COMMISSIONER FOR CONSUMER PROTECTION and MURRAY
[2017] WASAT 137 (S)
•26 FEBRUARY 2018
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| ACT | : | REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) |
| CITATION | : | COMMISSIONER FOR CONSUMER PROTECTION and MURRAY [2017] WASAT 137 (S) |
| MEMBER | : | JUSTICE J C CURTHOYS (PRESIDENT) MS R MOORE (MEMBER) MR R ADAMS (SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 26 FEBRUARY 2018 |
| FILE NO/S | : | VR 4 of 2017 |
| BETWEEN | : | COMMISSIONER FOR CONSUMER PROTECTION Applicant |
| AND | ||
| OLIVIA LORETTA ANNE MURRAY Respondent | ||
| Catchwords: |
Sales representative - Proper cause - Disciplinary action - Dishonest conduct
Legislation:
Real Estate and Business Agents Act 1978 (WA), s 44(3), s 47(1)(b), s 51(2),
s 102(1)(b), s 102(6), s 103(3), s 103(b), s 103(4), s 103(4)(c)(iii)
State Administrative Tribunal Act 2004 (WA), s 87(1)
[2017] WASAT 137 (S)
Result:
Respondent disqualified from applying for registration as a real estate sales
representative for two years and six months
Respondent to pay Commissioner for Consumer Protection's costs
Summary of Tribunal's decision:
These reasons determined the appropriate penalty to be applied following the Tribunal's decision in Commissioner for Consumer Protection and Murray [2017] WASAT 137 that Ms Olivia Loretta Anne Murray had breached s 44(3) and s 51(2) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) and clause 7 of the Code of Conduct for Agents and Sales Representatives 2011.
Ms Murray did not take part in the original hearing or in the penalty The Tribunal concluded that Ms Murray's conduct involved a deliberate and calculated breach of proper professional and ethical standards of behaviour and that such conduct, which also involved serious dishonesty, must be addressed by a substantial penalty in order to maintain public confidence in the standards of the profession.
phase.
Therefore the Tribunal concluded that Ms Murray was not a fit and proper person to hold registration as a sales representative and should be disqualified from applying for registration as a sales representative for a period of two years and six months. In addition as Ms Murray's conduct was considered egregious, the Tribunal ordered that she pay the Commissioner's costs.
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Department of Commerce |
| Respondent | : | N/A |
[2017] WASAT 137 (S)
Case(s) referred to in decision(s):
A Legal Practitioner [2013] WASAT 37 (S)
A Solicitor v Council of the Law Society of NSW [2004] HCA 1;
(2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Commissioner for Consumer Protection and Murray [2017] WASAT 137
Commissioner for Consumer Protection and The King And I Pty Ltd
(ACN 060968809) [2016] WASAT 125 (S)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Love [2014] WASC 389
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
New South Wales Bar Association v Cummins [2001] NSWCA 284;
(2001) 52 NSWLR 279
Paridis v Settlement Agents Supervisory Board [2007] NSWCA 284;
(2001) 52 NSWLR 279
Re A Practitioner (1984) 36 SASR 590
Real Estate and Business Agents Supervisory Board and Morgan Realty Pty Ltd
& Ors [2010] WASAT 161
Real Estate and Business Agents Supervisory Board v Landa
[2009] WASCA 191
| Veterinary | Surgeons | Investigating | Committee | v | Howe | (No | 2) |
[2003] NSWADT 159
[2017] WASAT 137 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 The Tribunal determined in Commissioner for Consumer Protection and Murray [2017] WASAT 137 (Decision) that Ms Olivia Loretta Anne Murray breached s 44(3) and s 51(2) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) and clause 7 of the Code of Conduct for Agents and Sales Representatives 2011 (Code of Conduct).
2 The Commissioner for Consumer Protection (Commissioner)
submits that the appropriate penalty in this matter is that Ms Murray be disqualified from being a registered sales representative for a period of between two to three years or in the alternative, pays a global fine of between $3,000 to $4,000 in respect of the contraventions.
Ms Murray did not take part in the original hearing or in the penalty
phase.
In parts of these reasons the Tribunal has adopted the Commissioner's written submissions.
Tribunal's disciplinary powers
Ms Murray held a certificate of registration as a sales representative until it expired on 25 November 2016.
6 Section 102(6) of the REBA Act provides that notwithstanding the
expiry of a certificate of registration, an allegation of proper cause for disciplinary action regarding a sales representative may be made not later than 12 months after expiry and the Tribunal may exercise the powers conferred in s 103(4) other than the powers of suspension or cancellation.
7 The Tribunal's findings against Ms Murray in the Decision means
that there is proper cause for disciplinary action pursuant
to s 103(4)(c)(iii).
Section 103(3) of the REBA Act provides:
If, in a proceeding commenced by an allegation under section 102(1) against a sales representative, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things -
(a) reprimand or caution the sales representative; (b) impose a fine not exceeding $3 000 on him;
[2017] WASAT 137 (S)
(c) suspend or cancel his registration and, in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from being registered;
The Tribunal can impose a separate fine for each allegation (Real Estate and Business Agents Supervisory Board v Landa
[2009] WASCA 191 (Landa) at [15]). The Tribunal also has discretion to impose a global fine where there are multiple allegations (Landa at [22]). The maximum penalty for each allegation is $3,000 (REBA Act s 103(3)(b)). The total maximum fine is $9,000.
General matters relating to sanctions
10 The determination of penalty is discretionary. The approach to the
penalty imposed by the Tribunal was set out by Buss P in Khosa v Legal
Profession Complaints Committee [2017] WASCA 192 (Khosa) at [44].… The determination of the appropriate penalty option or options was not
a mechanical process. The Tribunal had to balance competing considerations and choose between the various penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique 'right' answer which was able to be identified by the application of principle. See, generally, Guss v Law Institute of Victoria Ltd [2006] VSCA 88 [28] (Maxwell P; Callaway & Chernov JJA agreeing); Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1 [34] (Maxwell P), [41] (Chernov JA), [47] (Nettle JA); Papps v Medical Board of South Australia [2006] SASC 234 [52] (Gray J; Nyland & Vanstone JJ agreeing); Stirling v Legal Services Commissioner [2013] VSCA 374 [63] - [68] (Warren CJ, Neave JA & Dixon AJA).
General principles in relation to penalty
11 In Khosa the Court of Appeal stated the principles relating to penalty in respect of practitioners. Although Khosa was a legal practitioner rather than a real estate sales representative, there is no relevant difference in the application of the principles enunciated in Khosa.
Buss P stated at [37]-[42]:
It is well-established that the purpose of disciplinary proceedings against a legal practitioner is to protect the public. The purpose is not to punish the practitioner in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practice from practising or by the making of orders which will secure the maintenance of proper professional standards. Further, both the public and the legal profession will be
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protected by orders which will assure the public and members of the legal profession generally that appropriate standards are being maintained within the profession. See Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286 (Dixon CJ); Re Maraj (a legal practitioner) (1995) 15 WAR 12, 24 - 25 (Malcolm CJ; Kennedy & Franklyn JJ agreeing); Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [41] (Doyle CJ; Williams & Martin JJ agreeing).
In The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, Barwick CJ, Kitto, Taylor, Menzies and Owen JJ said that the court's power to discipline a barrister is 'entirely protective' (183). There is no element of punishment involved even though the exercise of the power may involve great deprivation to the person disciplined (183 - 184).
In Craig, Doyle CJ examined the basis upon which orders are made by professional disciplinary tribunals and the distinction between orders made for the protection of the public, on the one hand, and the imposition of punishment under the criminal law, on the other.
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.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to
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other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for [44] - [48].
In In re a Practitioner (1984) 36 SASR 590, King CJ (Zelling & Jacobs JJ agreeing) made observations as to when it may be proper for a court, in exercising its disciplinary function in relation to a legal practitioner, to make an order for suspension rather than an order for the removal of the practitioner's name from the roll. His Honour said:
The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner (593).
Jacobs J noted that 'the main practical difference between suspension and striking off is the element of certainty' (593). His Honour explained:
A practitioner who is suspended, for however long a period, has the right to resume practice when the period of suspension expires; a practitioner who is struck off must, if he desires to resume practice, apply to be re-admitted, with no certainty as to the fate of any such application (593).
An order for suspension of a legal practitioner must be based upon a view that at the end of the period of suspension the practitioner will be fit to practice. See Law Society of New South Wales v McNamara (1980) 47 NSWLR 72, 76 (Reynolds JA).
Murphy JA and Beech JA in Khosa stated at [187]-[195]:
The following observations, which are not intended to be exhaustive of the topic, are of relevance in the present context.
The court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.
[2017] WASAT 137 (S)
The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in such conduct, as well as personal deterrence.
In New South Wales Bar Association v Hamman, Mason P said, with reference to the decision of Giles AJA in Law Society of New South Wales v Foreman (No 2):
Giles AJA described the basis of the court's jurisdiction: at 470-1. Citing Bannister and other cases, he referred to the protective function of general deterrence in the following terms (at 471):
'But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.'
These references to the public's perception of the court's reaction to the professional misconduct do not make the court hostage to the public's assumed sense of anger at the misconduct uncovered. The court must be satisfied that its enunciated views give proper weight to widely and reasonably held public attitudes to practitioners in the context of the administration of justice generally and in the particular case.
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response.
[2017] WASAT 137 (S)
A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.
A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.
Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally.
(Citations omitted)
There is no relevant difference between principles expressed in
the judgments.
Twelve matters for consideration
15 The considerations which apply to penalty in disciplinary cases were
stated by the Tribunal in Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S) (Wells). The Tribunal set out twelve matters which may require consideration in determining penalty. Those matters are interrelated and are not mutually exclusive or exhaustive. The twelve matters for consideration include:
1) any need to protect the public against further misconduct by the real estate sales representative;
2) the need to protect the public through general deterrence of other real estate sales representatives from similar conduct;
3) the need to protect the public and maintain public confidence in the profession by reinforcing a high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession such that, even where there may be no need to deter a real estate sales representative from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;
[2017] WASAT 137 (S)
4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow real estate sales representatives can place reliance on the word of the real estate sales representative;
5) whether the sales representative has breached any:
i) Act; ii) Regulations; iii) Guidelines or Code of Conduct, issued by the
relevant professional body; andiv) whether the sales representative has done so
knowingly;6) whether the real estate sales representative's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future;
8) the real estate sales representative's disciplinary history;
9) whether or not the real estate sales representative understands the error of his or her ways, including an assessment of any remorse and insight (or a lack thereof) shown by the real estate sales representative, since a real estate sales representative who fails to understand the significance and consequences of misconduct is a risk to the community;
10) the desirability of making available to the public any special skills possessed by the real estate sales representative;
11) the sales representative's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of real estate
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sales representatives and in the maintenance of proper
standards of real estate sales representative practice; and12) the Tribunal may consider any other matters relevant to the real estate sales representative's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.
Principles relevant to penalty
16 In Paridis v Settlement Agents Supervisory Board [2007] NSWCA 284; (2001) 52 NSWLR 279 (Paridis), the Court of Appeal set out the principles relevant to a breach of the Code of Conduct under the Settlement Agents Act. Those principles apply equally to a breach of the Code of Conduct under the REBA Act; Commissioner for
Consumer Protection and The King And I Pty Ltd (ACN 060968809)
[2016] WASAT 125 (S) (King And I). The relevant considerations are:
1) the conduct giving rise to the allegations and its seriousness;
2) the agent's explanation for the conduct;
3) the necessity to maintain proper standards among settlement agents and maintain public confidence in relation to the professional and ethical behaviour of agents;
4) the necessity for general deterrence; and
5) personal matters, of a mitigatory nature, including the agent's professional behaviour before and after the incidents in question, and the extent of the agent's rehabilitation.
The principles stated in Wells are consistent with those in Paridis.
The seriousness of the conduct
18 Ms Murray's conduct is detailed in the Decision as summarised in the
orders made. The conduct breached the fundamental obligations of real
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estate sales representatives in that it involved both dishonesty and the
dishonest use of funds.19 The duty to act fairly and honestly is an important duty for those in
the real estate industry and a serious failure to observe that duty warrants a significant penalty; Real Estate and Business Agents Supervisory Board and Morgan Realty Pty Ltd & Ors [2010] WASAT 161 (Morgan Realty) at [154]. The duty is enshrined not only in the Code of Conduct, but is reflected in the 'fit and proper' test which is applied to sales representatives, which includes a requirement of honesty; REBA Act s 47(1)(b).
20 Ms Murray placed her own interests ahead of her principals'
interests. This is a fundamental breach of her duty as a real estate sales representative. Ms Murray actively held herself out as being in the employment of, or acting on behalf of a licensee Neyo Pty Ltd trading as First National Real Estate Wanneroo (First National), by handing Mr Searles' business card and a booklet about renting investments properties to the Frasers when she was not employed by Mr Searles of First National at that time. Ms Murray's misleading explanations as to why the details were crossed out and replaced formed part of her conduct in holding out that she was employed by Mr Searles when she was not.
21 Further, by inserting her own bank account details into the Tenancy
Agreement, Ms Murray failed to act fairly and honestly in relation to the Frasers.
In addition, Ms Murray failed to notify the Commissioner of her change of address as soon as practicable on two occasions.
In King And I at [34] to [38] as the Tribunal held
34
Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public by reinforcing high professional standards and denouncing transgressions.
35
The conduct in this matter went to the fundamental obligations of a real estate agent and a sales representative. That is no less the case when considering the obligations of a sales representative which are, in effect, the same under the Code of Conduct as those of an agent.
36
[The sales representative's] conduct involved a deliberate, calculated and egregious breach of proper professional and ethical standards of behaviour. Dishonesty by a sales representative in
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dealings with his principal strikes at the heart of the obligations
imposed on sales representatives.37 Conduct of this nature must be addressed by a substantial penalty in order to maintain public confidence in the standards of the profession.
38 The Tribunal is satisfied that there is a substantial need to reinforce to the real estate industry the importance of the obligations owed by agents and sales representatives and that breaches of those obligations carry serious consequences.
24 Ms Murray's conduct involved deliberate and calculated breach of
proper professional and ethical standards of behaviour. Dishonesty by a sales representative in dealings with her principals strikes at the heart of the obligations imposed on sales representatives.
Conduct of this nature must be addressed by a substantial penalty in order to maintain public confidence in the standards of the profession.
In applying Wells to Ms Murray's position the Tribunal considered:
Is there a need to protect the public against further misconduct by
Ms Murray?
27 There is a need to protect the public from further misconduct of this
nature by Ms Murray. Ms Murray was dishonest both in her
representation to the Frasers and in her handling of their funds.
Is there a need to protect the public through general deterrence of other real estate agents and sales representatives?
28 There is a substantial need to reinforce the real estate industry the
importance of the obligations owed by agents and sales representatives and that breaches of those obligation carry serious consequences. Agents and sales representatives should understand that misleading and dishonest conduct such as Ms Murray's carries serious consequences.
Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
29 The public requires protection, both specifically from Ms Murray
who has demonstrated herself to be wholly unfit, and through the maintenance and reinforcement of proper standard of conduct in the industry. The public must be able to have confidence in the standard of conduct of sales representatives.
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Dishonesty
The present case involves calculated dishonesty such that no reliance could be placed on Ms Murray's word.
Breach of an Act, Regulations, Guidelines or Code of Conduct
31 Ms Murray has committed two breaches of the REBA Act and one
breach of the Code of Conduct. In addition, although it was not alleged by the Commissioner in the application, Ms Murray was convicted in the Magistrates Court of stealing $3,600 from the Frasers.
Incompetence
The conduct goes well beyond mere incompetence.
Was the incident isolated?
The conduct involved several acts of dishonesty over a period; it was
not isolated.
Ms Murray's disciplinary history
Whilst Ms Murray has no relevant prior disciplinary history, this has little weight in the context of the seriousness of the present breaches.
Whether or not Ms Murray understands the error of her ways, including an assessment of any remorse and insight (or a lack thereof) shown by her
Ms Murray did not participate in the proceedings and the Tribunal can make no allowance for remorse, insight or understanding.
Are there any special skills possessed by Ms Murray?
36 Ms Murray has no special skills in the context of the real estate
industry that would make it desirable to continue to accredit her to
the public.
Appropriate penalty
Cancellation of registration
37 The jurisdiction of the Tribunal to cancel a sale representative's
registration is exercised not for the purpose of punishing the sale representative concerned, but for the protection of the public and the reputation and standards of the profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
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38 Where an order for cancellation of a sale representative's registration
is contemplated, the ultimate question is whether the material demonstrates that the sale representative is not a fit and proper person to remain a sale representative: A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at [15].
39 A sale representative is not a fit and proper person to be a registered
sale representative and should be removed from the register where the conduct is so serious that the agent is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Legal Profession Complaints Committee and Love [2014] WASAT 84 at [17]-[18]; A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19]-[20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]-[28]); Legal Profession Complaints Committee v Love [2014] WASC 389 at [17]-[18]).
40 The practical effect of an order cancelling registration is that if a
sales representative wishes to resume practice he/she must persuade the relevant regulatory authority that he/she is truly reformed and that he/she is a fit and proper person to resume practice.
Suspension
41 Suspension is a less serious result and differs from cancellation of a
sales representative's registration because suspension is for a specified
limited period.42 The proper use of suspension is in cases where the sales
representative has fallen below the high standards to be expected of such a sales representative, but not in such a way as to indicate that the sales representative lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a sales representative (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the agent will be fit to resume practice (A Legal Practitioner (S) at [27]).
43 The practical effect of an order suspending registration is that at the
end of the period of suspension, the sales representative is entitled to
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resume practice without having to prove that he/she is a fit and
proper person.
Conclusion
44 Ms Murray's conduct is too serious to be met with a fine.
The conduct in this matter went to the fundamental obligations of a sales representative which are, in effect, the same under the Code of Conduct as those of a sales representative.
45 Ms Murray's conduct involving serious dishonesty is that it
demonstrates that she is not a fit and proper person to hold registration as
a sales representative.
Ms Murray should be disqualified from applying for registration as a sales representative for a period of two years and six months.
| Costs | |
| 47 | Generally, costs are not awarded in proceedings before the Tribunal (s 87(1) of the State Administration Tribunal Act 2004 (WA)). |
| 48 | In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30] (Roberman S), the Tribunal held that where a regulator successfully brings a complaint which justifies disciplinary action, there will usually be a strong case for the awarding of costs to that regulator. |
| 49 | Although the decision in Roberman S does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Commissioner to prosecute agents who breach the Code of Conduct is an important factor to be considered. Ms Murray's conduct was egregious and accordingly she should pay the Commissioner's costs. |
| 50 | The Tribunal accepts that the Commissioner's costs of $4,000 as set out in Attachment A to the submission are reasonable and appropriate. |
| Orders |
1. Ms Olivia Loretta Anne Murray's is disqualified from applying for registration as a real estate sales representative for a period of two years and six months from the date of this order.
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2. Ms Olivia Loretta Anne Murray is to pay the Commissioner for Consumer Protection's costs fixed at $4,000.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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