the future is a relevant matter for consideration on the question of penalty, it is not the only matter. Where the Tribunal considers that a penalty should be imposed under s 103(1)(c) of the Act it must consider the whole of the relevant circumstances to determine what penalty will most properly give effect to the objects of the Act.
Counsel for Mr Mavaddat further submitted that in imposing the penalty of permanent disqualification the Tribunal had failed to take into account its own previous decisions; that is, as I understand it, that the order in this case fell outside the range of orders usually made by the Tribunal in similar cases. Counsel referred, in particular, to the decision of the Tribunal (differently constituted) in Real Estate and Business Agents Supervisory Board and Kamil [2008] WASAT 189.
This court is not, of course, bound to accept any such range if the other cases establishing the range are based upon an incorrect approach, but if the range is properly based then the fact that an order inexplicably falls outside it will usually reflect error. However, the cases to which counsel referred did not establish any relevant range and were of no real assistance in the present case.
In Kamil, the respondent was a licensed real estate representative. He had worked as such for 16 years. The relevant events occurred between December 2005 and June 2006. The respondent made an offer to purchase a property listed with his employer. The offer was made in the name of another person, referred to in the reasons as Ms L, without Ms L's knowledge or consent. The respondent was apparently in a personal relationship with Ms L at the time. The respondent then forged a number of documents in order to enable the sale to be completed and obtained a first home owner's grant of $7,000 (which he applied for in the name of Ms L) and the lower rate of stamp duty applicable to a first home owner. At the time the Tribunal dealt with the matter the respondent had pleaded guilty to a number of criminal charges arising out of these activities and was awaiting a sentencing hearing in the District Court. There was no suggestion that the vendor of the property or Ms L had suffered any financial detriment as a result of the respondent's conduct.
The Tribunal found that the respondent's misconduct did not suggest that the respondent was totally incapable of re‑establishing himself over a period of time, given his age (which was not stated) and apparent level of experience in the industry. The Tribunal cancelled the respondent's certificate of registration as a sales representative and disqualified him from holding a certificate for a period of 10 years.
The circumstances of that case were quite different to the present case and I do not think the case assists Mr Mavaddat.
Counsel for Mr Mavaddat also contended that the Tribunal had wrongly distinguished Grljusich. I do not agree. That case was also quite different to the present case. There the dishonesty involved three transactions, occurred over a comparatively short period of time, and involved a relatively small sum of money. A period of five years disqualification was imposed.
What is distinctive about the present case is the length of time over which the dishonesty occurred, the various circumstances in which it occurred, and the very serious nature of the dishonesty involved, together with Mr Mavaddat's continuing inability or refusal to accept the seriousness of his conduct. Mr Mavaddat's dishonesty was not isolated or passing behaviour and it could not simply be attributed to his dealings with Mrs Lee. It reflected, over a lengthy period, an attitude and mode of dealing which is antithetical to the requirements of an accredited real estate agent, and a lack of the honesty and moral integrity which is essential if the reputation and proper professional standards of licensed agents are to be maintained.
In addition, there was nothing before the Tribunal to found a belief that Mr Mavaddat might in the future re-establish himself as a fit and proper person within the meaning of the Act, and a good deal to suggest to the contrary. I have previously referred to Mr Mavaddat's apparent lack of insight into the serious nature of his conduct and his apparent lack of remorse. He had not seen the error of his ways between 2001 and the trial in the Supreme Court in 2004, at which he lied on oath and was prepared to dismiss as 'industry standard' false representations that he had made to Bunnings in order to obtain a credit facility.
Nor does it seem that he had seen the error of his ways by 2008 when he gave Dr Kay a misleading account of the circumstances giving rise to the adverse findings against him in the Supreme Court action and sought to explain them as due to inadequate legal representation, and was less than candid with the character witnesses from whom he sought support.
In my view, it was open to the Tribunal to conclude that the protection of the public and the maintenance of proper professional standards required that Mr Mavaddat's disqualification should be permanent. I would dismiss this ground of appeal.

Ground 3

In light of what I have already said, this ground of appeal can be disposed of quite shortly.
It relies upon a contention that the penalty was manifestly excessive, or upon unreasonableness in the Wednesbury sense [Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) 45 LGR 635], rather than any particular error by the Tribunal in the exercise of its discretion in imposing the penalty of permanent disqualification.
In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short [6].
For the reasons I have given above, I do not consider that the penalty of permanent disqualification was manifestly excessive. Nor do I consider that it was unreasonable in the Wednesbury sense. The object of the disciplinary provisions of the Act is the protection of the public and the maintenance of proper professional standards. As I have said, it was open to the Tribunal to conclude that that object required that Mr Mavaddat's disqualification be permanent. This ground of appeal must fail.

Conclusion

In my view, Mr Mavaddat has failed to show any error on the part of the Tribunal in ordering that he be permanently disqualified from holding a real estate agent's licence or a triennial certificate. I would refuse leave to appeal.