SETTLEMENT AGENTS SUPERVISORY BOARD and POULTON

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SETTLEMENT AGENTS ACT 1981 (WA)

CITATION: SETTLEMENT AGENTS SUPERVISORY BOARD and POULTON [2010] WASAT 65

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MR G POTTER (SENIOR SESSIONAL MEMBER)
MS C WINSOR (SESSIONAL MEMBER)

HEARD: 21 DECEMBER 2009

DELIVERED : 4 MAY 2010

FILE NO/S: VR 117 of 2009

BETWEEN: SETTLEMENT AGENTS SUPERVISORY BOARD
Applicant
AND
GORDON ANDREW POULTON
Respondent

Catchwords:

Settlement agents - Disciplinary proceedings - Attributes essential for a settlement agent - Convictions for bribing a public officer - Unfit to hold a licence

Legislation:

Business Names Act 1962 (WA), s 5A
Criminal Code Act 1913 (WA), s 5A
Land Values Licensing Act 1978 (WA), s 28(2)(d)
Settlement Agents Act 1981 (WA), s 3, s 27(1), s 27(2), s 27(1)(b), s 30(5), s 83, s 84(2), s 84(2)(d), cl 1, cl 1(1)(a), c 2, Sch 2
State Administration Tribunal Act 2004 (WA), s 84(2)

Result:

Cause exists for disciplinary action against the respondent

Category: B

Representation:

Counsel:

Applicant: Mr P Bevilaqua
Respondent: Ms C Thompson

Solicitors:

Applicant: Self-represented
Respondent: Nielsen and Co

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

Ex parte Tziniolis, Re Medical Practitioners Act [1967] 1 NSWR 357
Farmer v The Honourable Minister for Consumer & Employment Protection for the State of Western Australia [2003] WADC 25
Jemielita v Medical Board of Western Australia (unreported), WASC Library No. 920584, 13 November 1992
Land Valuers Licensing Board and Nevermann [2010] WASAT 38
Mavaddat and Real Estate and Business Agents Supervisory Board [2009] WASCA 179
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Sobey v Commercial & Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Settlement Agents Supervisory Board brought an application in the Tribunal pursuant to s 83 of the Settlement Agents Act 1981 (WA) alleging that there was proper cause for disciplinary against Mr Gordon Andrew Poulton. On 12 May 2009 Mr Poulton was convicted of two offences of bribing a public officer contrary to s 82 of the Criminal Code (WA), in relation to gifts made by Mr Poulton to two officers of Landgate in 2007. The Board contended that in light of these offences Mr Poulton was unfit to hold a licence as a settlement agent, and that there was proper cause for disciplinary action against Mr Poulton under s 84(2)(1) of the Act.
The Tribunal found that honesty and respect for the law are essential personal attributes for carrying out the functions of a settlement agent. It found that the commission of the bribery offences indicated that Mr Poulton did not possess these attributes. In coming to that conclusion, the Tribunal took into account the dishonest nature of the offences, the fact that the offences were committed in the course of Mr Poulton’s work as a settlement agent and the seriousness of the offences. The Tribunal was not persuaded that there were factors indicating that Mr Poulton was presently fit to hold a licence in spite of his convictions for the offences. The Tribunal was satisfied on balance that Mr Poulton was unfit to hold a licence as a settlement agent under the Act. The Tribunal was therefore satisfied that there was proper cause for disciplinary action against Mr Poulton under s 84(2) of the Act.
The Tribunal indicated that it would hear from the parties in respect of any action which should be taken pursuant to s 84(1) of the Act in view of its conclusion that proper cause exists for disciplinary action against Mr Poulton.

Background

Mr Poulton has held a licence as a real estate settlement agent (settlement agent) and a triennial certificate under the Settlement Agents Act 1981 (WA) (SA Act) since the SA Act was enacted in 1981. From 1985 until recently, he owned and operated a settlement agency under the business name Paramount Settlements.
On 12 May 2009 Mr Poulton was convicted of two offences of bribing a public officer contrary to s 82 of the Criminal Code (WA) (the offences). The offences pertained to gifts of gift vouchers to the value of $500 each which were made to two officers of Landgate. The circumstances of the offences are set out in further detail below. Mr Poulton was sentenced to a global fine of $10,000 in respect of the offences.
The commission of the offences was discovered in the course of an investigation by the Corruption and Crime Commission (CCC) into alleged misconduct by employees of Landgate. That investigation culminated in a report by the CCC dated 18 June 2009 entitled Report on the Investigation of Alleged Misconduct by Employees of Landgate as a Result of Associations with External Clients Involved in the Property Development Industry (CCC Report).
In light of Mr Poulton's convictions for the offences, the Settlement Agents Supervisory Board has alleged to the Tribunal, pursuant to s 83 of the SA Act, that there exists proper cause for disciplinary action to be taken against Mr Poulton. The Board contends that in light of his convictions, Mr Poulton is now unfit to hold a licence as a settlement agent. Mr Poulton resists that application. He contends that when the convictions are considered in the context of the circumstances in which they were committed, and other relevant factors, the Board's contention that he is unfit to hold a licence as a settlement agent, is not made out.
Mr Poulton's most recent triennial certificate under the SA Act was due to expire on 31 October 2009. By letter dated 30 October 2009, Mr Poulton's solicitors advised the Board that he had decided not to renew his triennial certificate and that certificate and his licence as a settlement agent were surrendered to the Board. In addition, Mr Poulton undertook to the Board that he would not seek to 'hold over' his settlement agent's licence and undertook not to apply for a settlement agent's licence or a triennial certificate in the future. Despite the surrender of his licence and triennial certificate, however, the SA Act continues to apply to Mr Poulton for the purpose of enabling him to be dealt with for matters arising before the surrender of the licence and certificate, as if they had not been surrendered: s 30(5) of the SA Act.

The nature of the proceedings and the evidence before the Tribunal

The Board's application comes within the Tribunal's original jurisdiction. The Tribunal is required to deal with the application in accordance with the State Administrative Tribunal Act 2004 (WA) (SAT Act) and with the SA Act. Our role is to determine whether we are satisfied that proper cause exists for disciplinary action against Mr Poulton, pursuant to s 84(2) of the SA Act.
The parties filed statements of issues, facts and contentions. Attached to the Board's application was a copy of the transcript of the sentencing hearing in respect of the offences in the District Court on 12 May 2009. In addition, the Board's application attached a copy of the CCC Report. The Board relied solely on these documents and did not call any witnesses.
Mr Poulton filed two books of documents which he submitted were relevant to these proceedings. The first bundle of documents pertained to proceedings in the District Court of Western Australia in August 2009 pursuant to s 5A of the Business Names Act1962 (WA) in which Mr Poulton sought, and was granted, leave to carry on business under the business name Paramount Settlements, notwithstanding his convictions for the offences (the business name proceedings). The second book of documents primarily comprised copies of the gift vouchers which were the gifts the subject of the offences, together with copies of 'with compliments' slips which accompanied the gift vouchers and of the envelopes in which the gift vouchers were passed to Landgate employees. These documents had been exhibits in the investigation by the CCC. Mr Poulton did not call any witnesses.

The issues

These reasons for decision address the following issues:
1.The meaning of the word 'unfit' in s 84(2)(d) of the SA Act.
2.The attributes, abilities and knowledge required to be a settlement agent under the SA Act.
3.The facts of, and circumstances surrounding, the offences.
4.The relevance of Mr Poulton's convictions for the offences to the question of his fitness to hold a licence under s 84(2)(d) of the SA Act.
5.Whether Mr Poulton is fit to hold a licence as a settlement agent in spite of his convictions for the offences.

The meaning of the word 'unfit' in s 84(2)(d) of the SA Act

Under s 84 of the SA Act, the Tribunal is permitted to take disciplinary action against a settlement agent if proper cause exists for disciplinary action: s 84(1). The bases upon which proper cause for disciplinary action exists are set out in s 84(2) of the SA Act which provides:
There shall be proper cause for disciplinary action if —
(a)the State Administrative Tribunal is satisfied that the settlement agent improperly obtained a licence or triennial certificate;
(b)the settlement agent, or any person acting with the authority or upon the instructions of the settlement agent has, in the course of any dealings with a party, or a prospective party, to a transaction, been guilty of conduct that constitutes a breach of any law other than this Act and that prejudices or may prejudice any rights or interests of the party, or prospective party, to the transaction;
(c)the settlement agent is acting or has acted in breach of —
(i)a special condition of his licence or triennial certificate;
(ii)the requirements of this Act; or
(iii)the settlement agents' code of conduct;
or
(d)any other cause exists that, in the opinion of the State Administrative Tribunal renders the settlement agent unfit to hold a licence.
As we have already noted, the Board in this case relies on Mr Poulton's convictions as a cause which exists that 'renders the settlement agent unfit to hold a licence'. In order to determine whether a cause exists for disciplinary action against Mr Poulton it is necessary to determine the meaning of the words 'unfit to hold a licence'. The meaning of those words in s 84(2)(d) of the SA Act has not previously been the subject of judicial consideration in Western Australia.
Initially, counsel for the Board sought to argue that whether a settlement agent was unfit under s 84(2)(d) of the SA Act should be determined having regard to the criteria for the grant of a licence to a settlement agent under s 27(1) of the SA Act and in particular the criterion of whether the settlement agent 'is a person of good character and repute and a fit and proper person to hold a licence': s 27(1)(b). However, in the course of the hearing, counsel for the Board expressly disavowed reliance on this submission. Instead, he submitted that in order to consider if a settlement agent is unfit to hold a licence as a settlement agent, it is necessary to consider whether the agent is possessed of 'sufficient moral integrity and rectitude of character' so as to permit the agent to be entrusted with the sort of work which the licence entails: cf Sobey v Commercial & Private Agents Board (1979) 22 SASR 70 (Sobey) at 76 (Walters J).
Counsel for Mr Poulton also submitted that the approach taken in Sobey was the appropriate test in this case.
The words in s 84(2)(d) of the SA Act appear, in almost identical terms, in s 28(2)(d) of the Land Valuers Licensing Act 1978 (WA) (LVL Act). The meaning of the word 'unfit' in s 28(2)(d) of the LVL Act was recently considered by the Tribunal in Land Valuers Licensing Board and Nevermann [2010] WASAT 38. In that case, the Tribunal observed at [23] [27]:
The ordinary and natural meaning of the word 'unfit', as it is defined in the Shorter Oxford English Dictionary, is, in relation to a person, 'not fitted, qualified, or worthy; incompetent'. Three observations can be noted about the use of the word 'unfit' in s 28(2)(d). The first is that 'unfit' is clearly a word of very broad meaning. Terms such as 'fit' or 'fit and proper' have been viewed as providing the widest scope for judgment as to a person's fitness to work in a particular industry or profession: see Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156 (Dixon CJ, McTiernan and Webb JJ).
At the same time, however, the word 'unfit' is a relative term. That is, the question of fitness cannot be considered in isolation, but rather will be drawn from the statutory context, from the activities in which valuers are engaged, and by the purposes to be served by those activities: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 (Toohey and Gaudron JJ) and Sobey v Commercial & Private Agents Board (1979) 22 SASR 70 at 74 (Walters J). Those matters will provide an indication of the personal attributes, abilities or knowledge which are required in order to be a valuer. A judgment may then be made as to whether there exists grounds for the conclusion that a person does not have the attributes, abilities or knowledge required to be a valuer. Conduct engaged in by a valuer in his or her professional capacity may indicate whether that person has the attributes, abilities or knowledge required to be a valuer. So too may conduct engaged in by a valuer in his or her personal capacity.
…
The test of whether a person is rendered 'unfit' to hold a licence is not materially different from the test of whether a person is a 'fit and proper' person to hold a licence. In the application of tests such as whether a person is 'fit' or 'fit and proper' in other licensing and disciplinary contexts, it has been accepted that it is not necessary to look only to matters arising under the provisions of the Act in question, provided that weight is given only to those matters that can fairly be seen to be relevant to the vocation or occupation in issue: Maxwell v Dixon [1965] WAR 167 at 169 (Hale J) (referred to with approval in The Registrar, Real Estate and Business Agents Supervisory Board and Anor v Barnett (unreported, Full Ct of WA, 26 August 1997, Lib No. 970426) at 45 (Kennedy J, Parker J agreeing)).
In this respect, we note that s 103(2)(d) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) is in similar terms to s 28(2)(d) of the LVL Act. In Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179 the Court of Appeal considered the test of whether a person is 'unfit' to hold a licence under s 103(2)(d) of the REBA Act. The Court equated that test with the test of whether that person is a 'fit and proper' person to hold a licence … .
In our view the same approach should be adopted in relation to the construction of the words in s 84(2)(d) of the SA Act. That approach is not materially different from the approach which was advocated by the parties in relation to s 84(2)(d) of the SA Act.
We turn, then, to consider the attributes, knowledge and experience which are required in order to be a settlement agent under the SA Act.

The attributes, knowledge and experience required for settlement agents under the SA Act

Subject to some exceptions (which are not presently relevant) a 'settlement agent' is a person who is a real estate settlement agent or a business settlement agent or both: s 3 of the SA Act. A 'real estate settlement agent' is defined in s 3 of the SA Act to mean:
… any person who arranges or effects the settlement of a real estate transaction for reward or who, whether for reward or otherwise, carries on business arranging or effecting settlements of real estate transactions and whether or not that business is carried on in conjunction with or as part of or associated with any other profession, trade, occupation or employment, but does not include the exceptions specified in section 4(1).
A 'real estate transaction' is defined in s 3 of the SA Act to mean the disposal by sale or exchange and the acquisition by purchase or exchange, of real estate, and includes any disposal or acquisition of goods, chattels or other property relating to the disposal or acquisition of real estate.
Settlement agents play an important role in the completion of real estate transactions, by arranging and effecting the settlement of those transactions. The range and complexity of the functions of a real estate settlement agent can be seen in cl 1 and cl 2 of Sch 2 to the SA Act. The role of a settlement agent will necessarily involve, amongst other things, the preparation of documents and the handling of large sums of money through the use of a trust account. The satisfactory conduct of the work of a settlement agent requires, amongst other things, a knowledge and understanding of the law in relation to real estate transactions and the ability to effect those transactions in compliance with the relevant legal requirements.
Given the significance of real estate transactions to the individuals concerned in those transactions, the importance to the economy of real estate transactions, and the need for certainty and stability in those transactions, it is essential that the community can be confident that the work done by settlement agents in arranging and effecting the settlement of real estate transactions will be performed competently, honestly and in compliance with applicable legal requirements.
The SA Act recognises this by prohibiting persons from carrying on business or holding themselves out as settlement agents unless they are licensed under the Act (s 26(1)), and by imposing quite rigorous requirements on the grant of a licence to a settlement agent, including that the person be of good character and repute and a 'fit and proper person' to hold a licence (s 27(1)(b)). The latter requirement ordinarily involves meeting certain educational requirements and obtaining a minimum period of practical experience: see s 27(2) and cl 1(1)(a) of Sch 1 to the SA Act. The SA Act also imposes rigorous duties on settlement agents with respect to the use of trust accounts (Div 2 of Pt IV of the SA Act).
The SA Act permits the Tribunal to take disciplinary action against settlement agents who are no longer considered to be fit to hold a licence as a settlement agent (s 84 of the SA Act).
It is apparent from this brief overview of the SA Act and of the work performed by settlement agents, that amongst the attributes which are essential to perform the functions of a settlement agent under the SA Act are honesty and a respect for the law. This conclusion is broadly consistent with the observations of Walters J in Sobey at 74 and 76 to which counsel for both parties made reference in the course of their submissions.
We turn now to consider whether Mr Poulton's convictions for the offences demonstrate a lack of these attributes.

The facts of, and circumstances surrounding, the offences

The facts upon which Mr Poulton was sentenced following his plea of guilty to the offences in the District Court were as follows:
The offender is the owner and licensee of Paramount Settlements, a real estate settlement agency. In 2007, the offender's agency had been engaged to act as settlement agent by the development company constructing the [Avena River] Apartments in Rivervale, and the [Sol] Apartments in West Perth.
The settlement dates for persons purchasing apartments in these developments were generally subject to the issuance of titles for the individual apartments from Landgate, the State of Western Australia's land administration authority. The process of obtaining new titles required the developer to make an application to Landgate, such an application requiring passage through Landgate's strata plan audit team and new title creation team.
On or about 24 May 2007, the offender caused two envelopes, each containing $500 worth of gift vouchers, to be delivered to Landgate. One of the envelopes was addressed to Terry Hawser, the supervisor of Landgate's strata plan audit team, and the other was addressed to Ian [Croasdale], the supervisor of Landgate's new title creation team.
Each envelope contained two Paramount 'with compliment' slips inscribed with a short message thanking them for their assistance with [Sol] Apartments and [Avena River] Apartments. At the time of providing the gift vouchers, the survey plan and strata management plan for both developments had been lodged at Landgate and was still under consideration.
The applications for new titles had not yet been submitted. The provision of the gift vouchers by the offender to Landgate staff was an incentive to have the applications processed for issuance of the new titles for [Sol] Apartments and [Avena River] Apartments dealt with expeditiously: District Court, 12 May 2009, transcript at 3-4.

In sentencing Mr Poulton for the offences, the learned sentencing judge made the following observations (District Court, 12 May 2009, transcript 1617):
The Land Titles offices, now known as Landgate, has as part of its functions approval of strata plans before the issue of titles for strata units. At any one time there's a backlog of strata plans awaiting for approval. Sometimes the plan is found to be defective and is sent back with requisitions to be complied with.
Plans lodged for approval are normally dealt with in a chronological order, depending on the date of lodgement. An application could be made for a plan to be lodged to be dealt with urgently and priority can be given at the discretion of the staff at Landgate.
There has been in the past a practice of surveyors and settlement agents lodging strata plans giving gifts to staff as an appreciation of past performances. This is usually at Christmas time and involves gift vouchers for liquor outlets and usually the gift vouchers are in the vicinity of about $25.
Landgate has in recent times developed a receiving gifts policy which is located on the Landgate intranet. Although it is acknowledged by one of the statements in the State brief, it doesn't seem to be completely known to the staff at Landgate.
It's in this context that you've committed two offences of sending gift vouchers of $500 to two Landgate staff members. At the time there appears to have been a backlog of about 120 surveys waiting to be approved at Landgate and you sought by providing the gift vouchers to obtain a priority for your clients, on whose behalf you had lodged plans. At the time you were the owner and licensee at Paramount Settlements … .
Your explanation is that you did not consider it at the time a bribe and thought what you were doing was acceptable practice within the industry. It is clear to me that you obviously did not give enough thought to what you were doing. It was clearly intended to as I indicated earlier and to use a common expression, oil the wheels and that is, obtain approval to the survey plans that you had lodged expeditiously.
This is something of course which happens in other countries and which is abhorrent to our system where we believe that public officials will not accept bribes in order to expedite or give favourable treatment to persons that they are dealing with but this is something that you consciously did on behalf of your clients.
… It wasn't an expression of thanks. It was meant to give your matters priority and that was clearly a bribe and clearly a criminal offence.
It's important that these sort of practices are removed and accordingly it must be made clear to others that these sorts of practices are unethical, dishonest and illegal.

The relevance of the convictions to Mr Poulton's fitness to hold a licence under s 84(2)(d) of the SA Act

The nature of the offences for which Mr Poulton was convicted and the circumstances surrounding the commission of those offences suggest that Mr Poulton does not have the attributes of honesty and respect for the law which we have identified as essential in order to carry out the functions of a settlement agent under the SA Act. We have reached that view having regard to the following considerations.
First, the offences were, by their nature, offences involving dishonesty. This much was conceded by counsel for Mr Poulton. The commission of the offences necessarily suggests that Mr Poulton does not have the attributes of honesty and respect for the law.
Secondly, the offences were committed at a time when Mr Poulton held a licence and triennial certificate as a settlement agent under the SA Act. More particularly, the offences were committed in the course of Mr Poulton's work as a settlement agent and his conduct was designed to achieve the more expeditious processing of his clients' applications for strata title and new title approval.
Thirdly, the offences themselves were of a serious nature. Bribery of public officials undermines the integrity of the institutions through which government is administered and undermines public confidence in the integrity of those institutions. The fact that Mr Poulton was willing to engage in such serious criminal conduct demonstrates a lack of honesty and respect for the law.
Counsel for the Board submitted that the Tribunal should find that Mr Poulton's conduct was, ultimately, motivated by the obtaining of a personal commercial advantage. However, at the sentencing hearing, counsel for Mr Poulton submitted that personal gain was not a motive for Mr Poulton's actions and that the only benefits that Mr Poulton may have gained as a result of his conduct were the appreciation of his clients and the earlier receipt of commissions which he would have received in any event. Mr Poulton was not sentenced on the basis that his conduct was motivated by personal financial gain. Given that Mr Poulton was not sentenced on that basis, and in view of the limited information before us, we do not draw the inference that Mr Poulton committed the offences for personal commercial advantage.
Counsel for Mr Poulton submitted that the offences should be regarded as at the lower end of the scale of seriousness for a variety of reasons. First, counsel submitted that Mr Poulton's conduct would not have damaged the public's faith in the system of land administration administered by Landgate. We are unable to accept that submission. The commission of the offences was intended to ensure that the applications by Mr Poulton's clients were given a priority higher than was warranted having regard to the order of receipt of those applications. The effect of that favourable treatment for Mr Poulton's clients would necessarily have been a delay in the processing of applications submitted by other persons and, potentially, additional costs being incurred by those other persons (for example in the accrual of interest on loans associated with strata developments): cf CCC Report at [234][235]. It is difficult to see how those potential consequences would not have damaged public confidence in the system of land administration administered by Landgate.
Counsel for Mr Poulton also submitted that the offences were at the lower end of the scale of seriousness because there was no subterfuge involved, in that the gifts were delivered to Mr Hawser and Mr Croasdale at work, rather than at their homes. We accept that the offences were not the most serious examples of bribery offences. However, that does not detract from the conclusion that the nature of the offences, as bribery offences, means that they are properly to be regarded as serious offences in the spectrum of offending more generally, and that they may therefore be regarded as indicative of a lack of honesty and respect for the law.
Counsel for Mr Poulton submitted that Mr Poulton's conduct should be considered in the context of the practice of gift giving which had developed within Landgate over some years, and judged by reference to what was the prevailing standard of behaviour at the time of the offences. The culture of gift giving was described in the CCC Report (Executive Summary at [19]) as follows:
The investigation revealed that a practice had apparently arisen of developers or persons acting for them providing, initially in the months approaching Christmas, alcohol gift vouchers or cash to Mr Croasdale and Mr Hawser, for themselves and the members of their teams, in appreciation for their work during the year. It had started some years ago, with the giving of cartons of beer. It later became gift vouchers. The cash payments were generally said to be for things such as Christmas or other staff lunches or dinners.
The CCC went on to note (Executive Summary at [23]) that:
The practice of giving gifts or cash for past 'good service' had evolved into one of providing benefits for Landgate staff to expedite the issue of titles on pending applications.
We do not accept that Mr Poulton's conduct simply reflected the prevailing standard of behaviour at the time. While the CCC Report suggested that some other individuals had engaged in similar conduct, we do not read the CCC Report as suggesting that the giving of gifts to secure favourable treatment in the future had become the norm.
In addition, it is clear from the circumstances in which the gift vouchers were given by Mr Poulton that they were not given as gifts in appreciation for work previously done by Landgate staff. In this sense they stood in marked contrast to the culture of gift giving which had developed in Landgate over the years, and which was referred to in the CCC Report.
Finally, the learned sentencing judge rejected the submission that the gifts were simply an expression of thanks for services that were going to be rendered. He found that the gift vouchers were given in the expectation that staff would process the applications by Mr Poulton's clients more expeditiously than would otherwise have been the case and clearly constituted a bribe: District Court, 12 May 2009, transcript at 17.
We are not persuaded by counsel's submissions that we should regard the offences as other than serious in nature. The commission of the offences suggests a lack of honesty and respect for the law on Mr Poulton's part.

Whether Mr Poulton is fit to hold a licence as a settlement agent in spite of his convictions for the offences

It is well recognised that the existence of prior convictions will not necessarily mandate the conclusion that a person is unfit to hold a licence to work in a particular industry or profession. A variety of factors may support the conclusion that notwithstanding a prior conviction a person may nevertheless be able to demonstrate that he or she has the attributes, abilities and knowledge which the community is entitled to expect of a settlement agent licensed under the SA Act.
In Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) (at 8) Justice Wheeler referred to a number of factors which may suggest that notwithstanding a prior conviction, a person is fit to be licensed in a particular industry or occupation. The factors to which her Honour referred were:
(a)Demonstrated genuine remorse and contrition, true insight and understanding of the offending conduct, particularly if this is demonstrated by the person's actions as well as their words;
(b)The passage of a substantial period of time since the commission of the offence;
(c)A change in the person's circumstances since the offences were committed which indicates that the factors giving rise to the offences have been eliminated; and
(d)The person's character since the commission of the offence including his lack of offending, age, family support, paid involuntary work and character references.
Those same factors are also relevant, in our view, to the question whether a person is unfit to hold a settlement agent's licence by virtue of a prior conviction. Consideration of factors such as these may assist in determining whether Mr Poulton has demonstrated that he does in fact have the attributes of honesty and respect for the law that his offending behaviour called into question.
Counsel for Mr Poulton submitted that we should take into account a range of factors in determining if Mr Poulton is presently unfit to hold a licence. To a large extent those factors overlapped with the factors referred to in Tavelli. We have referred to the matters relied on by counsel, and to the factors referred to in Tavelli, below.

(a) Remorse and contrition, insight and understanding of the offending conduct

Mr Poulton pleaded guilty to the offences at an early stage. He did not appeal his sentence. We accept that his early plea of guilty is an indication that he was remorseful for his conduct. In addition, through his counsel at the sentencing hearing and through his counsel at this hearing, Mr Poulton expressed his remorse for the commission of the offences.
However, despite those expressions of remorse, three factors suggest that Mr Poulton does not have a real insight into, nor an understanding of, the extent of the wrongdoing inherent in his conduct.
First, in a telephone conversation between Mr Poulton and one of his associates, Mr Acott, on 6 July 2007 (see CCC Report at [79] [81]) Mr Poulton told Mr Acott that he would have to 'work out a way of … getting around' the fact that following the investigation into the gifts he had given, he would no longer be able to provide vouchers to Landgate staff. Mr Poulton and Mr Acott then proceeded to discuss other ways in which benefits might be made available to Landgate staff without the need for the use of gift vouchers. Although by that stage it must have been very clear to Mr Poulton that the provision of the gifts was wrong, his concern at the time of this conversation was to ensure he could continue to do so without the knowledge of Landgate management: see CCC Report at [82]. This telephone conversation suggests that shortly after the commission of the offences, Mr Poulton either did not appreciate, or had no regard for the possibility, that he had done anything wrong.
Secondly, at the sentencing hearing Mr Poulton's counsel sought to persuade the Court that Mr Poulton considered the gifts 'to be a gesture of appreciation in an ongoing relationship between his firm – settlement firm and Landgate, with whom he had many many dealings' (District Court, 12 May 2009, transcript at 6). His counsel submitted that 'he has instructed me and he has told the author of the presentence report that he wasn't realising at the time the inappropriateness of his behaviour' and that 'all he was doing was endeavouring to do his best for his clients … trying to get the approval as quickly as possible so that the settlements could take place' (District Court, 12 May 2009, transcript at 8). The learned sentencing judge did not accept that Mr Poulton was unaware that what he was doing was wrong, but instead found that the payment of the bribes was something that Mr Poulton 'consciously did' on behalf of his clients (District Court, 12 May 2008, transcript at 17).
Thirdly, as we have already observed, through his counsel in this hearing Mr Poulton urged us to view the offences in the context of the 'culture of sanctioned gift giving' which he submitted prevailed at the time. It was submitted that this was not intended to negate the seriousness of the offences. Mr Poulton's intention appears to have been to downplay his own culpability for the offences by reference to the fact that others had engaged in the same conduct. That also suggests a lack of insight on Mr Poulton's part into the degree of wrongdoing inherent in his conduct.

(b) Change in circumstances

Generally speaking, it does not appear that there has been any change to Mr Poulton's circumstances since the commission of the offences so that it might be said that the factors which led to the commission of the offences have been removed. As Mr Poulton has surrendered his settlement agent's licence and triennial certificate, he can no longer work as a settlement agent. In that sense the opportunity for him to engage in conduct of the kind which resulted in the commission of the offences no longer exists. However, having regard to the fact that the SA Act permits applications under s 83 to be made notwithstanding that a person's licence or triennial certificate has been surrendered, this particular change of circumstance cannot be given any weight.

(c) Character – generally and since the commission of the offences

Counsel for Mr Poulton relied on Mr Poulton's long standing exemplary character, which was acknowledged by the learned sentencing judge. However, although his unblemished record is relevant it warrants little weight in the light of the serious nature of the offences: cf Mavaddat and Real Estate and Business Agents Supervisory Board [2009] WASCA 179 at [79] (Newnes JA, McClure JA and Pullin JA agreeing).
We take into account the fact that the offences were committed in 2007 and Mr Poulton has not been convicted of any other offences since that time. However, the three year period constitutes only a relevantly short period of time since the commission of what were serious offences. The restoration of confidence in a person's standard of conduct and his personal attributes may take a significant period of time in a case where the person has committed a serious offence which suggests an absence of those qualities: cf Ex parte Tziniolis, ReMedical Practitioners Act [1967] 1 NSWR 357 at 366 (Walsh JA).
There was no information before us in relation to Mr Poulton's character since the offences, apart from the absence of any further convictions, which would enable us to conclude that he has since displayed the personal attributes which were called into question by his conviction for the offences. Mr Poulton did not seek to put any character references before us.
Counsel for Mr Poulton submitted that we should take into account Mr Poulton's understanding of his need to comply with the law, which was evidenced by his making an application under s 5A of the Business Names Act 1962. However, we do not place much weight on this consideration. Compliance with s 5A of the Business Names Act 1962 was necessary in order avoid the commission of an offence. In any event, compliance with that obligation is overshadowed by Mr Poulton's failure to comply with the requirements of the Criminal Code when he committed the offences, and his apparent lack of insight into the inherent criminality of that conduct.

(d) Business name proceedings

Counsel for Mr Poulton submitted that we should take into account the fact that Mr Poulton's longstanding exemplary character was recognised by the District Court in the business name proceedings. On 7 August 2009 the District Court heard an application by Mr Poulton under s 5A of the Business Names Act 1962. His Honour Judge O'Neal concluded that Mr Poulton should be granted leave to continue to use the business name because
the offences while reflecting a particular moral blind spot and a serious criminal culpability were not directed at the clients of this business. The criminal offending does not suggest that members of the public dealing with Mr Poulton are at risk in any relevant sense.
In our view, the outcome of the business name proceedings is not relevant to the determination of whether Mr Poulton is now fit to hold a settlement agent's licence. The business name proceedings concerned different legislation from the SA Act, and the purpose behind s 5A is different from that behind s 84 of the SA Act.
Section 5A of the Business Names Act1962 is intended to protect members of the public who deal with persons who operate businesses under business names. The requirement for leave under s 5A seeks to avoid the situation where a person with a criminal record is able to operate behind a business name, with the result that members of the public may not readily be able to make an informed judgment about whether they wish to deal with that person: Farmer v The Honourable Minister for Consumer & Employment Protection for the State of Western Australia [2003] WADC 25 (Farmer) at [6] (Blaxell DCJ).
In contrast, although disciplinary proceedings against settlement agents under the SA Act serve to protect the public, they also serve other (albeit related) purposes. Those purposes include maintaining proper professional standards within an industry or profession: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 at [25] (Buss JA). In addition, the imposition of disciplinary penalties has the effect of deterring others who may be inclined to transgress in the future: Jemielita v Medical Board of Western Australia (unreported), WASC Library No. 920584, 13 November 1992 (Owen J).
The factors relevant to the Court's exercise of discretion to grant leave under the Business Names Act1962 are not the same as the considerations relevant to fitness under s 84(2)(d) of the SA Act. The factors which are to be taken into account in deciding whether to grant leave under s 5A include the circumstances and seriousness of the offences the subject of the convictions, the personal circumstances of an applicant, the potential detriment to members of the public if leave is granted and the potential detriment to the applicant if leave is not granted: Farmer at [8] (Blaxell DCJ). His Honour Judge O'Neal granted leave to Mr Poulton to operate under the business name because his identity as the person carrying on the business would be evident from the requirement that he display his licence at the business premises, and because he concluded that Mr Poulton's convictions did not suggest that members of the public dealing with Mr Poulton as clients of his settlement agency were at risk of future misconduct by him.

In the present case, the factors relevant to Mr Poulton's fitness to hold a settlement agent's licence under the SA Act are not limited to those referred to in Farmer.
Accordingly, the fact that Mr Poulton was permitted to continue to operate under a business name and was not considered to pose a risk to his own clients in doing so, does not assist in determining his present fitness to hold a licence.

(e) Risk of further offending

Counsel for Mr Poulton submitted that Mr Poulton did not pose any risk of further offending and therefore the conclusion was not warranted that he was presently unfit to hold a licence. Even if it is accepted that the risk of re‑offending, having regard to the circumstances including Mr Poulton's age (he is 66 years old) is low, that is not determinative of the present application. As we have already observed, the purposes behind the disciplinary provisions in s 84 of the SA Act are not solely directed to protecting members of the public, but also serve other related purposes including maintaining proper standards for settlement agents and deterring other settlement agents from engaging in similar conduct. As a result, the existence of a low risk of re-offending does not necessarily preclude the conclusion that a person is unfit to hold a licence as a settlement agent.

Conclusion in relation to Mr Poulton's fitness to hold a licence

The nature and seriousness of the offences which were committed by Mr Poulton suggest that he does not have the personal attributes of honesty and respect for the law which are essential for carrying out the functions of a settlement agent under the SA Act. None of the factors to which we have referred, whether considered alone or in combination, have persuaded us that in spite of Mr Poulton's convictions for the offences he is presently fit to hold a licence.
Accordingly, we are, on balance, satisfied that Mr Poulton is unfit to hold a licence as a settlement agent under the SA Act, and we are therefore satisfied that proper cause exists for disciplinary action against Mr Poulton under s 84(2) of the SA Act.
At the hearing, the parties sought to defer submissions on the question of penalty until the Tribunal had determined whether proper cause exists for disciplinary action. Accordingly we will now hear the parties in relation to whether, and if so what, action should be taken by the Tribunal pursuant to s 84(1) of the SA Act in view of our conclusion that proper cause exists for disciplinary against Mr Poulton.
The application will now be listed for a directions hearing so that orders may be made in relation to the filing of submissions on penalty and for the listing of a further hearing, if necessary.

Orders

We make the following orders:
1.Proper cause exists for disciplinary action against Gordon Andrew Poulton pursuant to s 84(2) of the Settlement Agents Act 1981 (WA).
2.The application is listed for a directions hearing to commence at 11.00 am on 11 May 2010 to make orders for the filing of submissions and, if necessary, a further hearing in relation to any action which should be taken by the Tribunal against Mr Poulton pursuant to s 84(1) of the Settlement Agents Act 1981 (WA).

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J PRITCHARD, DEPUTY PRESIDENT

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