Commissioner for Consumer Affairs v Marley-Duncan
[2019] SADC 154
•28 October 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application)
COMMISSIONER FOR CONSUMER AFFAIRS v MARLEY-DUNCAN
[2019] SADC 154
Reasons for Decision of His Honour Judge Slattery
28 October 2019
ADMINISTRATIVE LAW
Disciplinary proceedings brought under s 43 of the Land Agents Act 1994. Land agent said to be liable to disciplinary proceedings by improper conduct and to not be a fit and proper person to be an agent.
Held:
Each particular of improper conduct is found to be proven beyond reasonable doubt.
1. The defendant is reprimanded.
2. The defendant is fined the sum of $7,500.
3. Conditions are imposed upon the defendant's registration as an agent including a requirement to complete a training course.
4. The defendant is prohibited from operating as a licenced land agent for a period of six months.
5. The defendant is prohibited from being the director of any company which is a corporate agent for a period of six months.
6. The court will hear the parties as to consequential and other orders.
Land Agents Act 1994 (SA) ss 3, 4, 8, 43, 44; South Australian Civil and Administrative Tribunal Act 2013 (SA), referred to.
R v Byrnes & Hopwood (1995) 183 CLR 501; Sobey v Commercial & Private Agents Board (1979) 22 SASR 70; Craig v The Medical Board of South Australia (2001) 79 SASR 545, applied.
Briginshaw v Briginshaw (1938) 60 CLR 336, not followed.
R v Teachers Appeal Board; Ex-parte Bilney (1984) 35 SASR 492; O’Connell v Palmer (1994) 53 FCR 429; Health Care Complaints Commission v Jiang [2018] NSWCATOD 78; A Solicitor v Counsel of the Law Society of New South Wales (2004) 216 CLR 253; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279; Hoile v Medical Board (SA) (1960) 104 CLR 157, considered.
COMMISSIONER FOR CONSUMER AFFAIRS v MARLEY-DUNCAN
[2019] SADC 154The Complaint
By a third Complaint dated 19 October 2018, the Commissioner for Consumer Affairs (‘the Commissioner’) makes a complaint pursuant to s 43 of the Land Agents Act 1994 (SA) (‘the Act’) alleging that there is proper cause for disciplinary action against the defendant, Hayley Marley-Duncan (‘Duncan’).
The Complaint provides as follows:
LET:
HAYLEY MARLEY-DUNCAN of 9A Adelaide Road, Gawler
within 14 days after the service of this summons on them cause a notice of an address for service to be filed for her to this summons which is issued on the complaint of the COMMISSIONER FOR CONSUMER AFFAIRS of 95 Grenfell Street, Adelaide, in the State of South Australia, pursuant to s 43 of the Land Agents Act 1995, that there is proper cause for disciplinary action against the defendant as particularised below.
1. Conduct at SACAT Hearing before Member Stevens
1.1 At all material times the defendant was licensed as a land agent (RLA 203925) and co-director of Marley Duncan Pty Ltd trading as Marley Duncan Real Estate (ACN 119 755 690), a registered land agent (RLA 198802).
1.1A At all material times, the defendant was the natural person registered land agent responsible for properly managing and supervising the business of the body corporate agent Marley Duncan Real Estate.
1.2 On 16 July 2015, the defendant appeared by telephone on behalf of a landlord at a hearing conducted in the South Australian Civil and Administrative Tribunal (SACAT) before SACAT Member Mark Stevens, regarding a tenancy dispute in SACAT Case Number 2016/SH002454.
1.3 The defendant repeatedly talked over Mr Stevens, who ultimately terminated the call due to the defendant’s offensive and abusive behaviour towards the Tribunal.
2. Conduct towards Members of the Profession
2.1 On 11 December 2015, the defendant forwarded email correspondence between herself and real estate agent Greg Bolto of Harcourts Property People to an Investigator of Consumer & Business Services (CBS). In that email exchange, the defendant called Mr Bolto a “moron” and threatened to make the emails public.
2.2 In an email dated 10 December 2015 to Mr Greg Bolto, the defendant stated:
2.2.1 “WEREN’T you on the REI board ?? NOW THAT WOULD EXPLAIN A LOT. Bunch of idiots WHO don’t know how to do there (sic) JOBS!
2.2.2 SO again you are appointed UNTIL THE COMPLETION OF THIS TENANCY YOU MORON so DO YOUR JOB !!!! FFS IT IS NOT HARD !!!!!
2.2.3 I may just make these emails PUBLIC to show JUST HOW PATHETIC you are as an AGENCY !!!!”
2.3 The Real Estate Code of Conduct published by the Real Estate Institute of South Australia (REISA) provides that a real estate practitioner should not make, authorise or encourage any derogatory, disparaging or unfounded comments concerning the practices of another practitioner.
3. Conduct at SACAT hearing before Presiding Member Steven Thomas
3.1 In May 2016, the defendant appeared by telephone on behalf of a landlord at a SACAT hearing before Member Steven Thomas regarding a tenancy dispute in SACAT Case Number 2016/SH004910.
3.2 During the hearing, the defendant made several personal insults against the tenant including her status as a single mother and welfare recipient, including the following statement:
3.2.1 “…with the house still looking like a pigsty because Centrelink dweller there can’t even afford a skip bin”.
3.3 The defendant also rudely questioned the competence of SACAT Member Thomas by making the following statements:
3.3.1 “Well guess what, I am rude, because you know what – I can’t tolerate incompetence.”
3.3.2 “Go get the head honcho, I don’t know where they got you from but clearly you don’t know your job…”
3.4 The defendant persistently interrupted Member Thomas despite his repeated requests for the defendant to be quiet and let him speak. When Mr Thomas attempted to address the defendant in relation to conducting herself properly on the phone, the defendant interrupted and stated:
3.4.1 “You know what, don’t even go there. If you did your job properly, I wouldn’t be enraged in this anger would I? So it’s not much to ask for you to do your job with my tax money which I’m fucking paying for.”
3.5 Member Thomas subsequently terminated the call.
4. Email Correspondence to SACAT
4.1 On 25 May 2016, the defendant emailed SACAT and other recipients complaining about a hearing which had taken place at SACAT that morning regarding a tenant at 37 Mulga Street, Gawler West. The emails were sent at 12:08PM, 12:12PM, 12:15PM, 12:16PM, 12:18PM, 3:35PM and 5:09PM. In the email sent at 12:08PM, the defendant stated:
4.1.1 “I WANT THE RECORDING AND THE TRANSCRIPTS TO BOTH OF THESE HEARING ASAP!!!!! AND I WANT THEM ASAP!!!! ACTUALLY FIRST HEARING I HAVE RECORDED AS ON MY OFFICE CAMERAS SO I WILL PUT ON SOCIAL MEDIA !!! TO SHOW THE PURE INCOMPETENCE OF THIS GOVT DEPARTMENT AND I DEMAND THE TRANSCRIPT FROM TODAY SO I CAN SUE FOR THE SLANDER FROM AN INCOMPETENT MEMBER.”
4.2 In the email sent at 12:15PM, the defendant stated:
4.2.1 “she SAID there was electrical problems in the house OUR ELECTRICIAN wrote a statement saying IT was all fine and YET he said the house had electrical problems ARE YOU GOD DAMNED SERIOUS what SORT OF AN IDIOT TAKES A TENANTS WORD who is NOT AN ELECTRICIAN!!!”
4.3 On the same day at 5:04PM, the defendant sent an email to a tenant, Cc to SACAT which stated:
4.3.1 “CLEAN UP YOUR FILTH, DOG SHIT AND PAY FOR YOUR WATER USAGE ! WE WILL BE COMING FOR EVERY CENT. WE HAVE ALSO PUT IN A VARY TO SET ASIDE. THAT JUDGE HAS BREACHED THE ACT!”
4.4 On 15 July 2016 his Honour Justice Parker, wrote to the defendant warning her that it was not permissible for a person appearing before a court or Tribunal to behave in the manner that she did. Following this letter the defendant emailed SACAT on 18 July 2016 at 9:59AM. This email included the following statements:
4.4.1 “SO send me a letter PURELY addressing the issue of the HEARING I WAS NOT IN ATTENDANCE FOR as my owner wants to know why your MEMBERS are so BIAS against OWNERS of a property !!!”.
4.4.2 “I don’t care if you’re a supreme court JUDGE either ! I then expect that you would be over seeing the department that YOU are now responsible for and do it correctly and competently !”
5. Conduct towards South Australia Police
5.1 On 30 May 2016, the defendant attended a rural property at Hillier, SA that was managed by the defendant’s business Marley-Duncan Real Estate.
5.2 South Australia Police (SAPOL) was in attendance, as the property was the scene of a triple homicide of the tenants. Channel 7 and 10 film crews also attended the scene.
5.3 On arrival at the front gate of the property, the defendant was interviewed by a Channel 7 news reporter whilst seated in her car. In answering the reporter’s questions, the defendant identified the name of the tenant, and that the family were Centrelink recipients to the reporter and other media in attendance.
5.4 By so doing, the defendant disclosed personal and confidential information that she was privy to as the land agent responsible for managing and supervising Marley Duncan Real Estate to news reporters, in circumstances where the tenants had just been murdered.
5.5 The defendant then alighted from her vehicle and approached SAPOL officer Sergeant Savage, who was on duty at the gate of the property. After a brief conversation, the defendant proceeded to insult and abuse Sergeant Savage.
5.6 The defendant shouted at Sergeant Savage, stating:
5.6.1 “Go fuck yourself.” “You’re a piece of shit mate…” and “…do your fucking job cunt, then there wouldn’t be two kids dead, would there… do you’re fucking job you fat piece of shit. If you want to blame anyone, blame these fucking cunts, because they never respond to any complaints we make…”.
6. Email to Commissioner for Consumer Affairs & SACAT, June 2017
6.1 On 9 June 2017 the defendant emailed various parties including the Commissioner for Consumer Affairs and SACAT regarding “Silent Tenant Bond Refund Request”. The email included the following statements:
6.1.1 “TYPICAL USELESS DUMB GOVERNMENT DEPARTMENTS CANNOT DO ANYTHING RIGHT !”
6.1.2 “THEY ARE THE MOST INCOMPETENT USELESS HUMANS ON THIS EARTH ! THEY MAKE OUR JOB 1000 TIMES HARDER THAN IT ACTUALLY HAS TO BE ! AND DON’T YOU JUST LOVE SA HOUSING REJECT THE BOND CLAIMS WHEN IT IS CLEAR IN RENT ALONE THEY OWE OVER THE BOND !”
6.1.3 “THEY EITHER CANNOT READ AND OR JUST PLAIN STUPID ! I HAVE HAD ENOUGH OF SACAT AND SA HOUSING AS THEY ARE ALL OXYGEN THIEVES !!!! BUT ITS LIKE BASHING YOUR HEAD AGAINST THE WALL !”
6.1.4 “MY BELIEF IS ALL GOVERNMENT WORKERS ON THEIR HUGE INCOMES THAT US TAXPAYERS PAY ARE NOT WORTHY OF THE INCOME THAT WE PAY THEM !!!”
7. Social Media Posts
7.1 The defendant has a Twitter account under the name of Hayley Marley-Duncan at On 6 Sept 2016, the defendant posted:
7.2.1 “SACAT you are an incompetent bunch of fucktards who does not apply the law or abide by the ACT !!!! FUCKING BUNCH OF IDIOTS !!!!!!”
7.3 On 10 Feb 2016, the defendant posted the following comment in relation to SA Police:
7.3.1 “Those lying corrupt maggots ! They lie bully and try to intimidate ! Won’t intimidate me cunts!!”
7.4 On 27 Nov 2015, the defendant posted the following: “Cunts cunts are everywhere. The human race are a bunch of lying two faced immoral cunts !!!!! Have some ethics and morals!”
8. In the foregoing, namely Particulars 1 to 7, the defendant land agent has acted improperly.
9. In the foregoing, namely Particulars 1 to 7, events have occurred such that the defendant would not be entitled to be registered as an agent if she were to apply for registration in that:
9.1 The defendant is not a fit and proper person to be registered as an agent
This complaint is brought pursuant to s 44 of the Land Agents Act 1994.
The Commissioner alleges that based upon the content of particulars 1 through 7, Duncan has acted improperly as a land agent. Based upon the same particulars, the Commissioner also alleges that events have occurred such that Duncan would not be entitled to be registered as an agent if she were to apply for registration, given that she is not a fit and proper person to be registered as an agent.
Duncan has been registered as an agent pursuant to the provisions of the Act since at least 2014. She is a shareholder, director and principal of Marley Duncan Proprietary Limited trading as Marley-Duncan Real Estate (ACN 119 755 690), a registered land agent (RLA 198802).
The Commissioner complains that Duncan has engaged in and will continue to engage in a continual pattern of abusive conduct towards all other participants in the regulated system of residential tenancies within South Australia. The Commissioner alleges that the content of the particularity of the complaint is representative of the underlying features of the practice of Duncan, which persist up to the time of the hearing before me and are unlikely to change in the future. As an example, the Commissioner points to the affidavit of Ms Lisa Richmond as recent behaviour of Duncan, which is said to be reprehensible.
The Commissioner complains firstly of Duncan’s conduct towards the Residential Tenancies Tribunal, which is described in particulars 1, 3, 4 and 6, and emails and correspondence with the South Australian Civil and Administrative Tribunal (‘SACAT’) as specified in particulars 4 and 6.
The Commissioner contends that these particulars of conduct demonstrate a history of long-standing behaviour of Duncan as being abusive, showing disrespect towards the Tribunal as an institution and which culminated in a letter from the then President of the Tribunal, the Honourable Justice Parker of 15 July 2016. In particular, reference is made to the penultimate paragraph of the letter from his Honour which reads:
I completely reject your criticism of the member’s conduct during the two hearings. I strongly consider that your outrageous conduct interfered with the member’s efforts to conduct a fair hearing on the first occasion.
The Commissioner also contends that although Duncan is not a member of the Real Estate Institute of South Australia, she is required to comply with the Code of Conduct of that body because that Code establishes the expected ‘norms of behaviour’ for agents and thus is relevant to any assessment of a person’s fitness and the proprietary of her conduct in the profession as an agent. It is an objective source of the standards of behaviours for agents. The Commissioner contends that Duncan has failed to comply with the obligation to maintain the honour and dignity of the profession because of her conduct towards the South Australian Police relating to an event at Hillier in South Australia outlined in particular 5. It is alleged that at that time she was abusive towards a police officer and then disclosed confidential information to which only she was privy and which should never have been disclosed.
Duncan generally represented the interests of landlords. The Commissioner contends that in a regulated profession, the representations of the interests of the landlords needs to be carried out in an appropriate professional manner having regard to the interests of other people in the system. The Commissioner further contends that based upon the evidence, there is cause for disciplinary action against Duncan and that the only appropriate order is the cancellation of Duncan’s registration until further order. That would serve the function of securing appropriate professional standards.
The Evidence for the Commissioner
The Commissioner tendered in evidence the content of Exhibit P1, which was described as the trial book, together with Exhibit P2, which was described as a supplementary trial book.
Because of the seriousness of these particularised complaints and the significant sanction sought by the Commissioner, it is appropriate that I announce the approach that I will take to the assessment of evidence here.
I think that it is appropriate that I apply the criminal onus of proof beyond reasonable doubt upon the issues to be proved in this case. I will hereafter apply that very high standard of proof. If I announce that I am satisfied of a particular fact, then this means that I am satisfied of proof of that fact beyond reasonable doubt. In the event that I refuse to accept a version of events given by Duncan, then I am satisfied that the version of events is not reasonably possibly true. I accept that this is not a typical approach and arguably the civil standard informed by the decision in Briginshaw v Briginshaw[1] would apply. I have decided not to proceed in that way because I am satisfied that the application of the criminal standard and all that it entails is appropriate here due to the of the seriousness of this charge and its possible outcome.
[1] (1938) 60 CLR 336 at 350, 362-363.
The Commissioner relied upon three discs of audio recording, namely Exhibits P3, P4 and P5. Those discs were played in Court and I have listened to them again in my consideration of the factual material. There is transcript of the content of Exhibits P3 and P4 respectively at pp 18-34 and 50-73 of Exhibit P1. The content of each of these two exhibits are the exchanges between a member of SACAT, tenants and Duncan concerning two particular tenancies and are the subjects of particulars 1 and 2. Different issues arise in both cases.
It is not necessary that I survey the content of these conversations in any particular detail given that the content of the transcript starkly displays Duncan’s behaviour. The criticisms made of Duncan arising from these conversations are both general and specific. The specific aspects concern the way in which Duncan behaved at these hearings.
Particular 1 of the Complaint
The first hearing in the Tribunal is the subject of count 1 on the Complaint; the second hearing is the subject of count 3 of the Complaint. The particularity, which is the subject of count 1, is that Duncan repeatedly and aggressively spoke over the member who ultimately terminated the call due to her offensive and abusive behaviour. There is no contest that the member of SACAT terminated the call. I am satisfied that the conduct of Duncan in that hearing was both offensive and abusive towards the member and the Tribunal itself. In the exchanges between the member and Duncan, she refused to comply with the requests of the member to allow the tenant to explain his situation; she refused to comply with the requests of the member to refrain from abusing the tenant and abusing the privilege of the hearing when the member made plain to Duncan that he understood the submissions that she was making. Notwithstanding those matters, Duncan aggressively demanded that the tenant explain himself and refused to properly respond to requests for information concerning the application and the position of the landlord. Duncan indirectly threatened the Tribunal by suggesting that she would confer with politicians because of her dissatisfaction with the performance of the Tribunal. In the end, Duncan said she would not accept any proposition from the tenant and, because of her aggression, the member terminated the phone call.
Particular 3 of the Complaint
On the conversation the subject of Exhibit P4, the hearing before the Tribunal member in the presence of the tenant was marked by continual yelling by Duncan with her voice being raised to a pitch of yelling continuously throughout the conversation. She refused to comply with the requests of the member to conduct the hearing in an acceptable manner, with her continuously criticising the tenant, refusing to discuss the issue at hand and refusing to comply with the requests of the member for some form of civility during the hearing. Duncan also continuously accused the Tribunal and the member of failing to do their jobs. She said that the member was not worthy of her respect, that all problems lay with the Tribunal and with the member, that the tenant was an inveterate liar, with everything the tenant was saying to the Tribunal being a provable lie. The tone of voice used by Duncan throughout this hearing was quite extraordinary. Her voice did not lower from a yelling pitch and on occasion she displayed uncontrolled anger. Duncan continuously refused to comply with the requests of the member of the Tribunal such that the process of the hearing became uncontrolled. It was necessary for the member to terminate the hearing.
My description of this hearing is slightly benign. It is necessary to listen to the recording of the appearance in order to obtain a full understanding of how inappropriately Duncan represented the interests of her landlord and how disrespectfully she behaved throughout the whole of the hearing. I am satisfied that her behaviour displayed a personal vendetta against the tenant and a wish on her part to use the appearance before the Tribunal as an opportunity for her to ventilate everything she thought was wrong with SACAT generally and the Tribunal system. She refused to accept any request made to her for there to be a balanced and methodical examination of issues. In my view, it is irrelevant that a preponderance of issues may have favoured her client. The issue is my assessment of her behaviour.
The third ground of the complaint alleges that during the same hearing, Duncan made several personal insults against the tenants including her status as a single mother and welfare recipient. I am satisfied of the proof of these matters. It also alleges she rudely questioned the competence of the member by the statements there set out. I am satisfied that she made those statements. I am satisfied that her behaviour was rude and inappropriate. I am satisfied that Duncan persistently interrupted the member, despite requests to be quiet and to let others speak and then insulted the member suggesting that he was the source of her anger, a waste of taxpayers’ money and not doing his job properly.
Particular 5 of the Complaint
Exhibit P5 is a video of statements made by Duncan to reporters from two television stations on 30 May 2016. It is the subject of paragraph 5 of the complaint.
On that day, Duncan attended at a rural property at Hillier. That property was owned by a client of Duncan’s business and Duncan was managing the tenancy of that property. A tragedy occurred at the property, with the circumstances being domestic violence and a woman and her two children being killed. Police were in attendance, as were film crews from the commercial television stations. At the front gate of the property, adjacent to the roadway but removed from the house itself, an interview took place between Duncan and a reporter for Channel 7 News. Duncan had become aware of events over the radio and had checked the location with police. Not accepting the police information, she then drove to the property. There, a television crew interviewed her. The interview was filmed. I am satisfied that the cameraman filming was positioned adjacent to the front driver’s side mirror of Duncan’s vehicle. The cameraman was filming directly at the face of Duncan who was sitting in the driver’s seat of her vehicle. The woman interviewing Duncan is hardly in view however, her hand holding a microphone inside of Duncan’s vehicle and directed to Duncan’s face is plainly visible. I am satisfied that it was quite obvious or should have been quite obvious to Duncan that the exchanges between the reporter and Duncan were being recorded and were being filmed. Any suggestion by Duncan to the contrary is not reasonably possibly true.
Whilst she was being interviewed, Duncan identified a number of facts concerning the tenants. She informed the television station of the name of the tenant and that the family were Centrelink recipients. I am satisfied that Duncan was only privy to this personal and confidential information in her position as a land agent.
After speaking to those reporters, Duncan then got out of her vehicle. She was being filmed and what she said was being recorded. She walked towards a South Australian Police officer, a Sergeant Savage, whose vehicle blocked the entrance to the semi-rural rental site. I am satisfied that Sergeant Savage was on what is usually described as ‘guard duty’ at the gateway of the property, in order to preserve the crime scene. I am satisfied that without reason or cause, Duncan loudly insulted and abused Sergeant Savage. The words she used are set out in paragraphs 5.6.1 of the Complaint. I am satisfied she used those words and I am satisfied she intentionally insulted and abused Sergeant Savage. I am also satisfied that she was aware she was being filmed and that what she was saying was being recorded. She then walked back to her car, got into the driver’s seat and was asked further questions by another commercial television reporter. I am satisfied she was completely aware at all times that everything she said was being recorded.
Particular 2 of the Complaint
This count relates to Duncan’s conduct towards other members of the profession of real estate agents, specifically a Mr Greg Bolto of Harcourts Property People. The evidence consists largely of a series of emails.[2] I am satisfied that these emails were exchanged on or about 10 and 11 December 2015. They concern a rental property at Albert Street, Alberton. The previous manager was Mr Bolto’s business, Harcourts Property People. The first email is from Mr Bolto to Duncan on 10 December 2015 at 4.25 pm. In it, Mr Bolto says Duncan is the appointed agent from 18 December 2015 but the tenants will be in occupation until 20 December 2015. He invites Duncan to collect the keys from his office as long as his firm continues to be the appointed agents.
[2] Exhibit P1, pp 35-39.
Duncan responds with an email at 4.31 pm on the same day. She is unable to understand Bolto’s confusion, confirming that the lease ends on 18 December 2015 and there is no agreement to an end of 20 December 2015. She demands that Bolto get the keys to the premises on 18 December 2015, finalise the tenancy, collect his commissions, does his final inspection and then she will take possession. If he does not do that, the landlord will sue Bolto. She then asks Mr Bolto whether he was on the REI Board, suggesting ‘they are a bunch of idiots who don’t know how to do their jobs.’ She confirms that there is no agreement to a two-day extension from 18 to 20 December 2015, and as she will not be available after 18 December 2015, there cannot be an inspection until early January 2016. She says Mr Bolto is the appointed agent until the completion of the tenancy, calls him a moron and tells him to do his job saying ‘FFS, it is not hard.’ She suggests she might make the emails public to show how pathetic Mr Bolto is.
Mr Bolto responds at 4.43 pm the same day. He informs Duncan that he is unable to change the vacation dates because they had been agreed with the tenant much earlier. He suggests the changeover be 20 December 2015 or when Duncan is back from leave, given that he will be working through Christmas, with the keys being ready for collection with handover on 20 December 2015 and a final inspection.
On 11 December 2015, Duncan responds suggesting what Mr Bolto has just said in the email is what she suggested, asks for the final inspection to be complete on 20 December 2015 and for him to ensure it is ready for handover, with the keys being ready for collection on 4 January 2016 with a viewing on that day.
Mr Bolto responds at 10.23 am on 11 December 2015, confirms a meeting on 4 January 2016 and suggests that any further communications must be directed to him as his staff will not be abused any further. At 1.21 pm on the same day, Duncan responds to Mr Bolto, telling him his staff should do their job and stop trying to pass the buck. She states the staff are incompetent and that she does not think anything of Mr Bolto. She suggests that Mr Bolto had arranged for an extension of the lease without authority, that he should not have done so, that he was a moron, that she could not understand how he survives in real estate, she suggests that she could not understand how he could be on the REI Board as the REI Board seemed to employ morons.
Mr Bolto responded at 1.36 pm the same day and said that due to the gutter forms of communication used by Duncan, from that date the Harcourts Property People would no longer act for the landlord. He asked for her to collect the keys and advised he will close his file on the following Monday.
Duncan responded at 1.46 pm the same day and confirmed Mr Bolto would have the tenant out of the property on 18 December 2015 at the end of the lease, suggested he was not doing his job as usual, confirmed she would collect the keys on 4 January 2016 and if that is not satisfactory, he would not appreciate bad publicity such as complaints to the Small Business Ombudsman, the REI and ‘Today Tonight’.[3]
[3] A television program.
Gregory Ross Troughton, the Chief Executive Officer of the Real Estate Institute of South Australia (REISA) provided a statement of witness which was accepted into evidence as part of Exhibit P1. He was not otherwise examined or cross examined.[4] Mr Troughton explains the Real Estate Code – Conduct, Ethics and Behaviour in Real Estate (‘the Code’) sets boundaries of acceptable conduct in real estate practice and defines minimum standards of behaviour to hold membership. The Code was created in response to the real estate reforms of 2003/2004 when a legislated Code of Conduct was not adopted by the Government of the day. The Code was then developed and REISA members are required to abide by it.
[4] See pp 40-49 of Exhibit P1.
At paragraph 6 of his witness statement, Mr Troughton says as follows:
6. The Code applies to all land agents but enforcement is via different mechanisms. The Code of Conduct applies directly to members. If a land agent is a non-member and the Commissioner of Consumer Affairs takes disciplinary action, reference may be made to the Code and assistance sought from REISA on the expected norms of the Code.
There was no challenge to this evidence. Clause 11 of the Code relates to relations with other practitioners. It reads:
11. RELATIONS WITH OTHER PRACTITIONERS
A Practitioner should treat other Practitioners with respect.
11.1 A Practitioner should not make, authorise or encourage any derogatory, disparaging or unfounded comments concerning the practices of another Practitioner.
11.2 A Practitioner should not exaggerate or misrepresent their services in their own right or compared to services offered by other Practitioners.
11.3 Nothing in this Code should restrict legal or reasonable business competition by and among Members and/or Practitioners.
11.4 A Practitioner should attempt to settle disputes with any other Practitioners in an appropriate professional manner.
The expression ‘Practitioner’ is defined to mean ‘any registered agent, sales representative, property manager, strata manager, trainee or auctioneer involved in real estate for fee or reward.’
I find that Duncan has intentionally made derogatory, disparaging and unfounded comments about Mr Bolto and that by doing so, she has breached the standard established under the Code. Notwithstanding, I do not consider that communications of this type are sufficient to ground an order under this Complaint; they remain material that stands in the factual background.
Particular 4 of the Complaint
The fourth item on the complaint is email correspondence to SACAT. It refers to emails sent to SACAT at 12.08 pm, 12.12 pm, 12.15 pm, 12.16 pm, 12.18 pm, 3.35 pm, 5.08 pm and 5.09 pm on 25 May 2016. They are at pp 80-84 of Exhibit P1. They read as follows:
From: Hayley …
Sent: Wednesday, 25 May 2016 12:08 PM
To: TRIBUNAL; Dini (AGD) Soulio; Mr SoulioCc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Barbara (AGD) Johns; Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
THIS IS GETTING BEYOND A JOKE !!!
This member this morning has ended a fixed lease with a tenant with past BAD HISTORY who has left the house trashed I have already emailed pictures.
HE commented “WE KNOW HOW MS MARLEY DUNCAN TREATS HER TENANTS” Firstly this MAN has never been a tenant of mine ! Secondly HAS ended her LEASE from 6th MAY today is the 25th May. THIS tenant has trashed the house and NOT RETURNED KEYS so we have been unable to RE TENANT in its current trashed condition !!!
YOU BETTER DO SOMETHING ABOUT THIS !!
The other thing is THE TENANT HAD A DOG WITH NO PERMISSION and yet the MEMBER today didn’t seem to care ABOUT THAT !!!!! HE said oh well u shouldn’t of had a dog but apparently ended the lease due to LACK OF MAINTENANCE we all proof and invoices to prove maintenance done AND YET He has allowed her TO WALK OUT AND TRASH THE HOUSE !!
SO WHO IS CLEANING UP HER SHIT SHE HAS LEFT !!!!!!
THE OWNER AND THE TRADIES WERE PRESENT AT THIS HEARING AND WERE COMPLETELY SHUT DOWN AND NOT LISTENED TO AND SHOWN DISRESPECT. I INSTRUCTED WE DID NOT WANT THIS BIAS MAN WHO CLEARLY DOESN’T KNOW HIS JOB !!!! OUR TAX PAYING FOR A MEMBER WHO DOESN’T EVEN FOLLOW THE LEGAL PROCESS !!!
I HAVE SENT ALL BEFORE AND AFTER PHOTOS OF THE DAMAGE SHE HAS CAUSED !!
YOU PLEASE EXPLAIN HOW MEMBERS CAN JUST TAKE A TENANTS WORD WHICH WERE PROVED LIES !!! AND DISREGARD THE OWNER AND THE TRADIE THAT HAS DONE EVERYTHING FOR THIS PROPERTY !!!!!
THIS SYSTEM IS A GOD DAMNED JOKE !!!
SOMEONE BETTER CONTACT ME RE THIS INCOMPETENT IGNORANT MAN WHO DOESN’T KNOW THE PROCESS !!!
BARBARA THIS SEEMS TO BE A REPEAT OF MR VINCENT DOESN’T IT !! HE SEEMS TO HAVE AN OPINION AND ISSUES WITH MY PERSONALITY WHICH IS IRRELEVANT.
I WANT THE RECORDING AND THE TRANSCRIPTS TO BOTH OF THESE HEARING ASAP !!!!!
AND I WANT THEM ASAP !!!!
ACTUALLY FIRST HEARING I HAVE RECORDED AS ON MY OFFICE CAMERAS SO I WILL PUT ON SOCIAL MEDIA !!! TO SHOW THE PURE INCOMPETENCE OF THIS GOVT DEPARTMENT AND I DEMAND THE TRANSCRIPT FROM TODAY SO I CAN SUE THE GOVERNMENT FOR THE SLANDER FROM AN INCOMPETENT MEMBER !!!!
From: Hayley …
Sent: Wednesday, 25 May 2016 12:12 PM
To: Hayley; TRIBUNAL; Dini (AGD) Soulio; Mr SoulioCc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Barbara (AGD) Johns; Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
I WANT A RE HEARING URGENTLY !!!
HE BROUGHT UP MY TWITTER WHICH IS IRRELEVANT !!! SHE WROTE ON MY TWITTER TO A COMMENT THAT WAS NOTHING TO DO WITH HER !!!!!
ARE YOU KIDDING ME !
I DEMAND A RE HEARING WITH A PERSON WHO KNOWS THIER JOB !!!!
From: Hayley …
Sent: Wednesday, 25 May 2016 12:15 PM
To: Hayley; SACAT; Soulio, Dini (AGD)Cc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Barbara (AGD) Johns; Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
She SAID there was electrical problems in the house OUR ELECTRICIAN wrote a statement saying IT was all fine and YET he said the house had electrical problems ARE YOU GOD DAMNED SERIOUS what SORT OF AN IDIOT TAKES A TENNANTS WORD who is NOT AN ELECTRICIAN !!!!
From: Hayley
Sent: Wednesday, 25 May 2016 12:16 PM
To: Hayley; TRIBUNAL; Dini (AGD) Soulio; Mr SoulioCc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Barbara (AGD) Johns; Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
TENANT MADE UNTRUE STATEMENTS AND ADMITTED SHE HAD NO EVIDENCE TO BACK UP WHAT SHE WAS SAYING EVEN THOUGH WE HAD ALL THE EVIDENCE HE STATED HE BELIEVED HER !!! SHE HAS SAD PAST HISTORY !!!!! HAS TRASHED THE HOUSE ! HAS NOT RETURNED KEYS !!!
WHAT THE HELL IS GOING ON !!! WHERE DO YOU GET THESE MEMBERS !!!!
From: Hayley
Sent: Wednesday, 25 May 2016 2:18 PM
To: Hayley; TRIBUNAL; Dini (AGD) Soulio; Mr SoulioCc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Barbara (AGD) Johns; Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
NOT ONLY THAT !!!!
IF A TENANT HAD MAINTENANCE ISSUES SHE HAS TO ADDRESS THAT AS PER THE ACT NOT LEAVE THE PROPERTY TRASHED THEN TAKE US TOO TRIBUNAL WITH UNTRUE STATEMENTS !!!!
SHE IS ALSO DEFRAUDING CENTRELINK !!!!
NO WONDER PEOPLE GET AWAY WITH STUFF AS THESE SYSTEMS ALLOW FOR IT !!!
LANDLORDS ARE GETTING FED UP !!!!!!! SHE HAD NO PROOF OF ANYTHING YET WE PROVIDED HUNDREDS OF PHOTOS INVOICES STATEMENTS AND YET SHE GOT OUT WHEN THE CORRECT PROCESS WAS NOT FOLLOWED AT ALL AND IF HE KNEW HIS JOB THEN HE WOULD KNOW HOW TO FOLLOW CORRECT PROCESS !!!!
From: Hayley
Sent: Wednesday, 25 May 2016 3:35 PM
To: Hayley; TRIBUNAL; Dini (AGD) Soulio; Mr SoulioCc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Barbara (AGD) Johns; Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
FORWARD TO MS ALVINO
From: Hayley
Sent: Wednesday, 25 May 2016 5:04 PM
To: …Cc:SACAT:SACAT; Johns, Barbara (SACAT)
Subject: Invoice Payment History from MARLEY DUNCAN REAL ESTATE
Attachments: P206.PDFCLEAN UP YOUR FILTH, DOG SHIT AND PAY FOR YOUR WATER USAGE !
WE WILL BE COMING FOR EVERY CENT. WE HAVE ALSO PUT IN A VARY TO SET ASIDE.
THAT JUDGE HAS BREACHED THE ACT !
FORWARD TO MS ALVINO ALONG WITH ALL THE OTHER EMAILS !
From: Hayley …
Sent: Wednesday, 25 May 2016 5:09 PM
To: Hayley; SACAT:SACAT; Soulio, Dini (AGD)Cc:Dennis Hood; Emma (SACAT) Blackman; Shari Olsson; Johns, Barbara (AGD); Tony Kerin
Subject: Re: RE hearing today at 10am with member for … GAWLER WEST
ALSO !
SHE REFUSED US ENTRY AND ALL DOCS TO PROVE. HE ENDED THE LEASE ON THE 6TH MAY SO BACKDATED. ON THE 2ND MAY SHE REFUSED US ENTRY TO SHOW PROSPECTIVE TENANTS SO WE HAVE NOT BEEN ABLE TO RE LET. WHY SHOULD A LANDLORD BE OUT OF POCKET DUE TO HER LIES !!! IT IS STILL IN A SHIT TIP !!! SO YEH OK LANDLORD HAS NO RENT FROM 6TH MAY AND SHE STILL HAS KEYS AND ITS TRASHED !!!!
YEH EXPLAIN THAT ONE !!!!
The complaints about these emails are that Duncan is making a complaint about the conduct of the Tribunal member at the hearing. In the email of 12.08 pm, she demands a recording (presumably copies) of the transcripts as soon as possible and suggests that she has recorded everything on her office camera so that she could put it on social media. Her intention is to show the pure incompetence of the government department and her desire is to sue for slander by an incompetent member.
This email holds out a demand and a threat to put the material on social media in an attempt to make good her claims of the “allegations of incompetence” of the department and a member of whom she intends to sue for defamation.
In the second email, sent at 12.15 pm, amongst other things, Duncan suggests a member of the Tribunal is an idiot because he has taken a tenant’s word over the word of an electrician in relation to whether or not there was a particular electrical problem at an occupied home. The intention of the email is to denigrate the status of the member, calling the member an idiot.
In the email on p 82 of Exhibit P1 (5:04 pm 25 May 2016 quoted above), Duncan suggests that the Judge (presumably the Tribunal member) has breached the Act and suggests that the tenant is required to clean up dog faeces and to pay for water usage. She suggests that the landlord will be coming for every cent and she makes another threat, which appears incomprehensible.
The above emails were sent in May 2016. On 15 July 2016, the Honourable Justice Parker, the president of the Tribunal, wrote to Duncan.[5] In the letter, Justice Parker deals with a number of issues arising from the hearings. There had been an internal review of the matter concerning Mr C (particular 3) and the original decision of the member was set aside. Justice Parker informs Duncan that it was his clear view that if she displayed that conduct in court, she would have been dealt with for contempt. He reminds her that no lesser standard of behaviour was expected and required in a tribunal such as SACAT. His Honour suggests that Duncan has wilfully interrupted the proceedings of SACAT and that if her behaviour is repeated, he will give serious consideration to referring the matter to relevant authorities for prosecution.
[5] Exhibit P1 p 94.
Justice Parker then informs Duncan that her ability to participate in any hearing by telephone should be modified until such time as he is satisfied that her behaviour has been rectified such that it would permit the fair and efficient conduct of hearings by telephone. That would be the case absent any special and compelling reasons. His Honour also informs Duncan that the SACAT Act[6] empowers members to exclude a person from the hearing in the interests of justice. This would include where that person’s behaviour is completely unacceptable.
[6] South Australian Civil and Administrative Tribunal Act 2013.
His Honour rejected the suggestion that Duncan’s electrical tradesman and the owner had been dealt with contemptuously. In that hearing, all evidence that could have been given was given and all submissions that needed to be made were made. His Honour also rejected the allegation made in these emails about what was said to Duncan by the member; his Honour then describes the transcript and sets out in detail what was actually said. His Honour rebuts any suggestion of a comment about Duncan’s conduct generally.
In relation to the matter relating to Mr C, his Honour also rejected the assertion about the treatment of Duncan by the member. The presiding member did not hang up the phone, but did however arrange for a further hearing which parties were required to attend in person. He confirmed that, as the transcript discloses, Duncan had called the tenant a liar on a number of occasions and made other ‘… gratuitous and highly offensive personal remarks about her matters such as the paternity of her children that were irrelevant to the proceedings.’[7] His Honour also confirmed that is there was to be any criticism of the member, it was that he allowed her conduct to go on for too long. His Honour concluded:
I consider that the review process is adequately dealt with the issue of the legal correctness of the decision made by the members.
I completely reject your criticism of the members conduct during the two hearings. I strongly consider that your outrageous conduct interfered with the members efforts to conduct a fair hearing on the first occasion.[8]
[7] Exhibit P1 p 5.
[8] Ibid.
The letter from Justice Parker to Duncan was sent by email on 15 July 2016 at 2:16 pm. On the same day, at 2:54 pm, Duncan responded to the sender of the email with copies to a number of people in the following terms:[9]
[9] Exhibit P1 p 102.
From: Hayley
Sent: Friday, 15 July 2016 2:54 PM
To: SACAT:SACATCc:Dennis Hood; Shari Olsson; Property Management; Soulio, Dini (AGD); Gia Loukas; Manager @ D&M Kohlhagen
Subject: Re: Tribunal reply to complaint made on 7 July 2016
AND we also wont want THIS man doing any of our internal reviews as he seems to have the SAME opinion as STEPHEN THOMAS !!
Funny MEN always have the problem with ME. Ms COLE was competent and PROFESSIONAL!
SO we don’t want people hearing our hearings if they ARE going to be BIAS against MY STRONG PERSONALITY !!!
PEOPLE do not get to tell people they CANNOT fight for there LANDLORDS RIGHTS !!!
The meaning of this email is plain enough; it is an assertion by Duncan of sexism within SACAT and a prejudice of agents fighting for their landlord’s rights.
Particular 6 of the Complaint
The sixth item of complaint concerns an email from Duncan on 9 June 2017.[10] It reads as follows:
[10] Exhibit P1 p119.
From: Hayley
Sent: Friday, 9 June 2017 10:38 AM
To: Property Management; [Dennis Hood]Cc:Soulio, Dini (AGD); Sedgwick, David (AGD); Johns, Barbara (AGD); [Clare Burt (SACAT)]; Virgo, Melana (SACAT); [DM Kohlhagen]
Subject: Re: Silent Tenant Bond Refund Request
TYPICAL USELESS DUMB GOVERNMENT DEPARTMENTS CANNOT DO ANYTHING RIGHT !
THEY ARE THE MOST INCOMPETENT USELESS HUMANS ON THIS EARTH ! THEY MAKE OUR JOB 1000 TIMES HARDER THAN IT ACTUALLY HAS TO BE ! AND DON’T YOU JUST LOVE SA HOUSING REJECT THE BOND CLAIMS WHEN IT IS CLEAR IN RENT ALONE THEY OWE OVER THE BOND !
THEY EITHER CANNOT READ AND OR JUST PLAIN STUPID ! I HAVE HAD ENOUGH OF SACAT & SA HOUSING AS THEY ARE ALL OXYGEN THIEVES !!!! BUT ITS LIKE BASHING YOUR HEAD AGAINST THE WALL !
MY BELIEF IS ALL GOVERNMENT WORKERS ON THEIR HUGE INCOMES THAT US TAX PAYERS PAY ARE NOT WORTHY OF THE INCOME THAT WE PAY THEM !!!
IT DRIVES ME MAD !!!!!
This email was sent to the Commissioner, SACAT and a number of other addresses. It concerned what is described as a ‘Silent Tenant Bond Refund Request’ and a complaint made by another agency called Carson Real Estate to a Dennis Hood at the South Australian Parliament, that was copied to Duncan. Duncan then responded and forwarded her email to the Commissioner and SACAT. Duncan’s email is a direct criticism of the Commissioner and the staff of SACAT.
Particular 7 of the Complaint
The seventh item relates to social media posts that are set out in Paragraph 7.2, 7.3 and 7.4 of the Complaint. The material identified in 7.2 is directed at SACAT. The material in 7.3 is obviously directed at the police. The material contained in 7.4 does not appear to have any particular direction.
The case for the Defendant
Duncan gave evidence. She informed me of her experience, of her real estate agency practice which is predominantly in the northern suburbs and of the difficulties of unemployment and drug use in the northern suburbs. Generally, members of her family now work within her business. Her husband does the initial and the final inspections and he shows prospective tenants through the properties. Another employee, Mr Karen Griffiths, now does all SACAT hearings and has done so for two and half years. She also does the insurance claims, lease renewals and extensions.
She said that she had attended some 600 hearings or more. She then informed me of the appropriate procedures under the Act for dealing with defaulting tenants and the hearings before SACAT which can occur some six to seven weeks after an application is made. This could mean that a tenant could be up to 10 weeks in default at the time of a hearing. She then addressed the particulars in the complainant specifically or generally.
SACAT Hearings (particulars 1 and 3)
Duncan said the tenant Mr D had failed to pay his rent; he was drug user. She said that it had taken four months to get vacant possession after the event. The tenant was then evicted; the landlord was owed thousands and there was an insurance claim. She said that the ‘judge’ would not order vacant possession. She referred to Exhibit D7. However, these papers relate only to the matter of Mr C (particular 3), not the matter of Mr D (particular 1). The document to be found at pages 1 – 5 of Exhibit D7 are the reasons for decision of Judge Cole when her Honour sat as Deputy President of SACAT. Her Honour overturned the decision of the Tribunal at first instance and found that Mr C had abandoned the property. It was found that an order for vacant possession should have been given to the landlord and the landlord had a right to resume occupation.
In relation to Mr C, Duncan was then taken to a hearing of the Tribunal on 3 August 2016. The audio (Exhibit P3) was from the first hearing. She did not attend the next two hearings because she had removed herself from the situation because of her frustration. She said that the tenants were not required to follow processes whereas that was always the obligation upon the landlords. She said the accusations of the tenants were complete lies. She said that when a tenant has a complaint, there is a hearing within a week; when a landlord has an issue, there is a hearing within 6 weeks. When she attended the hearing in relation to Mr C, she did not understand what the issues were. She did attend a compensation hearing which allowed total claims of $4,862.55 against Mr C. There was forfeiture of the bond by Mr C.
In her evidence, she then returned to particular 1 and the hearing before Mr Stevens. She said the issue was ultimately resolved within SACAT; it took four months and there was a substantial debt. There was a compensation claim and an insurance payout.
The documents in relation to Mr D are to be found in Exhibit D8. At paragraph six of his reasons,[11] Mr Stevens records that he became concerned that the landlord effectively became unrepresented as a result of the behaviour of Duncan and the termination of the telephone call. He decided that the hearing should be adjourned to another date and on that day, there should be personal attendance by the landlord. Duncan was welcome to participate if so instructed, however, the Tribunal would expect her behaviour at this hearing to be appropriate. The matter was adjourned to a date to be fixed. There was a further hearing without attendance by either party on 19 August 2015. Finally, on 27 August 2015, Mr Stevens heard sworn evidence from Duncan, received documentation in relation to the breaches allegedly made by Mr D and made orders for Mr D to move out of the premises by midday 28 August 2015 and for forfeiture of the bond. Further orders were made that within 14 days Mr D must pay the landlord $728.94, being the balance owed for rent and water rates. Those monies have not been recovered.
[11] Exhibit D8 starts at p 11 of the Trial Book (MFI D1). The reference is from p2 of Exhibit D8 at p 12 of the Trial Book.
Duncan said that before the phone conference she did not know what the case was about and she did not know why she was receiving a telephone call from SACAT. She said that they were told there was a hearing but not what it was about. It all came as a surprise to her. However, that assertion of fact is not made out on the hearing materials. She had the file with her, she could go to the file at any time she needed to and did make reference to the file to find documents.
She then complained of matters following that hearing where the owners attended the next meeting without her. The owners were very upset about the way they were treated. It was not until the judgment of the Tribunal member was overturned that the matter of Mr C was finalised. She denied all of the issues raised by Mr C in relation to maintenance and other matters and she said that Mr C was telling lies in her complaints. She claimed to be very fair to tenants and has had many thousands of tenants over the years who she has placed in rental properties.
After being pressed on the topic, Duncan accepted that the way she conducted herself in those hearings was not appropriate.[12] She said that she was irate at the time and that is probably why she stepped away from conducting hearings. She then made general complaints about the fact that she had been persecuted by a number of government departments and that she had been treated unfairly. There was no evidence led to support that assertion.
[12] T47.4.
She was then cross-examined about that evidence. She alleged that in the hearing in relation to Mr D, member Stevens would not let her speak. I am unable to accept that assertion. I have read the transcript and listened to the audio record on a number of occasions. Member Stevens gave her every opportunity to speak, yet she still refused to comply with his requests to conduct matters in an orderly fashion. Her evidence is not reasonably possibly true. She was angry because she wanted vacant possession and she did not think member Stevens was going to give it to her landlord.[13] Notwithstanding, she thought that she had effectively represented the landlord’s interest. She confirmed that on 28 August 2015, some six weeks after the initial hearing, she obtained an order for vacant possession. That was six weeks after the hearing when member Stevens was forced to terminate the hearing because of her failure to comply with his requests. It was not four months difference as she had alleged in her evidence. She also agreed that that was not the first occasion on which she had had behaved inappropriately at the Tribunal.[14] She also agreed that notwithstanding her assertion that she thought that she was entitled to vacant possession upon the application, it was not until 27 August 2015 that she made the application for vacant possession of this property.[15] She also agreed that her application did not mention anything about rent.[16]
[13] T49.21-25.
[14] T50.37-51.7.
[15] T51.28.
[16] T52.9-10.
Duncan was only able to acknowledge the possibility that her behaviour before member Thomas was inappropriate. She thought that she was justified in the way that she was speaking and acting.[17] She thought she effectively represented the landlord’s interests at the hearing and she could not understand why Member Thomas would need to understand the case being put by Mr C. She agreed that notwithstanding that, they had no evidence and thus the matter resolved on the information she was able to put before the Tribunal.
[17] T52.15-.27.
In the end, she thought that she was justified in the way she behaved before the Tribunal.[18] I am unable to accept this evidence and I find that it is not reasonably possibly true. I am satisfied on all the evidence that Duncan’s behaviour was inappropriate. She also agreed that after that hearing, she started sending emails to SACAT.[19] She agreed that those emails were not appropriate. When asked who she did think at SACAT may have seen these documents, she accepted that they were simply people trying to get on with their jobs. Notwithstanding, she again maintained that she thought that the emails were appropriate because she just wanted to state how she was feeling at the hearing.[20]
[18] T55.34-36.
[19] Exhibit P1, p 78.
[20] T58.30-31.
She sent a further set of emails after the second hearing,[21] in which she claimed that the Tribunal was biased. She said that the aspect of bias was that the hearing should never have taken place and Member Thomas was only interested in what the tenant had to say.
[21] Exhibit P1, pp 80-87.
I asked her questions about the content of Exhibit P1 p 87 and in particular the second last paragraph on the page, in which she said that it was disgraceful that her client had been treated in such a disrespectful, racist and appalling way. This was notwithstanding that she was not at the hearing. I noticed during the hearing before me that Duncan thought that something was amusing about being asked questions about this topic.[22] Eventually, in answer to questions from me, she said that she could not justify the word racist from what she had been told. Her allegation of racism was completely unfounded and it was made out of anger.
[22] T62.35.
The same applies about the assertions that she made about the ‘… vermin Centrelink dweller tenants …’ This is not the only time that she expressed this frustration about these people or that she had used this type of language. She had used that language both to the staff of SACAT and also to the tenants themselves.
She agreed that after that hearing before Member Thomas, she received a letter from his Honour Justice Parker. She would not agree with the suggestion that she had gone too far in the hearing but she did agree that this was the reason for removing herself from the next hearing. Having reflected upon the letter, she thought that the only problem was a clash of personalities between she and Member Thomas. However, she agreed that after receipt of that letter the next thing she did was to send a series of angry emails to SACAT and these really reflected what she thought.[23] She agreed, for example, that she had continually threatened SACAT with taking these matters to national television. She did not think anything of that was an improper way to correspond with the Tribunal. For example, she would not withdraw any assertions that she was making against SACAT staff where she was calling members of SACAT staff ‘lazy bitches’, calling another member a ‘bitch’, as well as describing the Tribunal and its support staff as ‘useless, incompetent and biased.’[24] She also did not see anything amiss with leaving menacing messages. At no time would she feel any compunction about telling a staff member that she was a ‘lazy bitch’. If the occasion arose she would always use that sort of language.
[23] T67.16-.22.
[24] Exhibit P2 p 40.
She agreed that she had had numerous conversations with Lisa Richmond, the Bonds Administrator of CBS concerning repayment of bonds. She denied ever raising her voice with Ms Richmond or using profanities. I reject that denial and it is not reasonably possibly true; it has no credibility in the face of the evidence of Ms Richmond and the other evidence I am prepared to accept.
Duncan was taken to Exhibit P2 p 60. She was unable to say whether the email there set out was aggressive in tone. It reads in part:
WHY is your department sending ME THIS form whether I dispute or NOT when I released over a MONTH ago! I mean really WASTE time because your department don’t even follow your own process!!!! … if your department and OR the tenants do not know how to operate the system YOU have put in place NOT really my problem is it???
Duncan agreed that what really upset her was incompetence and she could not recall saying on a number of occasions to Ms Richmond during conversations:
You’re not fucking listening to me, that’s not for the tenant.[25]
[25] Exhibit P2 p 58.
She could not remember saying these sorts of things. I am unable to accept this evidence and I find that it is not reasonably possible true.
Particular 2
Duncan gave evidence of the background of taking over the Albert Street property from Mr Bolto on behalf of the owner. She complained that by his actions, Mr Bolto had extended the vacation date by two days and her firm was instructed to go in and do the final inspection. She informed Mr Bolto that the owner did not consent to the tenancy being extended; ultimately the owner went and collected the keys and did the final inspection.
In cross-examination, Duncan justified the exchanges with Mr Bolto as being appropriate having regard to what she perceived to be his failures.
Duncan then called a series of witnesses in support of her position. The first was a Vincent Michael Wegener. Duncan is the property manager of one of his properties. That property was previously occupied by Mr C. He confirmed that it was only until the third hearing that orders were made for the termination of the tenancy and the payment of outstandings. I have already canvassed these hearings at length and I obtain very little assistance from this evidence.
Duncan then called Karen Jane Griffiths in evidence. She is a property manager at Duncan’s office. She has worked in real estate for 30 years, working predominately in property management. Her role is to deal with properties and water accounts, overdue payments and applications to be made to SACAT. She always attends SACAT hearings by telephone. She did so at the request of Duncan. She attended the second hearing in relation to Mr C and said it was a very difficult hearing.
She thought that Duncan was an extremely honest agent with good ethics and a strongly defined sense of right and wrong. She agreed that on occasions she is aggressive because she is always forthright when dealing with tenants. She speaks with a very loud voice and the level of her voice increases when she is emotionally charged. The angrier she becomes, the louder she gets. She loses her temper from time-to-time but not necessarily regularly.
She says that she also deals with the recovery of bonds. She says that she gets frustrated in those dealings but she has never been anything but professional and prides herself on her professionalism. She carries out her tasks with the level of professionalism she thinks is appropriate and gets her tasks done, despite annoyances from time to time.[26] That is also the way she has always dealt with SACAT, despite also finding SACAT hearings sometimes frustrating. I accept this evidence of Ms Griffith, but, properly considered, I am unable to see how it assists Duncan.
[26] T117.14-.24.
Duncan also called Wendy Elsom in evidence. She has rented a number of properties through the agency of Duncan. She has had very good experiences with her because she is an open and honest person, although she can come across as a bit abrasive.
Duncan then called in evidence Antonio Vincenzo Finamore. He has three properties that are managed by Duncan. In that role, he has always found her to be very professional. He thought that she dealt with tenants fairly. Her manner was always professional and he has recommended her to other landlords. He has no reason to doubt her ability as a property manager/agent.
Duncan then called in evidence Lynn Marie Fullgrabe. Between 2001 and 2017, Ms Fullgrabe worked as a property manager for Century 21 in the Gawler and general northern areas. She has known Duncan for that time. She had some interactions with Duncan such as checking references and has always found Duncan to be honest and truthful. She found Duncan to be fairly passionate about her job which she described as an emotional rollercoaster given the situations that have to be dealt with constantly. Ms Fullgrabe understands that rental properties are probably a landlord’s second biggest investment and when dealing with arrears of rent or other payments, things can get quite emotional. People who are in arrears do not want to lose their home and they are generally in a financial crisis. She said that they get no real training about this emotional rollercoaster. She said that she was able to work as a property manager after doing four days’ training. The position was the same for Duncan. She does not really understand the concepts of professionalism. She said that they just had to do their job.
Particular 5
Duncan gave some background of difficulties she was having with the South Australian Police Department. She alleged a number of matters that were otherwise unverified such as being arrested nine times, having false accusations of criminal behaviour made against her, facing up to six (false in her view) charges and other difficulties that she had had with the police.
Duncan had earlier made a complaint to the police about domestic violence by the husband against the wife at the Hillier property. Within a week the deaths had occurred. On the day, she heard on the radio that there was a triple homicide in that area, her office called police and they were told that the property did not involve them. For reasons which she did not explain she went to the property and was shocked to see that the property involved was one of her properties.
Duncan gave evidence that she did not know that Channel 7 were filming her or recording what she was saying.[27] She said she was in shock. I have viewed the video footage on a number of occasions. I am unable to accept this evidence. I am satisfied that it was very obvious that she was being filmed and that a microphone was placed inside the car adjacent to her mouth and was recording everything she was saying. Her evidence is not reasonably possibly true and it has no credibility.
[27] T40.8-9.
In cross-examination, Duncan denied seeing the microphones in front of her during the recording of her interview on television at Hillier. I am unable to accept that denial. It is not reasonably possibly true. She then said that she knew the people there were reporters and she did not think she was being recorded. I again reject that assertion as not being reasonably possibly true. She also agreed that she had released confidential information that she only had in her role as property manager. She then alleged that there was nothing wrong with releasing that confidential information, given her allegation that somehow she knew that the information had already been released. She was unable to say how she could have known that at the time.[28] I reject that evidence and it is not reasonably possibly true. It is not possible for Duncan to have known (if it was the case) that the name of the tenant had already been released. In the end, she said that she was not thinking at all.[29] I think that is true. I am satisfied that she consciously released confidential information about the tenants being on Centrelink, their marital status and about the children. She thought it was appropriate to share this information.[30]
[28] T86.19-T87.10.
[29] T87.31.
[30] T90.26.
Consideration of the issues
Section 44 of the Act reads as follows:
44—Complaints
The Commissioner or any other person may lodge with the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action under this Part.
The subject of this application is a Complaint made by the Commissioner under this section. The Commissioner contends that the content of the Complaint constitutes grounds for disciplinary action under this part. A cause for disciplinary action against an agent is prescribed in s 43 of the Act. That section reads as follows:
43—Cause for disciplinary action against agents, sales representatives or property managers
(1)There is proper cause for disciplinary action against an agent, sales representative or property manager if—
(a) any registration of the person under this Act was improperly obtained; or
(b) the person has acted contrary to an assurance accepted by the Commissioner under the Fair Trading Act 1987; or
(c) the person has acted contrary to this Act or the Land and Business (Sale and Conveyancing) Act 1994 or otherwise unlawfully, improperly, negligently or unfairly; or
(d) in the case of an agent who has been employed or engaged to manage and supervise an incorporated agent's business or an agent's place of business, the agent or any other person has acted unlawfully, improperly, negligently or unfairly in the course of managing or supervising, or being employed or otherwise engaged in or at that business or place of business; or
(e) events have occurred such that the person would not be entitled to be registered as an agent, sales representative or property manager if the person were to apply for registration.
(2)Disciplinary action may be taken against each director of a body corporate that is an agent if there is proper cause for disciplinary action against the body corporate.
(3)Disciplinary action may not be taken against a person in relation to the act or default of another if that person could not reasonably be expected to have prevented the act or default.
(4)This section applies in relation to conduct occurring before or after the commencement of this Act.
Section 8 of the Act prescribes the entitlement of a person to be registered as an agent. It reads as follows:
8—Entitlement to be registered as agent
(1) A natural person is entitled to be registered as an agent if the person—
(a) has—
(i) the qualifications required by regulation; or
(ii)subject to the regulations, the qualifications that the Commissioner considers appropriate; and
(b) has not—
(i) been convicted of an indictable offence of dishonesty; or
(ii)during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; and
(c) is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(d) is not an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; and
(e) has not, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors—
(i) when the body was being so wound up; or
(ii)within the period of six months preceding the commencement of the winding up; and
(f) is a fit and proper person to be registered as an agent.
(2) A body corporate is entitled to be registered as an agent if—
(a) the body corporate—
(i)is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(ii)is not being wound up and is not under official management or in receivership; and
(b) no director of the body corporate—
(i) has—
(A) been convicted of an indictable offence of dishonesty; or
(B)during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; or
(ii)is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; or
(iii)has, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors—
(A) when the body was being so wound up; or
(B)within the period of six months preceding the commencement of the winding up; and
(c) each director of the body corporate is a fit and proper person to be the director of a body that is registered as an agent.
The Commissioner emphasises that a natural person who registers as an agent must be a fit and proper person pursuant to s 8(1)(f) of the Act.
On the contentions of the Commissioner about whether there is a cause for disciplinary action, the Commissioner points to the content of s 43(1)(c) and (e) of the Act. It is alleged that Duncan has acted improperly and that events have occurred such that Duncan would not be entitled to be registered as an agent if she were to apply for registration. This is because she is not a fit and proper person. Arguably, she is therefore unfit to be appointed as an agent if she applied now for such appointment. This is what may be called a nunc pro tunc provision. There is no contest that at all material times under s 4 of the Act, Duncan was a person who was an agent and who dealt with land.[31]
[31] See also s 3 of the Act.
Did Duncan act improperly?
Turning first to s 43(1)(c), the question is whether Duncan has acted improperly. Section 3 is the dictionary provision of the Act, but there is no definition of ‘improper’ or ‘improperly’. Therefore, the meaning of the word ‘improperly’ falls to be considered under common-law principles. Consistent with the usual rules of interpretation, the word ‘improperly’ is to be given its natural and ordinary meaning.[32] In O’Connell v Palmer,[33] the Full Court of the Federal Court (von Doussa, O'Loughlin and Branson JJ) adopted the dictionary definition of the word ‘improper’ with their Honours stating:
The Macquarie Concise Dictionary gives the word "improper" the following meanings:
1. not proper; not strictly belonging, applicable or right: an improper use for a thing.
2. not in accordance with propriety of behaviour, manners, etc: improper conduct.
3. unsuitable or inappropriate, as for the purpose or occasion: improper tools.
4. abnormal or irregular.
The New Shorter Oxford English Dictionary includes in its treatment of the word "improper" the meaning "unbecoming, unseemly, indecorous". In our view the word "improper" appearing as part of the expression "improper conduct" in reg 18(1)(d) of the Discipline Regulations is used in the second sense of the Macquarie Concise Dictionary definition set out above. That is, we conclude that reg 18(1)(d) is directed at conduct which may be regarded as lacking propriety or as unbecoming or unseemly in the circumstances.[34]
[32] R v Teachers Appeal Board; Ex-parte Bilney (1984) 35 SASR 492 at 494 per Walters J.
[33] (1994) 53 FCR 429.
[34] Ibid at 434 [A]-[C].
Expressions such as ‘lacking propriety’, or ‘unbecoming’ or ‘unseemly in the circumstances’ are words of general application. They will cover a broad range of conduct and in general, a court will not read down such words in a narrow fashion. Instead it will give them their natural and ordinary meaning, having regard to the circumstances in which a particular person is operating in the background of the application of an objective standard. There are other forms of expression used to explain the meaning of ‘improper’ such as: ‘not in accordance with propriety of behaviour, manners etc or abnormal or irregular’ or ‘which, viewed objectively would be regarded by reasonable persons as falling below the standards of conduct to be expected of (councillors) in that is has a tendency to bring into disrepute the (civic office held by councillors).’[35]
[35] See in general Health Care Complaints Commission v Jiang [2018] NSWCATOD 78 at [67].
The views that I have expressed in relation to the objective standards to be applied according to these circumstances have been informed by the decision of the High Court in R v Byrnes & Hopwood.[36] The meaning of the expression ‘improper’ is not fixed by some common or uniform and inflexible standard applying equally to every person. The meaning of the word has to be determined by reference to the particular duties and responsibilities of the person whose conduct is impugned. Therefore, the test must be objective and must be judged by the standard of the person in the position of Duncan in these circumstances. In that context, intention is irrelevant and the question is the objective assessment of the whole of the conduct of the person about whom the complaint has been lodged.[37]
[36] (1995) 183 CLR 501 at [24]-[25].
[37] A Solicitor v Counsel of the Law Society of New South Wales (2004) 216 CLR 253 at [21]-[22].
I earlier referred to the ‘nunc pro tunc’ aspect of the question whether an agent is a fit and proper person. That question is to be determined by me based on the whole of the information put before the Court at the time of the hearing.
It is well settled[38] that the meaning of the expression ‘fit and proper person’ must be decided within the context, whilst having regard to the activity engaged in by the person so that it will always be decided in context of the activities of the person in those circumstances. In that context, present conduct and objective likelihood of, for example, future conduct, will be determinative in a finding that a person is not ‘fit and proper’.
[38] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 339.
In Sobey v Commercial & Private Agents Board[39] Walters J said as follows:
... [A] person, who holds a licence as a commercial agent … is in a minor, though practical, way held out as a person who is authorized to take some part in the administration of justice and who is capable of performing duties not dissimilar from those performed by bailiffs employed in the courts system. Moreover, persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held. Any member of the public engaging the services of, or having business dealing with, a person holding a licence as a commercial agent, a commercial sub-agent or a process server, is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licensed to perform. Hence, it seems to me that the object of the legislation is twofold: first, to control, regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the Act, and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them …
…
[W]hat is meant by that expression [fit and proper person] 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 safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.[40]
[39] (1979) 22 SASR 70 at 74, 76.
[40] Ibid at 76.
In the end, the question for my consideration is whether the conduct of Duncan as an agent manifested qualities (or the absence thereof) incompatible with the carrying on by her of the occupation of an agent, which qualities are essential for the carrying on of that occupation.[41]
[41] Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279 at 290; Hoile v Medical Board (SA) (1960) 104 CLR 157.
I consider that the appropriate test is to objectively assess the conduct complained of in the context of Duncan’s role and in the circumstances in which she was operating.
I am so satisfied from the evidence and, as I have indicated above, Duncan is not in any sense remorseful for her actions and views her role as, at times, requiring her to behave in the way that she did. She thought that, as an agent, she was justified in her behaviour. I accept that Duncan operates in a difficult commercial environment. The northern suburbs of Adelaide present significant socio-economic challenges. This is clear from the evidence given by Duncan and by other agents called on her behalf. It may be accepted that this is the background in which the behaviour of Duncan as an agent is to be assessed. The issues arising in the matters relating to Mr D and Mr C are symptomatic of these challenges. I have considered Duncan’s behaviour as an agent in the whole of that background. Having done so, the evidence satisfies me that Duncan, as an agent, was incapable of properly operating within the system established under SACAT. This is because I am satisfied that, as an agent, she has deliberately refused to temper her conduct in her advocacy of her clients’ causes in the circumstances of the operation of the Tribunal.
Duncan was continuously requested to behave in a way that would be well understood by the ordinary person, in order to allow the Tribunal member to control proceedings, to give both parties a say and to canvas the real issues in the proceedings. Duncan’s response was to say that she thought SACAT was a useless body that is incompetent and run by morons. That attitude became apparent in the communications which Duncan then sent to the Tribunal and its members subsequent to those attendances. On every occasion, she took the opportunity to criticise those persons in the most caustic and derogatory way. These were not merely general criticisms. They were deliberately pointed and with the general aim of justifying her particular view about the Tribunal, its members and its operations. That behaviour was then compounded by her communications with members of the Tribunal staff. I also refer to the evidence of Ms Richmond. That form of communication and the content of her emails was completely unwarranted, unacceptable and highly inappropriate.
This is not to say that the points of view that Duncan may have held about, for example, the performance of the tenants Mr D and Mr C were not justified; that is not the issue here and is a distraction to the task. The evidence makes clear that in relation to both of those persons, orders were ultimately made by the Tribunal, as sought by Duncan, which of course substantiates the appropriateness of the approach of SACAT. Duncan has obtained from the Tribunal the orders that she sought. As an agent, she was not prepared to participate in the process of the Tribunal in the way that it prescribed. This is made clear in the letter from the Honourable Justice Parker.
And it is not an answer for Duncan to say that she no longer attends those hearings or participates in telephone conferences. She would not accept that this decision was based in a large part upon her recognition of her failure to properly behave at those hearings. Rather, she considered that this was an avoidance strategy.
Conclusion
In the end, I consider that based upon the whole of the evidence before the Court, as an agent Duncan has behaved in an improper way. The impropriety of her conduct relates to her appearances before Mr Stevens, before Mr Thomas, the content of her emails to SACAT, the content of her telephone conversations with SACAT employees and the correspondence that she entered into with others, which quite inappropriately made unfair, inaccurate and unfounded criticisms of SACAT.
I consider that position is compounded by a number of other features. The first is the manner in which Duncan dealt with the staff of SACAT and then the staff of the bonds scheme when she attempted to obtain repayments of bonds. Although I would not accept that the conduct which she displayed towards Ms Richmond would necessarily have been sufficient to constitute a finding of improper conduct, I may take that conduct into account when making my decision. The same generally applies to a large amount of this conduct.
I am satisfied, having read all the transcript on a number of occasions and having listened to the audio of the hearings before SACAT on numerous occasions, that as an agent, Duncan did not display those qualities necessary for a person taking part in this system. This is because she was unable to represent the interests of her principals without causing increasing conflict and without being completely disrespectful and insulting towards the Tribunal and other participants in the system, which put at significant risk her ability to act on behalf of her principals. I find the complaint proven on that basis alone.
I have also taken into account other evidence. I have given consideration to the dealings between Duncan and Mr Bolto. I would classify those dealings as regrettable and there seems to have been a failure by both of them to obtain a clear understanding of the position of the other. However, I am not satisfied that those matters rise to the same level as, for example, the conduct of Duncan before the Tribunal, in her correspondence with the Tribunal, in her correspondence about the Tribunal and in her behaviour in relation to the bond scheme.
I have earlier canvassed the conduct of Duncan at the Hillier property in detail. I am satisfied from the evidence that I have seen and the viva voce evidence of Duncan on the topic that at the time she was being interviewed by both of the television stations, she was aware that what she was saying was being recorded, she was aware that the interview was being filmed and of the likelihood that some portion of it would be used in a news report. I am also satisfied that at the time that she approached the police officer who was blocking the entrance to the property, she was well aware what she was saying was being recorded and that the event was being filmed. I am therefore also satisfied that as an agent Duncan deliberately released confidential information about the name of the tenant at the property. When she did so, she was or ought to have been aware that the name of the tenant would become publicly available and so the product of her breach of confidentiality would be disseminated generally. This also can be said for the information that she gave in relation to the tenants generally.
I am also satisfied that in speaking to the police officer, Duncan deliberately used the most extraordinarily profane language in an attempt to humiliate the police officer, embarrass him in public and interfere with the discharge of his duties. I am satisfied that her actions were an attempt by her to draw some attention to herself for reasons that are not clear. I do not need to determine what the reasons may have been.
I am also satisfied that in so behaving, that is in speaking in the way that she did to the news reporters of both television stations and in the way that she spoke to the police officer, were further examples of conduct which was, in all of the circumstances, improper. She was at the Hillier property in her role as an agent. Everything that Duncan did there must be seen in that context and background. Her behaviour fell well below the appropriate standard of an agent and was improper.
In light of those findings, I reject entirely as lacking any credibility or truthfulness the suggestion by Duncan in her evidence that she did not see the microphones of the television reporter, or that she was unaware that what was occurring was being filmed. I am satisfied beyond reasonable doubt that she was aware that what was being said was being recorded and filmed. This includes the vile language and the profanities which she directed to the police officer. Her evidence on the topic is not reasonably possibly true.
I reject as being reasonably possibly true any suggestion by Duncan that when acting as an agent she did not call government workers ‘lazy bitches’, or that she did not tell Ms Richmond of the bond section ‘do your fucking job.’
I accept as proved beyond reasonable doubt, the content of particular 6 of the Complaint and I accept as proved beyond reasonable doubt that the attitude that Duncan brought to her role as an agent, when dealing with the government department, was that she was willing to insult the government department and those employees of the government department with whom she was dealing in a most capricious and random way. I reject her evidence on those topics and I find her evidence to the contrary to be not reasonably possibly true.
Duncan was given a number of opportunities by me to address these issues in evidence. She refused to do so. I am satisfied that, on issues of fairness, she was given every opportunity to understand and address these matters but refused to do so.
I further reject as not being reasonably possibly true Duncan’s insistence that in her role as an agent she was harshly and unfairly treated before the Tribunal. I am satisfied that she used this approach as a justification for her behaviour and this further demonstrated a complete absence of insight about her behaviour. This absence of insight is a disturbing feature of the evidence before me.
I am satisfied in those circumstances that the conduct of Duncan as an agent has not been professional and it is not the conduct of a fit and proper person. I do not accept that any special accommodation should be made for a person such as Duncan, even if she is dealing with difficult circumstances in the northern suburbs of Adelaide. Viewed objectively, there is no basis which justifies that conduct which, if accepted, would fail to address the accepted standards as they are explained in the authorities to which I have earlier made reference. I come to that conclusion even though I accept, as I have, the fact that there are landlords and other agents who both admire and are willing to give evidence on behalf of Duncan. As I have now said on a number of occasions, the issue before me is not the conduct of Duncan as an agent for those persons for whom or with whom she has had no issue. The matter for my consideration is the conduct of Duncan as has been proved before me to my satisfaction.
Turning then to the particulars within the Complaint, I am satisfied that each of the particulars within particular 1 of the complaint have been proved to my satisfaction beyond reasonable doubt. I am satisfied that the member, Mr Stevens, terminated the telephone call conference because of Duncan’s offensive and abusive behaviour towards the Tribunal, towards him and towards the other person involved in the telephone call. In relation to the event of 16 July 2015, I do not accept the version put forward by Duncan as reasonably possibly true. I consider it to be manifestly incorrect.
In relation to particular 2, I find the conduct complained of proved beyond reasonable doubt. However, as I have said, I would not be prepared to take that matter into account in making my decision, apart from it forming part of the background evidence.
In relation to particular 3, I find the conduct complained of proved beyond reasonable doubt. I reject the factual assertions made by Duncan in relation to that conduct as being reasonably possibly true. I find that within that telephone hearing, Duncan made several personal insults directed towards the tenant, rudely questioned the competence of the SACAT member, persistently interrupted the SACAT member despite requests to be quiet and admitted that she was enraged with anger but was prepared to proceed with the telephone call and personally insult the member. I reject as being reasonably possibly true, the justifications put by Duncan to me as the reasons for her behaviour.
In relation to particular 4, I find each of the particulars in paragraphs 4.1 to 4.4 are proved, to my satisfaction, beyond reasonable doubt. I am satisfied that Duncan circulated emails criticising SACAT and the government department and the member Mr Thomas as being incompetent. She criticised the method of reasoning of the Tribunal as being idiotic, alleged that the Tribunal member had breached the Act, alleged bias against her client and alleged that nothing being done by Justice Parker was responsible, correctly done or competently done.
In relation to particular 5, I am satisfied beyond reasonable doubt of the proof of the allegations contained in paragraphs 5.1 to 5.6. I reject as being reasonably possibly true the explanation proffered by Duncan. I find that Duncan was aware that everything she said was being recorded and filmed and that she behaved in a way to draw attention to herself, such that it would be recorded and filmed.
In relation to particular 6, I am satisfied beyond reasonable doubt that each of the emails there described were sent and received. Duncan intentionally circulated these emails with the intent to criticise the government department, to criticise those persons working within it and to claim that such persons are overpaid and do not work.
In relation to particular 7, I am satisfied that the social media posts there described were posted and contained the content of paragraph 7.2.1 which reads:
SACAT you are an incompetent bunch of fucktards who does not apply the law or abide the ACT!!!! FUCKING BUNCH OF IDIOTS!!!!!!
For all of these reasons, I am satisfied beyond reasonable doubt that as an agent, Duncan has acted improperly. I am satisfied that Duncan was previously warned about her behaviour in 2012 by Judge Hannon and in 2016 by the (then) President, the Honourable Justice Parker. I am satisfied beyond reasonable doubt that despite those warnings, she did not change her behaviour as an agent, that these proceedings have not led her to reflect upon her behaviour, to gain any insight into her behaviour or to change it.
In the evidence of Duncan, I have not been able to identify any indication of remorse, insight or steps taken to ensure that the behaviour is not repeated.
Result
The purpose of these proceedings is as described by Doyle CJ in Craig v The Medical Board of South Australia[42] at [41]-[44]:
[41] The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[42] In NSW Bar Association v Evatt (1968) 117 CLR 177, in a much cited passage, the High Court found that the conduct in question demonstrated that the practitioner was unfit to practise as a barrister, and then went on to say (at 183-184):
The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Association (1960) 104 CLR 186 at 201, 202. The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
Accordingly, the Supreme Court was, clearly, in error in deciding to suspend the respondent from practice rather than to disbar him, and it is the duty of this Court to correct that error.
[43] Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, this passage makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case.
[44] This statement by the Court has often been cited as stating the basis upon which orders are made by professional disciplinary tribunals. A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
[42] (2001) 79 SASR 545.
Having found improper conduct of Duncan as an agent, it is my role to make orders which I consider sufficient to protect the public in order to ensure the maintenance of proper professional standards by participants in the agency field such as Duncan. I am also required to consider the protection of the public and of the relevant profession by making orders that will assure the public that appropriate standards are being maintained within that profession. That is the approach that I intend to take here.
I turn to the question of the submissions on sanctions. The Commissioner contended this because any sanction that I impose is not aimed at punishing the defendant, it has two aspects. The first is that it might be less significant if the punishment were the catch cry. Equally, in the event that the protection of professional standards was and is the foundation of the sanction, then it would be appropriate to impose a sanction that is more significant. This is because considerations of mercy and personal circumstances play a correspondingly lesser role. The Commissioner focussed upon the protection of the public in the broader sense of maintaining proper professional standards and upholding public confidence. Where the only appropriate order is cancellation, then personal circumstances or hardship would have a limited role to play. The Commissioner submits that cancellation and disqualification is the only order that can fulfil the necessary objectives of the protection of the public in the broadest sense. The Commissioner bases his contentions on the fact that Duncan has displayed a lack of insight throughout the proceedings. She also displayed a lack of candour with the Court, which is relevant to the question of seriousness of the conduct but also the likelihood that such conduct would be repeated in the near future. In 2012, Duncan had been warned about the potential consequences of her behaviour by Judge Hannon and then again in 2016 by the Honourable Justice Parker. The Commissioner submits that an order of cancellation until further order would permit the Court to consider a future application for reregistration.
Duncan submitted that she had been involved in at least 650 SACAT hearings and complaints about these appearances were an aberration. She submitted that I should take into account all of the evidence led on her behalf, and this includes satisfied agents and owners. I should also take into account that she was advocating on behalf of a client in a strong and forthright manner. She should not be judged by the standard of conduct of a legal practitioner in a court of law. She submitted that agents are not trained to deal with SACAT, the hearings are conducted in difficult circumstances and this is compounded by hearings being called on urgently.
Duncan also submitted that the incident at the Hillier address can be understood as part of an ordinary human reaction to the circumstances. I am unable to accept that submission. I am satisfied for the reasons already expressed that Duncan took advantage of the circumstances to draw attention to herself.
Duncan also pointed to the fact that on the evidence before the Court, there are no dissatisfied customers and thus SACAT does not require protection from her behaviour. This is apparent from the letter from the Honourable Justice Parker, who reminded Duncan that the members of SACAT would take their own steps in order to protect the processes of SACAT. She also pointed to the fact that she had excluded herself from SACAT hearings, relying upon character evidence and submitted that she was adequately equipped to discharge her professional obligations. Her standing within the profession means that she has a right to earn her living. She accepts that the standards as described in the Code as a standard by which everyone works, but it should be a ‘cloth that is cut to suit’.
I have taken into account all of these submissions. I find that for all the reasons that I have discussed, the conduct of Duncan as an agent is very serious. It is conduct which is improper and conduct such that Duncan would not be entitled to be registered as an agent if she were to apply for registration, because she has shown that she is not a fit and proper person to be registered as an agent.
I accept that as a result of this conduct a sanction should be imposed upon Duncan. I consider that a fine and a reprimand are, as I set out below, sufficient sanction and will send a message both to Duncan and also the community at large, that her serious failures to comply with the legislation are not acceptable. In forming my views, I have taken into account all of the evidence led on behalf of Duncan about her conduct as an agent. I have also taken into account her lack of remorse and her refusal to accept responsibility for her actions. I have also taken into account her lack of candour concerning the events at Hillier.
In my opinion, the public can be properly protected by the following orders:
1The defendant is reprimanded.
2The defendant is fined the sum of $7,500.
3Conditions are imposed upon the defendant’s registration as an agent in the following terms:
a.She is to complete a training course approved by the Commissioner in relation to anger management, her responsibilities under the Act, the requirement for ethical behaviour as an agent including dealing with any conflict between principal and tenant;
b.She is to nominate such a training course for the Commissioner’s approval within 60 days of this date;
c.She is to bear the costs of the training course herself;
d.She is to attend the training course in person on a fulltime basis; and
e.She is to complete the training course within a reasonable time, such time to be determined by the Commissioner but based upon the suggested time to complete the course and any other relevant factors as assessed by the Commissioner in the Commissioner’s absolute discretion.
4Duncan is prohibited from operating as a Licensed Land Agent for a period of six months from the date of this order or until she has completed the training course required by order 3 above, whichever is the longer.
5Duncan is prohibited from being the Director of any company which is a corporate agent for a period of six months or until she has completed the training course required by order 3 above, whichever is the longer.
6I will hear the parties as to consequential and other orders.
12
1