Tucker v Real Estate Agents Authority
[2017] NZHC 1894
•10 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-002859 [2017] NZHC 1894
BETWEEN GRANT TUCKER
Appellant
AND
REAL ESTATE AGENTS AUTHORITY
Respondent
Hearing: 4 April 2017 Counsel:
N M Pender for appellant
M H Hodge and K H Lawson-Bradshaw for respondentJudgment:
10 August 2017
JUDGMENT OF KATZ J
This judgment was delivered by me on 10 August 2017 at 11:00am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Auckland
Franks Ogilvie, Wellington
Introduction
[1] Grant Tucker was found guilty by the Real Estate Agents Disciplinary Tribunal (“Tribunal”) of two charges of misconduct.1 The Tribunal found that Mr Tucker had pursued a dispute with his former employer, Johnathan Wills, and Mr Wills’ real estate agency, Custom Residential Ltd, in a manner that “would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful”.2 In a subsequent decision, the Tribunal concluded that the appropriate penalty was to cancel Mr Tucker’s real estate licence.3 Mr Tucker appeals both decisions.
[2] Amongst other things, the Tribunal found that Mr Tucker:
(a) sent a package containing faeces to David Beard, who was Mr Wills’
and Custom Residential’s lawyer;
(b)sent anonymous letters to customers and employees of Custom Residential, making derogatory and offensive allegations about Mr Wills and Custom Residential;
(c) left an offensive voice message on Mr Wills’ telephone; and
(d)sent two packages containing soiled sanitary pads and condoms to Mr Wills, and a further two packages with the same contents to Mr Beard.
[3] The key issue on appeal is whether the Tribunal erred in finding, on the balance of probabilities, that Mr Tucker was the person who sent the four packages containing sanitary pads and condoms to Messrs Wills and Beard. Ms Pender submitted, on behalf of Mr Tucker, that if that conduct (and also various communications that she argues were protected free speech) is excluded from the
Tribunal’s analysis, then Mr Tucker’s conduct would not reasonably be regarded as
1 Real Estate Agents Authority (CAC 301) v Tucker [2016] NZREADT 65 [Substantive Decision]
at [81].
2 At [80].
3 Complaints Assessment Committees 301 and 403 v Tucker [2017] NZREADT 4 [Penalty
Decision] at [47].
disgraceful by agents of good standing, or reasonable members of the public. It necessarily follows, Ms Pender submitted, that the Tribunal erred in cancelling Mr Tucker’s licence.
Approach on appeal
[4] Mr Tucker’s appeal against the Tribunal’s finding that he was guilty of misconduct is a general appeal. The principles set out in Austin, Nichols & Co Inc v Stichting Lodestar accordingly apply. In that case the Supreme Court confirmed that on a general appeal the appellate court has the task of arriving at its own assessment of the merits of the case. Nevertheless, in cases involving an assessment of credibility of witnesses (as in this case), the advantage of the first instance court in hearing directly from the witnesses remains a matter properly to be taken into
account by the appellate court.4
[5] As for the penalty appeal, counsel noted that there are conflicting authorities on the correct approach to such appeals in the professional disciplinary context. Some decisions have held that penalty decisions are exercises of discretion.5 Others have held that the court must come to its own view of the merits on both misconduct and penalty in appeals from professional disciplinary bodies.6 Accordingly, for the purposes of the penalty appeal, the respondent did not object to the Court proceeding (in Mr Tucker’s favour) on the basis that there is a general right of appeal on the
issue of penalty. I proceed accordingly.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]-[5], [16] and [19]. See also Dr G v Director of Proceedings HC Auckland CIV-2009-404-951, 13
October 2009 at [5]-[9].
5 Morton-Jones v The Real Estate Agents Authority [2016] NZHC 1804 at [81]-[86]; Bhanabhai v Auckland District Law Society [2009] NZAR 282 (HC) at [33]; Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354 at [43]; Katamat v Professional Conduct Committee [2012] NZHC 1633, [2012] NZAR 320 at [37]-[38];
and Joseph v A Professional Conduct Committee [2013] NZHC 1131 at [32]-[36].
6 Hart v Auckland Standards Committee (1) of The New Zealand Law Society [2013] NZHC 83, [2013] 3 NZLR 103 at [12]; Sisson v Standards Committee (2) of the Canterbury-Westland
Branch of the New Zealand Law Society [2013] NZHC 349, [2013] NZAR 416 at [15]; Professional Conduct Committee of the Dental Council v Moon [2014] NZHC 189 at [20]-[21]; Withers v Standards Committee No 3 of the Canterbury-Westland Branch of the New Zealand
Law Society [2014] NZHC 611 at [37]; Davidson v Auckland Standards Committee No 3 [2013]
NZHC 2315, [2013] NZAR 1519 at [6]-[9]; and TSM v A Professional Conduct Committee
[2015] NZHC 3063 at [12]-[15].
The facts
[6] Most of the Tribunal’s factual findings have not been challenged on appeal. I will therefore set out in this section the facts that are not in dispute, based largely on the Tribunal’s decision. In the next section I will focus on the facts that are in dispute, namely whether Mr Tucker was the sender of the four packages containing sanitary pads and condoms to Messrs Wills and Beard.
[7] Mr Wills is a director and shareholder of Custom Residential. Mr Tucker was employed as a contract real estate salesperson at that agency between January and July 2011. A dispute arose with another real estate agency about payment of commission to Mr Tucker on a property sale. Mr Wills got involved and resolved the dispute by agreeing to split the commission with the other agency. Mr Tucker took exception to such a course. He left Custom Residential and brought proceedings against it in the Disputes Tribunal. His claim was successful, and on 4
December 2012 Custom Residential was ordered to pay Mr Tucker his full commission in respect of the disputed sale.
[8] Mr Tucker’s evidence is that, following his success in the Disputes Tribunal, he was vocal about his criticisms of Custom Residential “and in particular about the ability of John Wills as the sole director to manage the agency fairly and commercially”. He says that, as a result, the management of Custom Residential invited him to their office near the end of 2013 to see whether a settlement could be reached which would resolve their issues. Mr Tucker sought an apology about their handling of the commission dispute, but none was forthcoming.
[9] In early 2014 matters escalated further. Mr Tucker embarked on a lengthy campaign against Mr Wills, Custom Residential, and Mr Beard. In February 2014 he sent an anonymous letter, signed “Tiki Leaks”, to an employee of Custom Residential. It included statements such as, “[Custom Residential] just didn’t have the balls to stand up for their salespeople”. The letter also referred to the “licencee”, Mr Tucker, having to “take [Custom Residential] to the small claims court” to recover commission, and stated that “the arrogance of the sole director [Mr Wills] is only exceeded by his inability to comprehend” the Real Estate Agents Act 2008.
[10] Mr Tucker’s partner was also an employee of Custom Residential throughout this period. She had been the joint listing agent, together with Mr Tucker, for the relevant property. She did not leave Custom Residential when Mr Tucker did, however, and their relationship ended in late 2013. Mr Tucker acknowledges that he was very upset by this, and that it impacted on his subsequent decision-making.
[11] On 15 February 2014 a dispute arose between Mr Tucker and his former partner regarding her alleged failure to return his dogs. Mr Tucker then sent her a threatening, homophobic and offensive email from his professional email address, stating:
I really do feel sorry for you! Your treachery is only exceeded by your stupidity. The fact that you were prepared to support someone who didn’t have a clue about a really simple act of law and used yours and my income to pay off someone who was blackmailing him is plain stupidity. The buck stops at the top and your good friend John Wills was completely out of his depth when it came to the [Real Estate Agents Act].
I have kicked [Mr Wills’] gay ass in the small claims court and [the other real estate agency] in the [Tribunal] twice and he continues to burry his head in the sand and not admit he fucked up. It must be hard for the Cunts R us crew to get into the office with that massive arrogant ego in there.
I even helped the dumb fucks put a case together to get the commission back and they still fucked it up and pussy ass Wills didn’t want to know cause he couldn’t get his head around it. I can see why he is an ex-cop NO balls, and a gutless faggot! I see he’s also giving you every support during these trying times. What a girl!
You can only imagine what I have in store for you and the snakes at Cunts R
us.
It’s really not hard its just a case of exposing Cunts R us for what they really are.
If you would like to thank me for getting your commission back for you off pussy ass Wills and apologise I will just focus on Cunts R us.
…
[12] The following day, 16 February 2014, the dispute between Mr Tucker and his former partner escalated further, and an altercation of some sort took place between them during which Mr Tucker was apparently pepper-sprayed. Following that altercation he left the following voicemail message on Mr Wills’ phone:
Yeah I bet you are John. Cocksucking faggot. One of your most loyal contractors has got herself into trouble today. I suggest you show her er ah the same loyalty as she showed you and help her out. Over and out.
[13] Mr Tucker was subsequently charged with an offence under the
Telecommunications Act 2001 in relation to this voicemail message.
[14] On 17 February 2014, the day after Mr Tucker had left Mr Wills the voicemail message referred to above, a New Zealand Post package containing a decapitated rat was received in Custom Residential’s mail box. The words “JILTED LOVE” had been written in the panel for the sender’s details. Mr Tucker strenuously denied sending the package, and the Tribunal was not satisfied that it had been proved, on the balance of probabilities, that he was the sender.7 The relevance of this incident, for present purposes, is simply that it precipitated Mr Wills’ decision to seek legal advice from Mr Beard (who had not previously acted for Custom
Residential). Mr Beard wrote to Mr Tucker on 20 February 2014, serving him with a trespass notice.
[15] Meanwhile, on 18 February 2014, Mr Tucker (presumably unaware at that stage that Custom Residential was engaging a new lawyer) sent an email to Mr Lockhart, the lawyer who had previously represented Custom Residential in its dealings with Mr Tucker. The email was from Mr Tucker’s business email account and included various derogatory comments and allegations about Mr Wills and Custom Residential employees.
[16] A couple of weeks later, on 7 March 2014, a New Zealand Post package was delivered to Mr Beard. The package contained faeces and broken glass, together with a letter from Mr Tucker dated 26 February. The faeces had apparently originally been in a glass bowl, which broke in the post. Mr Tucker’s letter claimed that the bowl of faeces had been left in his mailbox. He said that he believed someone from Custom Residential was responsible. Mr Wills’ evidence, however, was that he had met with his staff, and did not believe that anyone from Custom Residential was responsible. Mr Tucker was charged with posting an objectionable
thing in relation to this incident.8
[17] On 21 March 2014 Mr Beard, Mr Wills and Custom Residential laid a
complaint regarding Mr Tucker with the Real Estate Agents Authority (“Authority”).
[18] On 29 March 2014 Mr Tucker sent an anonymous letter to Mr Dowdle, a salesperson at Custom Residential. The letter included a photograph of Mr Dowdle, modified to show him with an elongated nose, and said:
You have been telling porkie pies and it shows.
Nobody likes you when you tell porkie pies, not even God.
Why would an honourable man put his reputation at risk to protect a dishonourable rat?
His enemies have become your enemies! His screw ups you problem! His arrogance is only exceeded by his stupidity.
[19] The following month, on 15 April 2014, Mr Tucker sent a further anonymous letter, this time to the manager of another real estate agency. Enclosed with this letter was a copy of one of Custom Residential’s flyers, and a page of photographs. Photographs of Mr and Mrs Dowdle had been modified to show them with elongated noses, and each wearing a three cornered hat with the word “dumb” or “dumba” typed on them. Each photograph had a speech bubble which purported to portray each of them admitting to breaches of the Fair Trading Act 1986 and to lying. The accompanying note from Mr Tucker stated:
FYI. In case you didn’t already know your competition just never stops
deceiving the public.
[20] On 15 May 2014 Mr Tucker sent an anonymous letter to another salesperson at Custom Residential, Ms Blackie. That letter said:
Do you really want to be part of dodgy company like [Custom Residential]
where even the management don’t trust the owner?
Its unlikely you were told they are currently under investigation.
Unlimited Potential is a far better place for you! Just talk to one of the many ex-[Custom Residential] people there.
[21] Enclosed with this letter was a copy of an advertisement featuring Mr and Mrs Dowdle, announcing them as co-owners of Custom Residential. Underneath their photograph was the following text:
Well… actually it was more one of a TUI’s beer moments… “Yeah ri ght ” .
They didn’t buy into Custom Residential and have never been Co-Owners.
After doing a spot of due diligence and management they really found they couldn’t trust John Wills with their money as minority shareholders.
Which begs the question, why would anyone trust Custom Residential or
John Wills with one of their most valuable assets?
[22] There was also a photograph of Mr Wills (with an elongated nose) with a speech bubble stating:
I’m so brilliant in my mind I don’t need those dicks anyway!
The text alongside this photograph was:
Sole shareholder and Director of Deception, honest John Wills. “No one has ever had to take legal action against him to get paid for anything” “Yeah right”.
[23] The next relevant event was the laying of the first charge of misconduct against Mr Tucker by the Authority, on 16 September 2014. Mr Tucker responded to that charge on 9 October 2014.
[24] Matters rested there until 13 March 2015, when Mr Tucker saw Mr Wills collecting money for charity at the Three Lamps corner of Ponsonby Road. Mr Tucker approached him and said:
Found your balls yet you gutless piece of shit.
[25] The District Court hearing in relation to the charge against Mr Tucker under the Telecommunications Act 2001 (the voicemail message referred to at [12] above) took place on 16 March 2015. Judgment was delivered on 1 April 2015. The charge was that, in using a telephone device, Mr Tucker had used profane, indecent or obscene language, with the intention to offend the recipient.9 Judge N J Mathers
dismissed the charge.10 Her Honour had no doubt that calling someone a
“cock sucking faggot” constitutes indecent or obscene language.11 She noted, however, that the factual evidence before her was limited (it comprised an agreed statement of evidence under s 9 of the Evidence Act 2006). The Judge accordingly had no evidence of the surrounding circumstances or context in which the statement was made, or the relationship between the parties. Further, there was no direct evidence that Mr Wills was offended.12 Ultimately, the Judge concluded that it had not been proved beyond reasonable doubt that the words were used with the intention of offending the recipient, as required by s 112(1) of the Telecommunications Act 2001.13 The charge was accordingly not proved, although there was no dispute that it was Mr Tucker who had left the indisputably “indecent and obscene” message.14
[26] Several weeks later the other criminal charge against Mr Tucker, for posting an objectionable thing (the package of faeces), also came before the District Court. Judge C M Ryan gave a sentencing indication in relation to that charge on 20 April
2015.15 Mr Tucker accepted that indication. He pleaded guilty to the charge and
was discharged without conviction on 30 June 2015. Judge Ryan referred to Mr Tucker’s actions as “distasteful”, and noted that they would be seen by the public as “disgusting and offensive”.16 She described the offending as “moderately
serious”,17 but took into account information she had regarding Mr Tucker’s health
issues and also the possible future consequences of disciplinary proceedings by the Authority.18 The Judge directed a reparations payment to Mr Beard,19 and Mr Tucker paid this into the Court on 30 June 2015.
[27] Unfortunately, Mr Tucker’s involvement with the criminal justice system did not cause him to reflect on his behaviour or change his ways. On the contrary, he continued to pursue his campaign against Mr Wills and Custom Residential with considerable vigour. Between June and November 2015, Mr Tucker sent anonymous
letters to seven clients of Custom Residential containing derogatory and/or offensive
11 At [6].
12 At [7].
13 At [8].
14 At [9].
15 R v Tucker DC Auckland CRI-2014-004-3578, 20 April 2015.
16 At [19].
17 At [22].
18 At [24]-[31].
comments about the agency. The letters were clearly aimed at undermining the confidence of those clients in Custom Residential. For example, in a letter dated
14 June 2015, Mr Tucker pretended to be a person interested in purchasing a property the client had listed with Custom Residential. The letter stated, amongst other things, that:
We really like your property and would be more than happy to pay you a fair price.
However we don’t trust your agents in any way. They are not able to give us a straight answer on anything about the property and seem sly and cunning.
When we mentioned this to friends they have told us that most people who used to work there quit because the owner ripped the sales people off.
If you decide to change to some trust worthy agents who know what they are selling we will then make you a fair offer.
[28] The tone and content of other, undated, letters was similar. The letters made disparaging remarks about Custom Residential’s sales techniques, success rate, advertising practices and so on. They included passages such as:
We have heard nothing but bad things about your agents and prefer not to have anything to do with them.
…
You have every right to cancel your agency with them and use an honest agency because they would have been dishonest con-artists once again.
…
Did they tell you their top agent for Kingsland resigned and moved to Ray
White as did all their good honest agents?
…
The reason for this is all their good agents resigned from the company in
2014 due to a lack of trust in the deceptive management.
…
The level of trust in this agency among local residentents [sic] would be the lowest of all agencies in Auckland.
[29] Finally, on 28 October 2015 Mr Tucker posted a comment on Custom
Residential’s Facebook page stating:
People who have worked there [Custom Residential] have needed to take legal action to get paid. That pretty much sums up their integrity.
[30] As I have already noted, the Tribunal found that it had not been proven that Mr Tucker was the sender of the “JILTED LOVE” package containing the decapitated rat.20 Other than that, however, all of the conduct I have summarised above was found to be proved by the Tribunal. Mr Tucker does not challenge those findings on appeal. He has, however, challenged certain other factual findings made by the Tribunal. I now turn to consider those.
Did the Tribunal err in concluding that Mr Tucker was the sender of the four offensive packages?
[31] The Tribunal found that Mr Tucker:21
(a) sent a package containing a soiled sanitary pad and a condom to
Mr Beard on 17 July 2015;
(b) sent a package containing a soiled sanitary pad and a condom to
Mr Wills on 22 July 2015;
(c) sent a package containing two soiled sanitary pads to Mr Beard on
23 July 2015; and
(d) sent a package containing a soiled sanitary pad and a condom to
Mr Wills on 26 August 2015.
[32] Mr Tucker disputed that he was the sender of those packages. The Tribunal rejected his evidence and found these particulars to be proven, on the balance of
probabilities. Mr Tucker appeals those findings.
20 Substantive Decision, above n 1, at [32].
21 Substantive Decision, above n 1, at [69].
The Tribunal’s findings regarding the four offensive packages
[33] Mr Tucker gave evidence before the Tribunal. He denied being the sender of the four offensive packages. Messrs Wills and Beard also both gave evidence, and were cross-examined by Mr Tucker. He put it to them that they had sent the packages to themselves in an attempt to frame him. They denied doing so.
[34] The Tribunal accepted the evidence of Messrs Wills and Beard, and rejected that of Mr Tucker. In making that credibility finding the Tribunal said:
[68] Mr Tucker denied that he sent these packages. He said he had no doubt that Mr Wills and Mr Beard sent them to themselves, because they were bitterly disappointed that he had not been convicted in the criminal proceedings, and believed that (following his admission that he had sent Mr Beard the package of faeces) Mr Tucker would be the prime suspect. He rejected outright the suggestion put to him in cross-examination that the notion that Mr Wills or Mr Beard had sent the packages to themselves was absurd. He said he would never do anything as petty as this, but would go through proper processes.
[69] The packages contain similar, offensive, contents, and they were received over a short period of some five weeks. They were sent over a similar period as the letters set out at [62], above. They were sent to two people towards whom Mr Tucker had particular animosity. We are satisfied that one person sent all four packages, and that they were sent by Mr Tucker. The Tribunal finds this particular proved.
(footnotes omitted)
[35] Ms Pender, on behalf of Mr Tucker, submitted that there was an insufficient evidential basis for the Tribunal’s finding that Mr Tucker was responsible for sending the four packages. She submitted that the Tribunal erred by taking a “binary” approach. In essence, the Tribunal assumed that if Messrs Wills and Beard did not send the packages to themselves, then Mr Tucker must have sent them. Ms Pender argued that the Tribunal did not give sufficient consideration to the possibility that an unknown third person could have sent the four packages. For example, the packages could have been sent by someone who had seen the extensive publicity about the dispute in the media, following Mr Tucker’s discharge without conviction on the charge arising out of him sending the package of faeces to Mr Beard. Such a person may have wished to frame Mr Tucker, or could have had some other motive for sending the packages.
Discussion
[36] The case that Mr Tucker was responsible for sending the four offensive packages to Messrs Wills and Beard was largely circumstantial. Circumstantial evidence relies on reasoning by inference. It derives its force from the involvement of a number of factors that independently point to the guilt of the defendant. The analogy that is often drawn is that of a rope. Any one strand of the rope may not support a particular weight, but the combined strands are sufficient to do so. The logic that underpins a circumstantial case is that the defendant is either guilty or the victim of an implausible, unlikely series of coincidences.
[37] In my view there was ample evidence before the Tribunal to support its finding, on the balance of probabilities, that Mr Tucker was the sender of the four offensive packages.
[38] First, the contents of the four packages were almost identical. They were sent during a fairly narrow window of time (one month). Messrs Wills and Beard each received two packages. It is clear that the sender of the parcels must have felt a high degree of animosity towards both men.
[39] Mr Beard only became Custom Residential’s lawyer as a result of Mr Tucker’s actions. Messrs Wills and Beard gave evidence that they were not in a dispute with anyone else who they considered could be responsible for these kinds of acts. The only person known to have had a history of animosity towards both men, as illustrated by the (now) undisputed facts that I have outlined above, was Mr Tucker.
[40] When interviewed by investigating officers, Mr Tucker had identified several people whom he believed might have had reason to send the parcels. Those people were called to give evidence before the Tribunal. They each gave evidence that they were not responsible for sending the parcels. That evidence was not challenged by Mr Tucker.
[41] Mr Tucker’s actions in previously sending a package containing faeces to Mr Beard demonstrated his willingness to send extremely unpleasant packages through the post. This is highly unusual behaviour.
[42] It has also been established that Mr Tucker has a propensity to send anonymous communications in pursuit of his grievance against Mr Wills and Custom Residential. This is despite Mr Tucker’s claim in the Tribunal that he was not the type of person who would send things anonymously. Rather, he claimed, he would put his name to things. That has been proven untrue, however, in light of the Tribunal’s findings (not challenged on appeal) that Mr Tucker sent anonymous communications attacking Mr Wills and Custom Residential to a wide range of people. Again, sending anonymous communications is highly unusual behaviour.
[43] The timing is also relevant. The four offensive packages were sent during the same time period that Mr Tucker was sending anonymous letters to a number of Custom Residential clients (as summarised at [27] and [28] above). His sending of the anonymous letters during this time period demonstrates the depth of his animosity towards Mr Wills and Custom Residential (and Mr Beard, as their lawyer) at that particular time.
[44] Written on the envelope of the package received by Mr Beard on 17 July
2015 were the words “BANK CHECQ”. As I have previously noted, although Mr Tucker was discharged without conviction for sending faeces through the mail to Mr Beard, he was ordered to make a reparation payment to Mr Beard. He paid the required sum into the District Court on 30 June 2015, a couple of weeks before this package was sent. Being ordered to pay reparation to Mr Beard must have been particularly galling for Mr Tucker given his perception (following the commission dispute) that he was the true victim, not Mr Wills, Mr Beard or Custom Residential.
[45] In addition, one of the packages sent to Mr Beard included the message, “HARDEN UP SON”. It is a reasonable inference, in my view, that this was a reference by Mr Tucker to Mr Beard’s Victim Impact Statement in the District Court, in which he described the impact that opening the package of faeces had had on him. The comment, “HARDEN UP SON”, is consistent with the “macho” tone of other written and verbal communications made by Mr Tucker in pursuit of his grievances.
These included the use of phrases such as “pussy ass”, “no balls”, “gutless faggot”, “what a girl!” and “found your balls yet?”
[46] Finally, the Tribunal had the benefit of seeing Mr Tucker give evidence over an extended time period, and was well placed to assess his credibility. It found that his evidence lacked credibility on a number of issues, including in relation to many matters that are no longer in dispute. The Tribunal also rejected Mr Tucker’s claim that he was not the sender of the packages. There is nothing to suggest that the Tribunal erred in that assessment.
[47] Taking all of these matters into account, there was ample evidence to support the Tribunal’s finding, on the balance or probabilities, that Mr Tucker was the sender of the four offensive packages. The alternative scenarios advanced by Mr Tucker are simply implausible and are not supported by the evidence.
The remaining appeal issues
[48] The remaining issues raised by Mr Tucker’s appeal are:
(a) Did the Tribunal err in taking some of Mr Tucker’s communications into account, overlooking the right to freedom of expression in the New Zealand Bill of Rights Act 1990?22
(b)Did the Tribunal err in concluding that Mr Tucker’s conduct (taking into account this Court’s findings on the other appeal grounds) would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful?
(c) Did the Tribunal err in cancelling Mr Tucker’s real estate licence?
[49] It is not necessary for me to consider these issues in detail. Ms Pender accepted that overturning the Tribunal’s finding that Mr Tucker had sent the four offensive packages to Messrs Wills and Beard was likely to be critical to the overall
success of Mr Tucker’s appeal. That is because the essence of Mr Tucker’s argument
22 Section 14.
on appeal is that once the four packages are removed from the analysis, as well as Mr Tucker’s anonymous letters and his Facebook post (on the basis that they are protected free speech), then an insufficient evidential basis remains to support the Tribunal’s finding that his conduct was disgraceful. Further, if this evidence is excluded, Ms Pender submitted that cancellation of Mr Tucker’s real estate licence would be a disproportionate response.
[50] For the reasons outlined above, I have not been persuaded that the Tribunal erred in finding, on the balance of probabilities, that Mr Tucker sent the four offensive packages to Messrs Wills and Beard. Accordingly, even if I were to find that the various anonymous letters and the Facebook post should be disregarded, Mr Tucker’s remaining conduct is still well across the line of conduct that would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful. It cannot be credibly argued that cancellation of Mr Tucker’s licence is an unduly severe penalty for such serious conduct.
Freedom of expression
[51] In any event, I do not accept the argument that Mr Tucker’s anonymous correspondence or his Facebook post should be disregarded in the overall analysis. Mr Tucker’s right to freedom of expression does not extend to shield him from disciplinary findings for persistent, and largely anonymous, communications that were expressed in a manner that was intemperate and unprofessional.23
[52] A real estate licensee may, of course, express opinions and make complaints about others in the industry. Indeed, as Mr Hodge noted, there is a duty to report potential misconduct of other licensees to the Authority.24 It is one thing, however, to report alleged misconduct to the appropriate authorities, and quite another to embark on an anonymous campaign aimed at undermining or destroying the professional reputation of another licensee, including through dishonest means (such
as falsely purporting to be an interested purchaser in a property being marketed by
that licensee).
23 By way of analogy, see Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal
[2014] NZHC 1987, [2015] 2 NZLR 606 at [81]-[91]; and Doré v Barreau du Québec 2012 SCC
12, [2012] 2 SLR 395 at [65]-[69].
24 Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, r 7.
Was Mr Tucker’s conduct disgraceful?
[53] Section 73(a) of the Real Estate Agents Act 2008 provides:
73 Misconduct
For the purposes of this Act, a licensee is guilty of misconduct if the
licensee’s conduct–
(a) would reasonably be regarded by agents of good standing, or
reasonable members of the public, as disgraceful; …
[54] There is no need for any detailed discussion of the nuances of the meaning of the term “disgraceful”25 in this case. Mr Tucker’s conduct clearly falls well across the line of conduct that “would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful”. Indeed Ms Pender quite properly accepted that that would likely be the Court’s conclusion if the Tribunal’s finding that Mr Tucker was the sender of the four packages of sanitary pads and
condoms was not overturned.
Was cancellation of Mr Tucker’s licence the appropriate remedy?
[55] In the event that the Tribunal’s finding that Mr Tucker was the sender of the four offensive packages was overturned, then Ms Pender submitted that the penalty (cancellation of Mr Tucker’s licence) was disproportionate.
[56] I have concluded, however, that the Tribunal did not err in finding that Mr Tucker was the sender of those packages. Given that conclusion, cancellation of Mr Tucker’s licence was inevitable. Mr Tucker’s campaign was planned, persistent, vindictive and no doubt highly disturbing and distressing for those who were subjected to it. Mr Tucker’s overall course of conduct demonstrates a total lack of professional judgement. His response to what was essentially a commission dispute (presumably not uncommon in the real estate industry) was entirely disproportionate. Mr Tucker’s conduct was rightly regarded as being at the high end of misconduct,
and cancellation of his licence was the appropriate remedy.
25 For that discussion, however, see Complaints Assessment Committee (CAC 10024) v Downtown Apartments Ltd (in liq) Former Licensee [2010] NZREADT 6 at [55]-[61]; and Morton-Jones, above n 5, at [28]-[31].
[57] It is essential that real estate agents can be trusted to conduct themselves professionally when responding to stress and when managing disputes. As the Tribunal observed in Real Estate Agents Authority (CAC 10054) v Subritzky:26
[21] The nature of real estate work is, at times, stressful involving disputes and conflict in respect of transactions which are of great importance to the parties involved. Licensees must be able to be trusted to conduct themselves in a calm and professional manner at all times if consumer interests are to be promoted and protected.
…
[24] Licensees should be expected to conduct themselves professionally in the course of business, both while performing real estate agency work and otherwise. The recourse to personal abuse by the defendant was disgraceful.
[58] It is noteworthy that Mr Tucker’s campaign against Mr Wills (including the sending of the four packages of sanitary pads and condoms to Messrs Wills and Beard) continued after he was given a “second chance” by the District Court, which discharged him without conviction for sending the package of faeces to Mr Beard. It is a reasonable inference that Mr Tucker’s expressions of remorse at the time of his discharge without conviction were not genuine.
[59] Given the extremely persistent manner in which Mr Tucker pursued his grievances against Mr Wills and Custom Residential, there can be no assurance that he would not respond disproportionately to any future disputes that he might become involved in. This would put his fellow licensees, clients, and the public at risk. Cancellation of Mr Tucker’s licence was the only appropriate penalty in the circumstances.
Summary and conclusion
[60] Following a commission dispute with his employer, Custom Residential, Mr Tucker embarked on a sustained campaign of harassment against Custom Residential, its owner Mr Wills, and its lawyer Mr Beard. It was not in dispute on appeal that, at a minimum, this included:
(a) Sending a package containing faeces to Mr Beard through the post.
26 Real Estate Agents Authority (CAC 10054) v Subritzky [2012] NZREADT 19.
(b)Sending numerous anonymous letters to clients and employees of Custom Residential. Those letters made derogatory and offensive allegations about Mr Wills and Custom Residential.
(c) Leaving an offensive voice message on Mr Wills’ telephone.
[61] The Tribunal also found that Mr Tucker had sent four packages containing soiled sanitary pads and condoms to Messrs Wills and Beard, through the post. Mr Tucker challenged that finding on appeal. I have concluded, however, that there was ample evidence to support the Tribunal’s conclusion, on the balance of probabilities, that Mr Tucker was indeed the sender of the relevant packages. Of particular concern, these packages were sent after Mr Tucker had been discharged without conviction for sending Mr Beard the package containing faeces.
[62] Given Mr Tucker’s overall course of conduct, over a period of at least
18 months, the Tribunal was correct to find that he had pursued his dispute with Mr Wills and Custom Residential in a manner that “would reasonably be regarded by agents of good standing or reasonable members of the public, as disgraceful”. The only realistic penalty for conduct of such seriousness was cancellation of Mr Tucker’s real estate licence. The Tribunal did not err in imposing such a penalty.
Result
[63] The appeal is dismissed.
[64] The parties are encouraged to resolve any costs issues between counsel. Leave is reserved to file memoranda if costs cannot be agreed. Any memorandum on behalf of the respondent is to be filed by 23 August 2017. Any response from the
appellant is to be filed by 30 August 2017.
Katz J
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