SETTLEMENT AGENTS SUPERVISORY BOARD and POULTON - [2010] WASAT 65

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASAT 65
Decision Date

CaseChat Overview and Summary

The Settlement Agents Supervisory Board sought to bring disciplinary proceedings against Gordon Andrew Poulton under the Settlement Agents Act 1981 (WA). The Board claimed that Mr Poulton was unfit to hold a licence as a settlement agent due to his convictions for bribing public officers. The State Administrative Tribunal found that there was proper cause for disciplinary action against Mr Poulton as he did not possess the essential personal attributes of honesty and respect for the law required to carry out the functions of a settlement agent. The Tribunal rejected arguments that Mr Poulton was remorseful for his actions and that he had changed since the offences were committed. The Tribunal indicated that it would hear from the parties in relation to any action which should be taken against Mr Poulton pursuant to the Settlement Agents Act 1981 (WA).

Orders