Commissioner for Consumer Protection and Hawaii Pty Ltd and Anor

[2008] WASAT 22

COMMISSIONER FOR CONSUMER PROTECTION and HAWAII PTY LTD & ANOR [2008] WASAT 22

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 22
Act:	TRAVEL AGENTS ACT 1985 (WA)
Case No:	VR:169/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT) MS M CONNOR (MEMBER) MS M ELGAR (SESSIONAL MEMBER)	Delivered:	5/02/08
No of pages:	21	Judgment Part:	1 of 1
Result:	Respondent disqualified from involvement in a travel agency
Category:	B
PDF Version

Parties:	COMMISSIONER FOR CONSUMER PROTECTION HAWAII PTY LTD TRACY BURLING
Catchwords:	Travel agents ­ Disciplinary proceedings ­ Agent making numerous misstatements concerning travel insurance ­ Conduct occurring over period of months ­ False documents created ­ Appropriate penalty
Legislation:	Corporations (Western Australia) Act 1990, s 920 Criminal Code (WA), s 409 Travel Agents Act 1985 (WA), s 12(2), s 22
Case References:	Re a Barrister and Solicitor (1979) 40 FLR 1 Re A Practitioner; Ex Parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 Sober v Commercial and Private Agents Board (1979) 22 SASR 70 The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported, FCt Sct of WA; Library No. 970426; 26 August 1997
Orders	Pursuant to s 22(l)(e) of the Travel Agents Act 1985 (WA), Ms Tracy Burling is disqualified from being:,(i) a licensee;,(ii) concerned in the direction, management or conduct of the business of a travel agent; or,(iii) an officer of a body corporate that is a licensee ,for a period of 2 years from the date of this order.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : TRAVEL AGENTS ACT 1985 (WA) CITATION : COMMISSIONER FOR CONSUMER PROTECTION and HAWAII PTY LTD & ANOR [2008] WASAT 22 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)

MS M CONNOR (MEMBER)
MS M ELGAR (SESSIONAL MEMBER)

HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 FEBRUARY 2008 FILE NO/S : VR 169 of 2007 BETWEEN : COMMISSIONER FOR CONSUMER PROTECTION

Applicant

AND

HAWAII PTY LTD
TRACY BURLING
Respondent

Catchwords:

Travel agents ­ Disciplinary proceedings ­ Agent making numerous misstatements concerning travel insurance ­ Conduct occurring over period of months ­ False documents created ­ Appropriate penalty

Legislation:

Corporations (Western Australia) Act 1990, s 920

Criminal Code (WA), s 409
Travel Agents Act 1985 (WA), s 12(2), s 22

(Page 2)

Result:

Respondent disqualified from involvement in a travel agency

Category: B

Representation:

Counsel:

Applicant : Mr S Dworcan
Respondent : Ms C Tomich

Solicitors:

Applicant : Department for Consumer and Employment Protection
Respondent : Julienne Penny & Associates

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

Re a Barrister and Solicitor (1979) 40 FLR 1
Re A Practitioner; Ex Parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204
Sober v Commercial and Private Agents Board (1979) 22 SASR 70
The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported, FCt Sct of WA; Library No. 970426; 26 August 1997


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Commissioner for Consumer Protection brought proceedings against Hawaii Pty Ltd trading as Harvey World Travel (Scarborough) and Mr Tracy Burling, a former director of Hawaii. The proceedings concerned a number of misleading statements made, and documents created, by Ms Burling in relation to travel insurance for a client. The client paid the premium, but contrary to what Ms Burling told her client, insurance was never obtained. When the client sought to make a claim, Ms Burling embarked upon a series of lies and deceptions to cover for her mistake. Eventually the true position came to light. Ms Burling admitted 23 allegations made against her in the proceedings.

2 After examining the facts, the Tribunal concluded that the seriousness of the matter warranted disqualification of Ms Burling from involvement in a travel agency business for a period of two years.

The issue for determination

3 Hawaii Pty Ltd (Hawaii) is the holder of travel agent licence number 9TA687. Under that licence Hawaii carries on a travel agency business named "Harvey World Travel (Scarborough)" as an independent franchisee of the Harvey World Travel group.

4 The second respondent, Ms Tracy Burling, was the managing director and secretary of Hawaii. She is not, herself, a licensee. The Commissioner for Consumer Protection brought these proceedings against both Hawaii and Ms Burling. Hawaii's liability in these proceedings arose as a result of the conduct engaged in by Ms Burling. Ms Burling is no longer a director of Hawaii or otherwise involved with its business. Through mediation conducted on behalf of Hawaii by its current directors, the Commissioner and Hawaii settled the proceedings between themselves, and Hawaii was reprimanded, fined $1,000, and ordered to pay costs of $500. Hawaii also undertook not to employ Ms Burling in its travel agency business for a period of 2 years. The proceedings against Ms Burling were not resolved. Ms Burling has admitted all 23 allegations contained in the applicant's application and the issue for determination is the penalty that should apply.

The legal framework

5 Section 22(1) of the Travel Agents Act 1985 (WA)(TA Act) provides:

(Page 4)

"If the State Administrative Tribunal, on dealing with any allegation under section 21(5), is satisfied that any ground for a belief referred to in section 21(4) has been made out, it may

(a) reprimand the licensee;

(b) impose on the licensee a fine not exceeding $1,000 payable within a specified time;

(c) require the licensee to comply within a specified time with a requirement specified by the Tribunal;

(d) suspend the licence for a period not exceeding 12 months;

(e) disqualify the licensee or any person concerned in the direction, management or conduct of the business of the licensee from being —


(i) a licensee;

(ii) concerned in the direction, management or conduct of the business of a travel agent; or

(iii) an officer of a body corporate that is a licensee,

either permanently or for such period as the Tribunal thinks fit;


(f) order the imposition of a condition to which the licence shall be subject or vary or revoke —

(i) such a condition; or

(ii) a condition imposed under section 13(1); or


(g) cancel the licence,

or take any 2 or more of the courses of action described in paragraphs (a) to (g)."

6 Section 21(5) of the Act provides:

"If the Commissioner decides that it is appropriate to do so, the Commissioner may make an allegation to the State Administrative Tribunal that there are reasonable grounds for a belief described in

(Page 5)

subsection (4) concerning a specified licensee."

7 The applicant relies on s 21(4)(e). That section provides:

"The Commissioner may, on receiving a complaint under subsection (1) or on the Commissioner's own initiative, make any investigation or inquiry that the Commissioner considers necessary to decide whether there are grounds for believing that -

(e) if the person were not the holder of a licence, the Commissioner would be required by section 12(2) or (4) to refuse an application by the person for a licence."

8 Section 12(2) of the Act relevantly provides:

"An application made by an individual shall be refused if it appears to the Commissioner that -

(d) the individual is not a person likely to carry on business honestly and fairly under the authority that would be conferred by the relevant licence if it were granted.

…

(g) the individual is in any other way not a fit and proper person to be holder of a licence." [emphasis added]

The conduct

9 The facts relied upon by the Commissioner are recited in detail in his submissions on penalty, and are not disputed by Ms Burling. We therefore accept the facts asserted which we set out below. The conduct the subject of all allegations occurred in connection with Ms Burling's dealings with Nicole Fakaua, her husband and three children. Mrs Fakaua's family travelled overseas for a period of 12 months. They departed Perth on 12 March 2005 and returned to Perth on 12 March 2006.

(Page 6)

Allegation 1

10 Ms Burling has admitted that in about early March 2005, she falsely and/or misleadingly represented to Mrs Fakaua that Hawaii was an authorised agent of HBF Insurance Pty Ltd (HBF)so far as the arranging of travel insurance was concerned.

11 The facts relevant to this admission are as follows.

12 In about early 2005, Mrs Fakaua booked through Ms Burling, who was acting on behalf of Hawaii, overseas airfares for her, her husband and three children.

13 On about 3 March 2005, Mrs Fakaua attended at the agency. She met with Ms Burling who suggested to her that she consider taking out travel insurance with HBF. Mrs Fakaua said that she had not heard of HBF and Ms Burling gave her an application form for HBF travel insurance coverage to complete.

14 Sometime between 3 and 11 March 2005, Ms Burling, in Mrs Fakaua's absence, obtained an HBF online travel insurance quote for Mrs Fakaua and her family. She had superimposed on the quote inter alia the names and dates of birth of the Fakaua family members.

15 As Mrs Fakaua's daughter, MacKenzie, had asthma and an allergy to peanuts, in order to obtain travel insurance with HBF it was necessary for MacKenzie to have a medical appraisal. That was done on 4 March 2005 at the Mill Street, Medical Practice. The HBF Medical Appraisal forms were completed at that time.

16 On about 11 March 2005, Mrs Fakaua gave the completed HBF application form and medical appraisal form to Ms Burling who, in turn, gave Mrs Fakaua an HBF travel insurance booklet with the quote attached to it. Mrs Fakaua paid $12,243.95 being $10,168.95 for airfares and $2,075.11 for the HBF policy. She paid by credit cards and cash.

17 Mrs Fakaua understood the booklet with attached quote to be her travel insurance documents. Significantly, she asked Ms Burling why there was no policy number on it to which Ms Burling replied that HBF work with surnames not policy numbers.

18 Ms Burling told Mrs Fakaua that if she had any medical problems overseas, she should contact HBF.

(Page 7)

19 Although Ms Burling never expressly stated that Hawaii was an authorised representative of HBF, that representation was clearly implied from her conduct and surrounding circumstances as outlined above.

20 Neither Hawaii nor Ms Burling was an authorised representative of HBF. They had no legal entitlement to sell travel insurance and collect insurance premiums on behalf of HBF. Ms Burling knew that.

Allegation 2

21 Ms Burling has admitted that in about March 2005, she negligently failed to obtain travel insurance coverage in favour of Mrs Fakaua and her family.

22 Mrs Fakaua's family did not have a policy of insurance in place for the 12 months they were overseas on holiday.

23 As it transpires, Mrs Fakaua's family had $1,350 worth of insurance claims for 7 medical consultations, medication and lost luggage incurred during the holiday.

24 Ms Burling's omission in not ensuring that Mrs Fakaua's family had travel insurance coverage could have had enormous ramifications, particularly given the lengthy duration of the holiday. Ms Burling exposed Mrs Fakaua and her family to considerable personal and financial risk. A significant medical problem could have resulted in substantial financial loss for the Fakauas.

25 It was not contended by the Commissioner that Ms Burling deliberately omitted to take out insurance for the Fakaua family. It was submitted that she was negligent in failing to do so.

Allegation 3

26 Ms Burling has admitted that in a telephone conversation with Mrs Fakaua on 27 March 2006, Ms Burling provided a fictitious policy number for a non-existent HBF travel insurance policy.

27 The facts relevant to this admission are as follows.

28 Mrs Fakaua returned from her holiday on 12 March 2006. Within the first 2 weeks of her return, Mrs Fakaua sent a detailed report to HBF, which included receipts for claimable expenses incurred overseas.

29 Several days after submitting the report, Mrs Fakaua received a telephone call from "Rebecca" of HBF. Rebecca requested Mrs Fakaua's policy number. Mrs Fakaua informed Rebecca that she was not given a policy number by

(Page 8)

her travel agent but rather informed that HBF worked on a last name basis. Rebecca could not find any reference on HBF's system to "Fakaua". Rebecca suggested that Mrs Fakaua obtain the policy number from her travel agent.

30 On 27 March 2006, Mrs Fakaua telephoned Ms Burling. She asked for a policy number and was told by Ms Burling that it was 05A16391.

31 Mrs Fakaua then telephoned Rebecca at HBF and provided her with that policy number. She was informed that that was not an HBF policy number.

32 The policy number given by Ms Burling was not a policy number for any policy of travel insurance for Mrs Fakaua and her family. Ms Burling invented the number.

Allegation 4

33 Ms Burling has admitted that during a telephone conversation with Mrs Fakaua on about 3 April 2006, Ms Burling falsely and/or misleadingly represented that her contact at HBF had had no problem finding Mrs Fakaua's information on HBF's system.

34 The facts relevant to this admission are as follows.

35 Later, on 27 March 2006, Mrs Fakaua telephoned Ms Burling to inform her that Rebecca from HBF has said that the policy number 05A16391 was not an HBF policy number. Ms Burling said that she would fax to Rebecca at HBF all Mrs Fakaua's documentation.

36 On 29 March 2006, Mrs Fakaua received a telephone call from Rebecca of HBF. Rebecca asked how Mrs Fakaua was going with making inquiries of her travel agent. Mrs Fakaua informed Rebecca that Rebecca should have received by then a facsimile from Ms Burling. Rebecca said that she had not.

37 Later that day, Mrs Fakaua telephoned Ms Burling to discuss the matter. She said to Mrs Fakaua that she had faxed all the documents to Rebecca on 27 March 2006 and said that she would speak to Rebecca.

38 On 3 April 2006, Mrs Fakaua telephoned Ms Burling who said that she was going to deal with "her representative" because she had been unable to reach Rebecca.

(Page 9)

39 On 6 April 2006, Mrs Fakaua again telephoned Ms Burling who said words to the effect that her representative had had no problem finding Mrs Fakaua's family on HBF's system and she did not know what Rebecca had been going on about.

40 The statement referred to above was deliberately false and misled Mrs Fakaua. Ms Burling did not have a representative at HBF that had found Mrs Fakaua's information. Moreover, there could not have been any reference to Mrs Fakaua and her family on any travel insurer's system as no policy existed.

Allegation 5

41 Ms Burling has admitted that during a telephone conversation with Mrs Fakaua on about 26 April 2006, she falsely and/or misleadingly represented that she had been informed by HBF that everything looked standard so there should be no problem with the travel insurance coverage.

42 The facts relevant to this admission are as follows.

43 Between 7 and 24 April 2006, Mrs Fakaua became increasingly concerned about HBF's inability to find any record of her family on that organisation's system. On about 23 April 2006, Mrs Fakaua received a letter from HBF stating that they could do nothing further about the matter without a policy number and returning all of Mrs Fakaua's original travel insurance documents (that Mrs Fakaua had sent to HBF in March 2006).

44 Mrs Fakaua called Hawaii to discuss the matter on 14, 19 and 24 April 2006. Ms Burling was on holiday at the time. Other staff members of Hawaii were unable to assist Mrs Fakaua.

45 On 24 April 2006, Mrs Fakaua again telephoned Hawaii. She spoke with Ms Burling who said that her sister had mentioned that Mrs Fakaua was "freaking out a bit about the insurance coverage". She said that she had just talked to her representative and that the representative was going to get back to her in a few days with good news. She said further that her representative would not require the original documentation, everything looked standard and there should be no problem with the coverage.

46 All the statements about the representative referred to above were deliberately false and misled Mrs Fakaua. The second respondent had not been in contact with any representative at HBF. The situation was anything but "standard" and no coverage existed.

(Page 10)

Allegation 6

47 Ms Burling has admitted that during a telephone conversation with Mrs Fakaua on about 28 April 2006, she falsely and/or misleadingly represented that HBF would shortly be sending a cheque for the whole amount of the travel insurance claim made by Mrs Fakaua.

48 The facts relevant to this admission are that on about 28 April 2006, Mrs Fakaua telephoned Ms Burling to find out if there had been any developments. Ms Burling told Mrs Fakaua that everything was okay and that they were going to send a cheque in payment of Mrs Fakaua's claim. She said that "they were just quarrelling over a single $12.00 item" but Mrs Fakaua could expect the cheque in the mail. Mrs Fakaua understood the references to "they" to mean HBF.

49 The statements were deliberately false and misled Mrs Fakaua. There could not have been any quarrelling with HBF over a $12 item and Mrs Fakaua would not be receiving a cheque from HBF as no policy existed.

Allegation 7

50 It is further admitted that during a telephone conversation with Mrs Fakaua on about 18 May 2006, she falsely and/or misleadingly represented that a cheque from the travel insurer had arrived at Harvey World Travel Scarborough.

51 The statement was deliberately false and misled Mrs Fakaua. No cheque had been received from any travel insurer.

Allegation 8

52 Ms Burling has admitted that during the telephone conversation referred to above, she falsely and/or misleadingly represented that the cheque that had arrived from the travel insurer had been posted by the first respondent and/or second respondent to Mrs Fakaua the previous day.

53 The statement was deliberately false and misled Mrs Fakaua. Neither Hawaii nor Ms Burling sent any cheque to Mrs Fakaua. As the cheque had not arrived at Mrs Fakaua's residence by 22 May 2006, Mrs Fakaua attended at an HBF office that day. She spent over an hour with an HBF staff member named Rosemary Milliken to ascertain whether a cheque had been sent by HBF. Ms Milliken conducted an exhaustive search of HBF's records. Ms Milliken informed Mrs Fakaua that no cheque could have been issued by HBF in circumstances where there was no record

(Page 11)

of Mrs Fakaua on HBF's system.

Allegations 9 and 11

54 Ms Burling has admitted that at meeting with Mrs Fakaua on about 22 May 2006, she gave her a cheque and a letter dated 17 May 2006 which falsely and/or misleadingly represented that Harvey World Travel Insurance or Harvey World Insurance had provided a payment to Mrs Fakaua in the sum of $1,350 (admission 9). She has also admitted that the letter also falsely and/or misleadingly represented that Hawaii owned and operated the travel insurance business that was paying out the claim (admission 11).

55 The facts relevant to these admissions are as follows.

56 At a meeting on 22 May 2006 at Hawaii's business premises, Ms Burling gave Mrs Fakaua a letter dated 17 May 2006. The letterhead has the following features:

• Underneath the "Harvey" logo at the top of the letter appear the words "Harvey World Travel Insurance Services" [sic].

• The second respondent's signature appears above the words "Harvey World Travel Insurance"; and

• At the bottom of the letter appear the words "independently owned and operated by Hawaii Pty Ltd …".

57 There has never been a company or registered business in WA named "Harvey World Travel Insurance Services". At the material time there was (and still is) a company named "Harvey World Insurance Services Pty Ltd" (HWIS). Neither Hawaii, nor Ms Burling, has ever had a proprietary interest in HWIS. Neither of them had the authority to sign or send a letter on behalf of HWIS.

58 Ms Burling manufactured the letter to appear as if HWIS or another similarly named insurance company or business had paid out Mrs Fakaua's claim for $1,350.

59 The cheque for $1,350 is a cheque from Hawaii signed by Ms Burling.

(Page 12)

60 It is apparent that Ms Burling went to some effort to create a false document as is evident by her changing of the letterhead. Her conduct was calculated and deceitful.

61 The second respondent was prepared to pass herself and/or the first respondent off as having a legal interest in HWIS. HWIS was of course completely unaware of that conduct and would never have condoned it.

Allegation 10

62 The tenth allegation against Ms Burling is that the provision of the cheque for $1,350 to Mrs Fakaua at the meeting on 22 May 2006 as referred to above was done with the intention of depriving Mrs Fakaua of the balance of her travel insurance premium of $725 and accordingly, constituted fraud for the purposes of s 409 of the Criminal Code (WA).

63 The Tribunal directed that the question of penalty should be dealt with on the papers on the basis that the allegations were all admitted. However, in written submissions filed on Ms Burling's behalf, it was submitted that Ms Burling "did not and never intended to defraud any person". That submission is obviously inconsistent with the admission that had earlier been made to the Tribunal.

64 In the circumstances, the Tribunal makes no finding as to whether Ms Burling's conduct constituted an offence as alleged or at all. It is sufficient to find, as we do, that the payment of a cheque for $1350 to Mrs Fakaua was on the basis that there would be no refund of the premium, and thus that Hawaii, or whoever received the cheque for the premium, was still $725 ahead. Regardless of its possible criminality, Ms Burling's conduct was particularly serious.

65 Ultimately, Mrs Fakaua received a full refund. The fact that Mrs Fakaua did not suffer any loss is attributable solely to her persistence in pursuing the matter through the making of further inquiries. Had Mrs Fakaua simply accepted the cheque for $1,350 and not made further inquiries, which was apparently Ms Burling's intention, Mrs Fakaua would have lost $725.

Allegation 12

66 The twelfth allegation admitted by Ms Burling is that at the meeting with Mrs Fakaua on about 22 May 2006, she falsely and/or misleadingly represented to Mrs Fakaua that her travel insurance had been transferred from HBF to Harvey World Travel Insurance or Harvey World Insurance.

(Page 13)

67 When questioned by Mrs Fakaua at the meeting on 22 May 2006 about why the covering letter to the cheque was from HWIS, Ms Burling said words similar to:

"Ok, I need to tell you that when you left for Thailand HBF rejected your application because of your daughter's peanut allergy so I transferred you over to Harvey World Travel Insurance because we cover for the nut allergy."

68 By this statement, Ms Burling told two lies. HBF had never rejected Mrs Fakaua's application. It could not have done so as Ms Burling never submitted the application. Further, she never transferred Mrs Fakaua insurance to HWIS or any other insurer. The second respondent used Mrs Fakaua's daughter's nut allergy as an excuse for what was her negligence.

69 The meeting on 22 May 2006 presented Ms Burling with the perfect opportunity to truthfully tell Mrs Fakaua what had transpired with her insurance. When confronted by Mrs Fakaua about the name on the letter, Ms Burling should have told her that insurance had never been placed due to inadvertence. Instead the way in which she chose to deal with the matter was to tell further lies.

Allegation 13

70 Ms Burling has admitted that on 22 May 2006, in an email to Shane Edwards of Harvey World Travel Franchises Pty Ltd (being Hawaii's franchisor), Ms Burling falsely and/or misleadingly represented that she had issued a manual travel insurance policy with Harvey World Travel Insurance or Harvey World Insurance in favour of Mrs Fakaua on about 12 March 2005.

71 The facts relevant to this admission are as follows.

72 On about 22 May 2006, Mrs Fakaua attended at the Harvey World Travel State Administration office in Osborne Park to discuss the difficulties she was having in getting information from Ms Burling about Mrs Fakaua's travel insurance. There she met with Mr Edwards, Development Manager for Harvey World Travel Franchises Pty Ltd.

73 At that meeting, Mrs Fakaua gave Mr Edwards copies of relevant documents, including the Quote, covering letter to the cheque given to her by Ms Burling earlier that day and the cheque itself.

(Page 14)

74 Mr Edwards telephoned the offices of HWIS to discuss the policy number on the Quote. HWIS informed Mr Edwards that the policy number on the Quote appeared to be missing a series of numbers.

75 Mr Edwards then telephoned Ms Burling to discuss the matter. He told her that HWIS had informed him that the policy number on the Quote was not one that belonged to HWIS. Ms Burling then replied "Well whose is it then?", despite knowing full well that there could not have been any policy number as no insurance was taken out on Mrs Fakaua's behalf. She told Mr Edwards that she would review her file and come back to him.

76 Later that day, Ms Burling sent an email to Mr Edwards explaining the situation and the following morning Mr Edwards replied to that email:

77 In her email to Mr Edwards of 22 May 2006, she said that:

"As it was Saturday (12 March 2005), I issued a manual policy with HWT (Harvey World Travel) Insurance so that they would be covered. On Monday (14 March 2005), I contacted Sue at Insurance services to see if there was any way they could match the HBF policy … Sue advised to issue two separate policies … When Mrs Fakaua returned to Australia, she advised that she had sent a claim to HBF but they had no record of her policy. When I looked into the file, I realised that I had never issued the policy in the system as advised by Sue to do so … I misled (Mrs Fakaua) into believing that HBF had done the insurance and only admitted today that it was actually with HWT Insurance … I will send her a check (sic) for the difference in her claim payment and what she paid for the insurance."

78 Ms Burling had never placed a manual policy with HWIS.

79 Although Ms Burling reimbursed Mrs Fakaua the difference between the insurance premium and the total of her claims, this was only done on 10 July 2006 (over 7 weeks after she told Mr Edwards she would do so), and only after considerable further pressure had been placed on her by Mrs Fakaua and Mr Edwards to explain what had happened with the insurance policy.

Allegations 14 and 15

80 Ms Burling has also admitted that on 22 May 2006, she provided Mr Edwards by email with a travel insurance policy dated 12 March 2005 which had been created by her in about March 2006. The provision of this policy

(Page 15)

falsely and/or misleadingly represented that a travel insurance policy was in place for Mrs Fakaua from about March 2005 (admission 14). It is admitted that on 23 May 2006, she sent Mrs Fakaua a fax containing a copy of the travel insurance policy referred to in paragraph 55 above dated 12 March 2005. By doing so, she falsely and/or misleadingly represented that Mrs Fakaua had travel insurance coverage in place from about March 2005 (admission 15).

81 On 22 May 2006, Ms Burling faxed (not emailed) to Mr Edwards a copy of a travel insurance policy for Mrs Fakaua dated 12 March 2005. As a result of a demand from Mrs Fakaua on 22 May 2006 for proof of insurance, she sent Mrs Fakaua a fax containing the travel insurance policy the following day.

82 Although, the travel insurance policy does not identify the insurer, given the contents of the email of 22 May 2006 to Mr Edwards and Ms Burling's meeting with Mrs Fakaua that same day, the representation made in each case was that it was an HWIS insurance policy.

83 Ms Burling did not complete the travel insurance policy on 12 March 2005 but rather some time between 27 March 2006 (ie after Mrs Fakaua returned from holiday and contacted her about her insurance policy) and 22 May 2006.

84 The apparent purpose of manufacturing the travel insurance policy was to further deceive Mr Edwards and Mrs Fakaua and avoid being held responsible for allowing Mrs Fakaua and her family to travel overseas for 12 months with no insurance coverage.

85 The fabrication of that document is an obviously serious matter.

Allegations 16 and 17

87 It is further admitted that on 16 June 2006, in response to a request (from Mr Edwards) for proof that a travel insurance policy had been put in place for Mrs Fakaua, Ms Burling sent Mr Edwards a fax containing a copy of a "tax invoice/adjustment monthly return salary pad" dated 5 April 2005. This document was created in about June 2006. By sending a copy of this document to Mr Edwards, Ms Burling falsely and/or misleadingly represented that an application had been made for travel insurance for Mrs Fakaua on about 5 April 2005 (admission 16).

(Page 16)

88 Ms Burling has admitted that the fax that she sent to Mr Edwards on 16 June 2006 above also contained a copy of a cheque dated 5 April 2005 from Hawaii to "HWT Insurance Services". The amount of the cheque was $1,603.80, being the travel insurance premium paid by Mrs Fakaua, less commission retained by Hawaii. This cheque was created in about June 2006. By sending a copy of the cheque to Mr Edwards, Ms Burling falsely and/or misleadingly represented that Hawaii had paid money on behalf of Mrs Fakaua to Harvey World Insurance for a travel insurance policy in about April 2005 (admission 17).

89 After writing out the cheque for $1,603.80, Ms Burling photocopied it solely to send a copy of it to Mr Edwards and then tore up the original cheque. This demonstrates the extraordinary lengths that Ms Burling was prepared to go to deceive other persons.

Allegation 18

90 Ms Burling has admitted that on about 16 June 2006, she falsely and/or misleadingly represented to Mr Edwards in a telephone conversation that Hawaii's accountant had gone through "archived files and found that the cheque to Harvey World Insurance had not been presented and that the accountant should have advised the office that the cheque had not been processed." She also falsely and/or misleading represented in that telephone conversation that the accountant would be providing a letter to Mr Edwards admitting his failure.

91 As the Commissioner observed, a significant aspect of this admission is that Ms Burling was prepared to, and did, implicate her accountant and blame him for purported errors in an attempt to cover up her previous conduct. The accountant had not made any errors at all.

Allegation 19

92 The nineteenth allegation admitted by Ms Burling is that on about 28 June 2006, she sent a letter to Mr Edwards of the same date which falsely and/or misleadingly represented that she had faxed to HBF in about March 2005 the travel insurance application form and medical information form for Mrs Fakaua and her family.

93 Neither Ms Burling, nor anyone on her behalf or on behalf of Hawaii, sent to HBF the application form and medical information form. Ms Burling knew that.

(Page 17)

Allegation 20

94 Ms Burling has admitted that by the letter of 28 June 2006 she falsely and/or misleadingly represented that she had issued a manual policy with an insurance company on about 11 March 2005 to cover Mrs Fakaua and her family until she had time to issue the electronic copy on about 14 March 2005.

95 This was a repetition of the representation made on 22 May 2006 and the subject of allegation 13.

Allegation 21

96 The next admitted allegation is that by the letter of 28 June 2006, Ms Burling falsely and/or misleadingly represented that she had sent the "sales return" to the "insurance company" by the end of March 2005.

97 Again, this was a case of repeating an earlier false and misleading representation which is the subject of allegation 16.

Allegation 22

98 It is admitted that by letter dated 16 July 2006, Ms Burling falsely and/or misleadingly represented to Mr and Mrs Fakaua that she had faxed to HBF in March 2005 the travel insurance application form and medical information form that applied to them.

99 Even at this late stage (and having already reimbursed Mrs Fakaua the difference between her insurance premium and total of her claims), Ms Burling continued to seek to cover the truth in correspondence. Despite making two statements in her letter to the effect, there was no manual policy whatsoever.

Admission 23

100 Finally, Ms Burling has admitted that she knowingly caused Mrs Fakaua, Mr Edwards, HBF staff and other people to spend time and effort investigating the travel insurance for Mrs Fakaua and her family in circumstances where she knew that those inquiries would amount to nothing.

101 Mrs Fakaua, Mr Edwards, HBF staff and other people such as HWIS staff went to considerable lengths to get to the bottom of this matter – a process that took several months. The second respondent could have put an end to that at any time but instead allowed it to go on until such time as she could no longer cover up the matter.

(Page 18)

Other matters

102 In June 2007, the second respondent was made the subject of a banning order by ASIC under s 920A and s 920B of the Corporations (Western Australia) Act 1990. That banning order prevents the second respondent from providing any financial services for a period of 12 months.

Penalty

103 The purpose of disciplinary proceedings is the protection of the public by maintaining the integrity of a profession. It is not intended to be punitive even though the disciplinary action may involve significant penalty to the person disciplined: Re a Barrister and Solicitor (1979) 40 FLR 1 at 24-25 approved by the Full Court of the Supreme Court of Western Australia in Re A Practitioner; Ex Parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 at [6] and [7].

104 Ms Burling engaged in a deceitful course of conduct that involved numerous deliberate misrepresentations to several people and the falsification of various documents.

105 The conduct occurred over a significant period of time, namely 27 March to 16 July 2006.

106 We accept the Commissioner's submission that Ms Burling appears not to have a true insight into her conduct. In her submissions she describes her conduct as "negligence" and an attempt to cover that negligence. That submission grossly understates the gravity of her ongoing attempts to deceive.

107 Ms Burling had numerous opportunities between March and July 2006 to admit her conduct. Instead she chose to continue her lie until it was simply not possible to do so any longer.

108 We agree with the Commissioner's submission that Ms Burling's admission of the 23 allegations should attract little, if any, discount in terms of penalty because the admissions were made in the face of overwhelming documentary and other evidence; notwithstanding the admissions, Ms Burling does not have a true understanding of the seriousness of her wrongdoing and its impact on other persons; and the purpose of the order ultimately made by the Tribunal is not to punish the respondent but to preserve the integrity of the profession.

(Page 19)

109 Having regard to s 12(2) of the Act, the applicant submits that it is evident from the conduct engaged in by Ms Burling, that if she were to apply for a travel agent's licence, the applicant would be required to refuse that application as she is not likely to carry on business honestly and fairly under that licence; and/or she is otherwise not a fit and proper person to be holder of such a licence.

110 So far as the fitness limb of s 12(2) of the Act is concerned, the applicant refers to the following statement of Walters J in Sober v Commercial and Private Agents Board(1979) 22 SASR 70 at 76 (approved by Kennedy J in The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported, FCt Sct of WA; Library No. 970426; 26 August 1997):

"The issue whether an appellant has shown himself to be a 'fit and proper person', within the meaning of s 16(1) of the [Commercial and Private Agents Act], is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safety accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442)" [emphasis added]

111 We consider that Ms Burling's conduct, taken as a whole, demonstrates an unfitness in the sense described.

112 It is necessary that a penalty be imposed which will demonstrate that conduct of this nature is entirely unacceptable within the travel industry, and to ensure that those engaged in the conduct of the business of travel agent are deterred from such conduct. Disqualification under s 22(l)(e) of the TA Act achieves that objective.

113 Ms Burling argued against disqualification on the ground that her present occupation is as an officer of a corporation obtaining wholesale hotel accommodation for travel agents, with no direct dealing with the public or consumers. Her work is said to be subject to supervision.

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114 While that may be Ms Burling's present position, in the absence of an order for disqualification, there is nothing to prevent her returning to retail travel agency work. Apart from that, matters personal to a respondent must take second place to the public interest in meeting the proper objectives of professional disciplinary penalties.

115 The penalty suggested by counsel for Ms Burling was a reprimand under s 22(1)(a) and a fine under s 22(1)(b). That submission ignores the obvious fact that those penalties can only be imposed against a licensee, which Ms Burling is not. The only penalty available against a non-licensed person concerned in the direction, management or conduct of a travel agent's business is disqualification under s 22(1)(e).

116 The Commissioner submitted that pursuant to s 22(1)(e) of the Act, an order should be made against Ms Burling disqualifying her from being:

• a licensee;

• concerned in the direction, management or conduct of the business of a travel agent; or

• an officer of a body corporate that is a licensee,

for a period of 2 years from the date of this order.

117 We agree that such an order should be made, but in view of the prolonged deceitful nature of the conduct, we consider that the period of disqualification should be 2 years. There will be orders accordingly.

Orders

118 Pursuant to s 22(l)(e) of the Travel Agents Act 1985 (WA), Ms Tracy Burling is disqualified from being:

(i) a licensee;

(ii) concerned in the direction, management or conduct of the business of a travel agent; or

(iii) an officer of a body corporate that is a licensee

for a period of 2 years from the date of this order.

I certify that this and the preceding [118] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT