Leach v Chief Executive, Department of Justice and Attorney-General
[2012] QCATA 271
•12 December 2012
| CITATION: | Leach v Chief Executive, Department of Justice and Attorney-General [2012] QCATA 271 |
| PARTIES: | Maree Leach trading as Team Maree Property Services (Applicant/Appellant) |
| v | |
| Chief Executive, Department of Justice and Attorney-General (Respondent) |
| APPLICATION NUMBER: | APL361-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 12 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for a stay of the decision dated 10 September 2012 in matter OCR006-12 is refused. |
| CATCHWORDS: | PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – where application made to Tribunal to determine whether grounds existed for disciplinary action against real estate agent – where Tribunal found that proper grounds did exist – where Tribunal made finding on appropriate penalty – where real estate agent sought leave to appeal, application to dismiss the proceedings and application for stay – whether there are grounds that warrant the grant of the application for a stay Property Agents and Motor Dealers Act 2000, s 496 King v Queensland Law Society Incorporated [2012] QCAT 489 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Ms Leach seeks to appeal a QCAT decision in disciplinary proceedings brought against her by the Chief Executive under the Property Agents and Motor Dealers Act 2000 (‘PAMDA’).
She filed, with her application for leave to appeal, an application for a stay under s 145(2) of the QCAT Act – ie, for an order staying the operation of the decision being appealed against until the appeal is finally decided. I made an order refusing a stay on 15 November 2012. Ms Leach has sought reasons for that decision under s 122 of the QCAT Act. These are those reasons.
Ms Leach was a real estate agent. She had a licence under PAMDA, as that Act requires.
The Chief Executive applied to QCAT to decide whether grounds existed under s 496 of PAMDA to take disciplinary action against Ms Leach. That matter was determined by a Senior Member of the Tribunal in a decision published in July 2012, in which it was held that proper grounds did exist and, in particular, that Ms Leach had been guilty of contraventions of PAMDA.
The particulars of the conduct said to warrant disciplinary proceedings included ten instances of failing to lodge a trust account audit report within the required time; providing a false or misleading document; three instances of failing to give written notice after opening a trust account; acting as a real estate agent when not licensed; failing to reconcile bank statements with the trust account cash book balance; failure to comply with a notice to produce documents; failing to act with honesty, fairness and professionalism; two instances of harassment; failing to verify material facts and relation to the purchase of a property; failing to carry out maintenance of a rental property; and, recording information without notice or justification.
These counts, and the evidence about them, were carefully traversed in the learned Senior Member’s reasons dated 23 July 2012. Some of them were dismissed. It was held, however, that Ms Leach had failed to file audit reports on each of the ten occasions alleged, and had no reasonable excuse for her failure to do so; did not give proper notice that she could opened trust accounts; acted as a real estate agent while unlicensed in the period between January and July 2007; failed to properly reconcile bank statements to her trust account cash book balance; acted in certain transactions in a way that lacked honesty, fairness and professionalism; and, conducted herself towards a tenant in a way that amounted to harassment under the Code of Conduct.
In her decision the Senior Member directed that the parties should file and exchange submissions on penalty, which the Tribunal would then determine on the papers. That occurred. On 10 September 2012 the learned Senior Member published her decision on penalty, with further reasons.
The learned Senior Member ordered that Ms Leach be reprimanded and disqualified from holding a licence or registration certificate or being an executive officer of a corporation that holds a licence or registration certificate under PAMDA until she had provided evidence to the Chief Executive that she had completed and passed courses of study in various fields, including establishing and managing trust accounts; the legal and ethical requirements of property management to complete a agency work; the legal and ethical requirements for property sales to complete agency work; and, the proper interpretation of legislation necessary to complete agency work.
Ms Leach’s application for leave to appeal, signed by her on 2 October 2012, does not make it clear whether she seeks to leave to appeal or actually appeals the original decision of 23 July 2012, or both it and the later decision on penalty of 10 September 2012. If her application includes the decision of 23 July 2012 it is possible that it has been brought out of time[1]; but no application for an extension of time has been received. Ms Leach has also filed applications to dismiss or strike out the proceedings and for an order for non-publication of some nominated documents. She also, of course, filed this application for a stay on 16 October 2012.
[1] Queensland Civil and Administrative Tribunal Act 2009, s 143(3).
On 30 October 2012 the Tribunal directed that the application for leave to appeal would be determined on the papers (unless otherwise objected to by either party) and that the parties file and exchange written submissions on a timetable ending in January 2013.
On the same day the Appeal Tribunal directed, in relation to Ms Leach’s application for a stay, that the parties file and exchange written submissions following which that application would be determined on the papers. The parties exchanged submissions and the Tribunal ordered, on 15 November 2012, that the application for a stay be refused.
The Chief Executive simply indicated, in a letter, that it did not oppose the stay. Ms Leach filed submissions seeking a stay ‘… to reduce further damage to my business during the time of the appeal’, reiterating assertions she had made in the proceedings before the Senior Member and, also, alleging that the decision by the Senior Member involved an error of law ‘… as my evidence was not taken into account correctly’. She also disputes some of the Senior Member’s findings about the evidence.
The main object of PAMDA is to provide a system of licensing and regulating persons who are real estate and letting agents (and other kinds of licensees) for the protection of consumers.
Neither party has referred to any case law concerning the criteria to be adopted in applications of this kind. It seems to me the appropriate test will be similar to that used by the Tribunal when it comes to consider applications by professionals, like legal practitioners, wishing to appeal decisions in disciplinary proceedings and, pending the determination of the appeal, seeking the right to continue to practice their profession.
Relevant principles were discussed recently in King v Queensland Law Society Incorporated [2012] QCAT 489 and, also, in the cases referred to in that decision: Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107 and Legal Services Commissioner v Madden [2008] QCA 52. Both those decisions emphasised the importance and weight to be attached to the public interest, and how that emphasis placed a discernable obligation upon an applicant for a stay to establish cogent and persuasive reasons which would overcome its obvious importance.
No doubt the continuance of Ms Leach’s business is of personal, financial and commercial importance to her. Those factors had to be weighed against the public interest. Here, the charges against her (in particular those involving non-compliance with important requirements about the proper management of trust accounts) were serious and reflected misconduct in her dealings with the public.
The central questions, then, are whether they were sufficiently serious to warrant the penalty imposed by the learned Senior Member, and whether the disqualification she ordered should, in effect, be suspended until the appeal is determined. The Senior Member’s reasons for her original decision are, with respect, detailed, apparently comprehensive, and careful. She dismissed a number of allegations the Chief Executive made against Ms Leach after an apparently close and detailed examination of the evidence around them. It is not apparent, in any event, that her original decision of 23 July 2012 contains any manifest error – but that is, of course, only a preliminary view pending the determination of the appeal.
In her reasons of 10 September 2012 the Senior Member referred to the objectives of PAMDA and the submissions from both parties. Ms Leach, in her submissions, was not prepared to accept that disciplinary proceedings were warranted and continued to contend that she had done nothing wrong, and showed neither insight nor remorse.
The learned Senior Member went on to carefully consider a range of appropriate penalties, other cases in the jurisdiction and the nature of the offending in each of them, and to weigh the level of offending revealed in them against Ms Leach’s proven misconduct here. Again, the decision exposes the learned Senior Member’s careful reasoning and (again, also, as a preliminary view) reveals no manifest error.
Ultimately, the learned Senior Member held that the offences were of sufficient seriousness to warrant steps that would ensure that the public interest was maintained and, in particular, that the public was protected from any misconduct by Ms Leach until she had undergone courses of study which, the learned Senior Member concluded, were necessary to ensure that she understood her responsibilities as a licensee and fulfilled her duties to her clients and the public. To an extent, then, the sanction imposed places the remedy in Ms Leach’s hands. The speed and level of success with which she undertakes those programs will determine how soon she can return to practice.
An application for a stay in these circumstances required the balancing exercise mentioned above. The two decisions of the Tribunal reflect conclusions that were reasonably open on the evidence before the learned Senior Member. Nothing in the submissions for Ms Leach suggests errors on the part of the Tribunal or any other element in the decision-making process, or sets out grounds of appeal that can be described as strong, or compelling. Again, of course, this is simply a preliminary view formed for the purposes of determining the stay application. Furthermore, nothing in Ms Leach’s submissions compel the conclusion that her own interests ought prevail over the public interest – a key objective emphasised in PAMDA.
For the reasons set out above, the application for a stay was refused.
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