Newton v Department of Justice and Attorney-General Industry Licensing Unit
[2011] QCAT 670
•21 December 2011
| CITATION: | Newton v Department of Justice and Attorney-General Industry Licensing Unit [2011] QCAT 670 |
| APPLICANT: | Newton |
| v | |
| RESPONDENT | Department of Justice and Attorney-General Industry Licensing Unit |
| APPLICATION NUMBER: | OCR160-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 21 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Chief Executive Department of Justice and Attorney-General dated 1 July 2011 is confirmed. |
| CATCHWORDS: | REAL ESTATE AGENTS – where a real estate agent whose licence was cancelled in NSW and who was further disqualified for 10 years applied to be registered as a real estate salesperson in Queensland – whether criteria met to be a suitable person for registration in Queensland – where application refused by licensing Authority – where review sought to Tribunal – where decision of Authority confirmed Property Agents and Motor Dealers Act 2000, ss 10, 85, 86, 501 Queensland Civil and Administrative Tribunal Act 2009, ss 20, 24, 32 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Cheryl Anne Newton lodged an application with the Department of Justice and Attorney General to be registered as a real estate salesperson in Queensland in May 2011.
On 3 November 2009, Ms Newton’s New South Wales real estate agent’s licence was cancelled and she was disqualified from holding a licence or registration certificate in New South Wales until 17 November 2019. Ms Newton had held a real estate agent license in NSW from 1987 till 2009, some 22 years and was an experienced real estate agent.
Ms Newton’s Queensland application was refused by the Chief Executive on 1 July 2011 under the Property Agents and Motor Dealers Act 2000[1]. The grounds for the refusal were contained in an information notice provided to Ms Newton also dated 1 July 2011.
[1] Property Agents and Motor Dealers Act 2000, s 86.
The Chief Executive found Ms Newton not to be a suitable person on the basis of her character; the cancellation of her NSW licence; and, the disqualification period of 10 years in NSW. Ms Newton’s NSW licence was held under the Property, Stock and Business Agents Act 2002, the Act which provides the system for licensing real estate agents in NSW and the equivalent Act to the PAMD Act in Queensland.
Ms Newton has applied to review this decision to this Tribunal[2]. The purpose of a review is to produce the correct and preferable decision by way of a fresh hearing on the merits[3]. In a proceeding for a review, this Tribunal may confirm or amend the decision; set aside the decision and substitute its own; or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate[4].
[2] Property Agents and Motor Dealers Act 2000, s 501.
[3] Queensland Civil and Administrative Tribunal Act 2009, s 20.
[4] Queensland Civil and Administrative Tribunal Act 2009, s 24.
Ms Newton’s license in NSW was revoked after findings in those proceedings that Ms Newton provided conflicting advice to investigators, made a false instrument being a management agreement with a fictitious person, instructed an employee to produce a false diary note, improperly withdrew monies from a trust account, dishonestly obtained financial advantage for herself or a relative, had tenant’s rent paid into a personal account and was in breach of procedural requirements under the NSW legislation concerning unclaimed monies. These findings are contained in a Statement of Reasons dated 13 November 2009 under the Administrative Decisions Tribunal Act 1997 which was an internal review of the decision of the delegate of the NSW Director-General of Fair Trading.
Ms Newton was found not to be a fit and proper person to be involved in the direction, management or conduct of the business of a licensee in NSW.
The PAMD Act section 85 requires that a person be suitable to obtain registration as a real estate salesperson. In deciding if a person is suitable, section 86 of the PAMD Act sets out those matters that must be considered. Relevantly to these circumstances, consideration must be given to the person’s character and whether the person held a licence or registration under corresponding law that was suspended or cancelled.
Ms Newton submits that she has no intention of working in any capacity involving the control or management of trust money. The reasons of the Queensland Department of Justice refer to a letter of prospective employment provided to that decision maker offering a position as a business development manager in a real estate office dealing with clients and the public but not receipting any trust funds or having any involvement in trust accounting at all.
[10] In further support of her current application, Ms Newton responds to the findings of the delegate of the NSW Director-General of Fair Trading in his reasons dated 13 November 2009.
[11] The time for these responses has passed for Ms Newton. If she wished to challenge these findings, she should have taken steps to review this decision in 2009. The cancellation of Ms Newton’s NSW licence and the further disqualification from holding a licence until 2019 were the result of an investigation by the NSW Licensing Authority, NSW Fair Trading. In the absence of any review by Ms Newton at the time of those findings in 2009, I give weight to the findings of the independent Authority made against Ms Newton. I do not give any weight to the submissions of Ms Newton on the veracity of those findings now as Ms Newton took no steps in 2009 to review the decision or the basis of the decision.
[12] The objects of the Property Agents and Motor Dealers Act 2000 are set out in section 10 of the Act. The main object of the Act is to provide a system for licensing and regulating persons such as real estate agents and for registering and regulating persons as registered employees, that achieves an appropriate balance between —
(a) the need to regulate for the protection of consumers; and
(b) the need to promote freedom of enterprise in the market place.
[13] Another significant object of the Act is to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property. The objects are to be achieved mainly by ensuring, amongst other things, that only suitable persons with appropriate qualifications are licensed or registered.
[14] As recorded above, Ms Newton’s NSW license was revoked after findings that Ms Newton provided conflicting advice to investigators, made a false management agreement with a fictitious person, instructed an employee to produce a false diary note, improperly withdrew monies from a trust account, dishonestly obtained financial advantage for herself or a relative, had tenant’s rent paid into a personal account and was in breach of procedural requirements under the NSW legislation concerning unclaimed monies.
[15] These are serious matters that reflect on Ms Newton’s character negatively. They are so serious that not only was her licence cancelled but Ms Newton was precluded from the real estate industry as an agent for a further 10 years. Only two years of that exclusion period have passed.
[16] In making a decision in this matter I am bound to take account of the suitability criteria set out in section 86 of the PAMD Act, as did the delegate of the Chief Executive in the decision under review. I am not comfortably satisfied, in light of the very serious nature of the findings against Ms Newton in the NSW proceedings, the cancellation of her license in that State and the ongoing substantial disqualification period in that State, that allowing Ms Newton to be a registered employee in Queensland satisfies the objects of the PAMD Act, in particular the protection of consumers.
[17] For the above reasons, the decision of the Chief Executive Department of Justice and Attorney-General dated 1 July 2011 is confirmed.
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