Paridis v Settlement Agents Supervisory Board
[2007] WASCA 97
•9 MAY 2007
PARIDIS -v- SETTLEMENT AGENTS SUPERVISORY BOARD [2007] WASCA 97
| (2007) 33 WAR 361 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 97 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:134/2006 | 18 JANUARY 2007 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 9/05/07 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | CACV 134 of 2006 Application for leave to appeal dismissed CACV 138 of 2006 Application for leave to appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | KATHERINE MARIE ANNETTE PARIDIS SETTLEMENT AGENTS SUPERVISORY BOARD |
Catchwords: | Settlement agents Disciplinary proceedings Appeal against decision of State Administrative Tribunal to suspend settlement agent's licence and triennial certificate for 12 months and against order that agent pay Board's costs Whether Tribunal misconstrued the object of disciplinary action Whether Tribunal failed to take relevant factors into account in determination of appropriate disciplinary order and as a result imposed wrong disciplinary order Whether Tribunal erred in ordering agent to pay Board's costs Crossappeal against decision of Tribunal that certain allegations against agent had not been made out and against the disciplinary order imposed Principles governing the grant of leave to appeal under s 105(1) of the State Administrative Tribunal Act 2004 (WA) What constitutes a question of law within s 105(2) of the State Administrative Tribunal Act Whether s 105(13) of the State Administrative Tribunal Act applies to Board |
Legislation: | Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) Settlement Agents' Code of Conduct 1982 (WA), r 15 Settlement Agents Act 1981 (WA), s 46(2), s 49(6), s 83, s 84 State Administrative Tribunal Act 2004 (WA), s 3(1), s 87, s 105 Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148 |
Case References: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 Clyne v New South Wales Bar Association (1961) 104 CLR 186 Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 Comcare Australia v Lees (1997) 151 ALR 647 Comcare v Etheridge (2006) 149 FCR 522 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 CSR Ltd v Della Maddalena (2006) 80 ALJR 458 Dearman v Dearman (1908) 7 CLR 549 Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 Fox v Percy (2003) 214 CLR 118 Grljusich v Andrews [2003] WASCA 206 Harle v Legal Practitioners Liability Committee [2003] VSCA 133 Hill v Repatriation Commission (2005) 218 ALR 251 Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 Law Society of Tasmania v Turner (2001) 11 Tas R 1 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28 Medical Board of Western Australia v Roberman [2005] WASAT 81 (S) Medical Board of Western Australia v Roberman [2006] WASAT 152 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Motor Vehicle Industry Board v Dawson (2006) 41 SR (WA) 343 New South Wales Bar Association v Evatt (1968) 117 CLR 177 R v Lawrence [1997] 1 VR 459 Re a Barrister and Solicitor (1979) 40 FLR 1 Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 Settlement Agents Supervisory Board and Strand Settlements Pty Ltd [2005] WASAT 350 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492 Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 Waterford v Commonwealth (1987) 163 CLR 54 Wilson v Metaxas [1989] WAR 285 Xie Mian Shen v Minister for Immigation and Ethnic Affairs, unreported; Fed C of A; 9 August 1995 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PARIDIS -v- SETTLEMENT AGENTS SUPERVISORY BOARD [2007] WASCA 97 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- Appellant
AND
SETTLEMENT AGENTS SUPERVISORY BOARD
Respondent
- Appellant
AND
KATHERINE MARIE ANNETTE PARIDIS
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR J MANSVELD (MEMBER)
MS C WINSOR (SESSIONAL MEMBER)
Citation : SETTLEMENT AGENTS SUPERVISORY BOARD and PARIDIS [2006] WASAT 292
File No : VR 398 of 2005
Catchwords:
Settlement agents - Disciplinary proceedings - Appeal against decision of State Administrative Tribunal to suspend settlement agent's licence and triennial certificate for 12 months and against order that agent pay Board's costs - Whether Tribunal misconstrued the object of disciplinary action - Whether Tribunal failed to take relevant factors into account in determination of appropriate disciplinary order and as a result imposed wrong disciplinary order - Whether Tribunal erred in ordering agent to pay Board's costs - Crossappeal against decision of Tribunal that certain allegations against agent had not been made out and against the disciplinary order imposed
Principles governing the grant of leave to appeal under s 105(1) of the State Administrative Tribunal Act 2004 (WA) - What constitutes a question of law within s 105(2) of the State Administrative Tribunal Act - Whether s 105(13) of the State Administrative Tribunal Act applies to Board
Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Settlement Agents' Code of Conduct 1982 (WA), r 15
Settlement Agents Act 1981 (WA), s 46(2), s 49(6), s 83, s 84
State Administrative Tribunal Act 2004 (WA), s 3(1), s 87, s 105
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
(Page 3)
Result:
CACV 134 of 2006
Application for leave to appeal dismissed
CACV 138 of 2006
Application for leave to appeal dismissed
Category: A
Representation:
CACV 134 of 2006
Counsel:
Appellant : Mr G M Abbott
Respondent : Mr S W O'Sullivan
Solicitors:
Appellant : Hotchkin Hanly
Respondent : Settlement Agents Supervisory Board
CACV 138 of 2006
Counsel:
Appellant : Mr S W O'Sullivan
Respondent : Mr G M Abbott
Solicitors:
Appellant : Settlement Agents Supervisory Board
Respondent : Hotchkin Hanly
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55
Clyne v New South Wales Bar Association (1961) 104 CLR 186
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Comcare Australia v Lees (1997) 151 ALR 647
Comcare v Etheridge (2006) 149 FCR 522
CREEDNZ Inc v Governor-General [1981] 1 NZLR 172
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Dearman v Dearman (1908) 7 CLR 549
Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740
Fox v Percy (2003) 214 CLR 118
Grljusich v Andrews [2003] WASCA 206
Harle v Legal Practitioners Liability Committee [2003] VSCA 133
Hill v Repatriation Commission (2005) 218 ALR 251
Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Law Society of Tasmania v Turner (2001) 11 Tas R 1
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28
Medical Board of Western Australia v Roberman [2005] WASAT 81 (S)
Medical Board of Western Australia v Roberman [2006] WASAT 152
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Motor Vehicle Industry Board v Dawson (2006) 41 SR (WA) 343
New South Wales Bar Association v Evatt (1968) 117 CLR 177
R v Lawrence [1997] 1 VR 459
Re a Barrister and Solicitor (1979) 40 FLR 1
Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234
Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Settlement Agents Supervisory Board and Strand Settlements Pty Ltd [2005] WASAT 350
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
(Page 5)
TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175
Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492
Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690
Waterford v Commonwealth (1987) 163 CLR 54
Wilson v Metaxas [1989] WAR 285
Xie Mian Shen v Minister for Immigation and Ethnic Affairs, unreported; Fed C of A; 9 August 1995
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
(Page 6)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.
2 PULLIN JA: I agree with Buss JA.
3 BUSS JA: The appellant in CACV 134 of 2006 ("Ms Paridis") is the holder of a real estate settlement agent's licence that was first issued on 4 February 1992, and is the holder of a current triennial certificate. She carries on business as a sole proprietor under the name Sunset Coast Settlements.
4 By an application filed on 28 November 2005 in the State Administrative Tribunal ("the Tribunal"), the respondent in CACV 134 of 2006 ("the Board") sought disciplinary orders against Ms Paridis pursuant to s 84(1) of the Settlement Agents Act 1981 (WA). That application related to 25 allegations which the Board made against Ms Paridis.
5 Allegations 1 to 19 alleged that for each of the months November 2001 to May 2002, and July 2002 to June 2003, (that being 19 months) Ms Paridis acted contrary to s 49(6)(d) of the Settlement Agents Act in that she failed correctly to balance her trust account and certify that this had been done in records. Ms Paridis admitted those allegations.
6 Allegations 20 and 21 alleged that on or about 12 March 2004 and also on 2 April 2004, Ms Paridis acted contrary to s 46(2)(b) of the Settlement Agents Act in that she effected settlement of a leasehold property. Ms Paridis admitted those allegations.
7 Each of allegations 23 and 25 alleged that Ms Paridis acted contrary to r 15 of the Settlement Agents' Code of Conduct 1982 (WA) ("the Code of Conduct") in that she did not settle efficiently a transaction concerning a leasehold property. Ms Paridis admitted those allegations.
8 Each of allegations 22 and 24 alleged that Ms Paridis acted contrary to r 15 of the Code of Conduct in that she did not settle honestly a transaction concerning a leasehold property. Ms Paridis denied those allegations and the Tribunal found that they had not been made out.
9 The Tribunal decided that the allegations admitted by Ms Paridis, in particular, those relating to her trust account, involved a serious breach of public trust and warranted a suspension of her licence. The Tribunal made two orders. First, it suspended Ms Paridis' licence and triennial certificate for 12 months, but deferred the suspension for two months to
(Page 7)
- enable Ms Paridis to finalise existing settlements and to enable her trust account to be reduced to a nil balance. Secondly, the Tribunal ordered Ms Paridis to pay the Board's costs in the sum of $3000. The Tribunal made those orders and published its reasons for decision on 22 September 2006. Pursuant to the Tribunal's orders, the 12-month suspension of Ms Paridis' licence and triennial certificate was to commence on 24 November 2006. Ms Paridis has complied with the order as to costs.
10 On 10 October 2006, Ms Paridis filed an application to this Court, CACV 134 of 2006, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA), for leave to appeal from the Tribunal's decision that her licence and triennial certificate be suspended for 12 months. On 16 October 2006, the Board filed its own application to this Court, CACV 138 of 2006, for leave to appeal from the Tribunal's decision that allegations 22 and 24 had not been made out.
11 On 10 October 2006, Ms Paridis also made application to this Court, pursuant to s 106(1) of the State Administrative Tribunal Act, for an order that the decision of the Tribunal that her licence and triennial certificate be suspended be stayed pending the determination of her application for leave to appeal and, if leave be granted, the appeal itself. On 27 October 2006, I ordered that the operation of the decision of the Tribunal be stayed until the determination of Ms Paridis' application for leave to appeal from that decision, or further order.
The Settlement Agents Act
12 By s 83 of the Settlement Agents Act,the Board may allege to the Tribunal that there is proper cause for disciplinary action, as mentioned in s 84(2), against a person who is, relevantly, a settlement agent. Section 84(1) provides that if, in a proceeding commenced by an allegation under s 83 against a settlement agent, the Tribunal is satisfied that proper cause exists for disciplinary action, the Tribunal may do any one or more of the following things:
"(a) reprimand or caution the settlement agent;
(b) impose a fine not exceeding $10 000 on him;
(c) suspend or cancel his licence and any triennial certificate in respect thereof 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 or until the further order of the
- State Administrative Tribunal, from holding a licence or triennial certificate, or both."
- By s 84(2), relevantly, there shall be proper cause for disciplinary action against a settlement agent if:
"(a) …
(b) the settlement agent, or any person acting with the authority or upon the instructions of the settlement agent has, in the course of any dealings with a party, or a prospective party, to a transaction, been guilty of conduct that constitutes a breach of any law other than this Act and that prejudices or may prejudice any rights or interests of the party, or prospective party, to the transaction;
(c) the settlement agent is acting or has acted in breach of -
(i) a special condition of his licence or triennial certificate;
(ii) the requirements of this Act; or
(iii) the settlement agents' code of conduct;
or
(d) any other cause exists that, in the opinion of the State Administrative Tribunal renders the settlement agent unfit to hold a licence."
13 The Tribunal recited evidence and made findings of fact, relevantly, as follows:
(1) Ms Paridis:
(a) had undertaken study and obtained a qualification in settlement agency procedure ([37]);
(b) was the holder of a real estate settlement agent's licence number 894 that was first issued on 4 February 1992 ([8]);
- (c) was the holder of a current triennial certificate expiring on 3 February 2007 ([8]);
(d) operated as a sole trader under the name of Sunset Coast Settlements ([8]);
(e) maintained trust account number 306-113-5418904 with BankWest from 21 March 1994 to 27 September 2004 ([8]); and
(f) from 11 March 2004, had maintained trust account number 306-113-0268170 with BankWest ([8]).
- (2) Ms Paridis admitted that she failed to reconcile her trust account in a timely way in 19 months of a 20 month period from November 200l to June 2003 ([18]).
(3) An investigation by an inspector appointed by the Board revealed that reconciliations could be located for 16 of those 19 months, but the reconciliation report run had occurred anything from 3 days late (May 2002) to 306 days late (August 2002), with 11 months being in excess of 75 days late. On only 1 occasion was a certification as required by s 49(6)(d) of the Settlement Agents Act found ([18]).
(4) Ms Paridis experienced a problem with the trust account computer program (Prosett) in July 2002. The program would not close off the July 2002 bank reconciliation to enable the next month to be continued. This problem was rectified by her technology consultant, but problems persisted, including the computer "crashing" ([19]).
(5) In February 2003, the Prosett program malfunctioned and this resulted in approximately 30 transactions for the period 10 February 2003 to 14 February 2003 "disappearing" from the system. Ms Paridis' practice was to manually backup the system every day but when she presented the backup discs to the information technology consultant, the information could not be retrieved. It was ultimately established that there was both a hardware and a software failure ([19]).
(Page 10)
- (6) At that point Ms Paridis decided to recreate the trust account manually, and while this was taking place, she also decided not to keep electronic records. During that time the monthly reconciliations were not able to be done, but on a daily basis, she would check the bank statements and ensure that each file had been manually reconciled. Once the missing data had been re-entered and the computer system updated with the manual records, Ms Paridis attempted a reconciliation, but the Prosett program could not produce the reconciliation report ([20]).
(7) During the rebuilding of the trust account, Ms Paridis was in contact with her auditor, Athans & Taylor, who advised and liaised with the Board on her behalf ([21]).
(8) Eventually the situation with the Prosett program became untenable and, after seeking advice, Ms Paridis decided to change to a new system (M-Tech). As a result of introducing the new program, she decided to open a new trust bank account. The only way of finalising the old trust bank account was to start at the last reconciliation that the Prosett program had correctly performed and manually process all subsequent cheques, receipts and bank statements until a final list of bank balances and unpresented cheques was determined. Any future files would be conducted through the new trust bank account and would be isolated from the previous system. The conversion to the new system occurred in March 2004 and the old trust account was finalised and closed on 22 September 2004 ([22]).
(9) During this period, Ms Paridis' practice was extremely busy and, for the most part, she had 6 employees under her supervision ([23]).
(10) Ms Paridis experienced staff problems from around 2000 which created disharmony in the office ([23]).
(11) Ms Paridis' marriage broke down in 2000 and, as a consequence, from then until October 2004 she experienced emotional and financial difficulties. The
- problems with the trust account computer software occurred during this time ([23]).
- (12) Ms Paridis admitted that she did not always give her work and staff proper attention and supervision, that she lacked good judgment in the way she dealt with and addressed issues, and that she made assumptions without checking their correctness. As a result of personal and other issues, Ms Paridis became distracted from her work and relied heavily on her staff to carry out their tasks properly when they were not necessarily doing so ([24]).
(13) On 22 December 2003, Mr & Mrs McNicol entered into a lease agreement with Forest Lakes Lifestyle Village Pty Ltd ("Forest") to lease Unit 22 at Forest Village ([27]).
(14) On 7 July 2003 Mr & Mrs Geary entered into a lease agreement with Forest to lease Unit 105 at premises known as Forest Lakes Lifestyle Village ("Forest Village") ([28]).
(15) Both Mr & Mrs McNicol and Mr & Mrs Geary were referred to Ms Paridis by Seniors Own Real Estate ([43]).
(16) Ms Paridis had provided the purchasers with a "Disclosure of Interest" form stating that there was a business relationship between Sunset Coast Settlements and Seniors Own Real Estate, which the purchasers signed as having been received and read ([43]).
(17) On 28 February 2004, Mr & Mrs McNicol appointed Sunset Coast Settlements to settle their transaction. The "Appointment to Act" document completed by Mr & Mrs McNicol expressly stated "you may not act for any other party" ([27]).
(18) On or about 12 March 2004, settlement of Unit 22 (McNicol) was effected ([27] and [49]).
(19) By letter dated 22 March 2004, Ms Paridis informed Everard Yeo & Associates, the project managers for Forest Village ("Yeo") that settlement of Unit 105 was due on 2 April 2004. She requested that Forest sign the
- "Appointment to Act" document enclosed with her letter ([28]).
- (20) In the letter of 22 March 2004, Ms Paridis also told Yeo that the net amount due to Forest Village was $172,437.36. A settlement statement enclosed with the letter shows that a payment of $7082 was to be made in relation to variations to the contract. That payment was to be made to Summit Projects ([48]).
(21) On 25 March 2004, Mr & Mrs Geary appointed Sunset Coast Settlements to settle their transaction. The "Appointment to Act" document completed by Mr & Mrs Geary specified that the settlement agent may not act for any other party ([28]).
(22) The appointment document upon which the Board relied before the Tribunal (and used by Ms Paridis) appeared to be modelled on the form set out in Schedule 1 of the Code of Conduct as is required by rule 6A of the Code of Conduct. However, the particular document signed by the purchasers of Units 22 and 105 contained an additional statement, which was not in the form of an option for the purchaser, (that is, to strike out if not applicable), as follows: "I/We hereby confirm that I am aware that you are also acting on behalf of the Vendor". Later in the document, the purchaser was given the option of directing that the settlement agent not act for any other party. The acknowledgement that the settlement agent was to act for the vendor was consistent with the context that led to the assumption upon which Ms Paridis said she was acting ([46]).
(23) Ms Paridis did not have actual knowledge of the direction such that her conduct could be categorised as dishonesty ([47]).
(24) Ms Paridis did not read or check the appointment documents; the files for Units 22 and 105 would have been handled by more than one person and the authorities to act would simply have been placed on the relevant files. Ms Paridis assumed that, as the purchasers had been referred by the seller's real estate agent, and the
- purchasers were not to pay a settlement fee to her, the purchasers were aware of and consented to her acting for the vendor. The matter was not brought to her attention by anyone until it was investigated by the Board and referred to the Tribunal ([44]).
- (25) On 31 March 2004, Ms Paridis advised Yeo that the sum of $170,571.39 had been sent to Police & Nurses Credit Society. The letter from Ms Paridis also requested that Forest sign the "Appointment to Act" document enclosed with that letter ([27], [43] and [49]).
(26) By a document headed "Appointment" and dated 2 April 2004 ([49]), Forest appointed Sunset Coast Settlements to settle the McNicol transaction (Unit 22) ([27]).
(27) By a document headed "Appointment" and dated 31 March 2004, Forest appointed Ms Paridis to settle the Geary transaction (Unit 105) ([28]).
(28) On or about 2 April 2004, settlement of Unit 105 (Geary) was effected ([28] and [48]).
(29) Ms Paridis was not conscious of the prohibition in s 46 of the Settlement Agents Act against settlement agents settling on leasehold property, and effected settlements of leasehold property on the basis that she was allowed to do so. Ms Paridis was aware of other real estate settlement agents also undertaking this work, which gave a context supportive of her mistaken belief that conveying leasehold property was acceptable ([38] and [40]).
(30) Ms Paridis' ignorance of her obligations under the Settlement Agents Act was of greater import to the question of the quality of her practice, and how capably or efficiently she acted in respect of the relevant transactions, than it was to the question of whether she embarked on those transactions honestly ([40] and [46]).
(31) Ms Paridis admitted to inefficiency in relation to these transactions (that is, the settlement of Units 22 and 105) but the allegations of inefficiency were limited to the delay in remitting the settlement proceeds ([41]).
(Page 14)
- (32) The Board's case raised serious issues about how efficiently Ms Paridis carried out her work, and the carelessness of her practices, but did not provide sufficient evidence to displace what she said was her state of mind at the time ([46]).
(33) It was common ground that the letter of 31 March 2004 was inaccurate, and that the settlement amounts were ultimately paid into the Police and Nurses Credit Society on 29 June 2004. The amount paid to the Police and Nurses Credit Society for Unit 105 was $165,355.36, the difference of $7082 from the amount stated in the letter of 22 March 2004, being paid to Summit Projects for variations on the contract ([50]).
(34) Ms Chantry was called by the Board and gave evidence that between 29 April 2004 and 11 June 2004, she had contacted Ms Paridis' office on three occasions advising that contract variation costs of $7082 on Unit 105 had not been received by Summit Projects. She said that on two of those occasions Ms Paridis advised that the cheques had been issued. Payment was ultimately received and banked by Summit Projects on 16 June 2004 ([52]).
(35) Ms Chantry said that around 28 June 2004, Garry Cossill of Yeo advised her that the funds from the settlement of Units 22 and 105 at Forest Village had not been deposited into the Police and Nurses Credit Society account. Ms Chantry informed Mr Kim Rodgers, the company accountant for Van der Meer and Associates Pty Ltd, consulting engineers, of that fact. Mr Rodgers was also the accountant for the corporate trustee of the Forest Village project ([53]).
(36) Mr Rodgers telephoned Ms Paridis on the morning of 29 June 2004 to enquire about the settlement proceeds and asked her why the missing funds had not been disclosed as outstanding or unpresented cheques in the monthly bank reconciliation of her agency trust account. Mr Rodgers said that Ms Paridis told him that the cheques had, to her knowledge, been properly and promptly drawn on completion of settlement and had obviously gone astray. The reason this had not been reflected in the
- monthly bank reconciliation and so alerted her to the problem, was that her agency had been experiencing computer software problems. She said the Board was fully aware she had been experiencing computer problems and that she would investigate the matter, and contact him ([55]).
- (37) On the afternoon of 29 June 2004, Mr Rodgers sent Ms Paridis a facsimile in which he requested details of the trust account entries for the settlement of Units 22 and 105 or the entire Forest Village account in the trust ledger (if consolidated). He also asked for details of the Forest Village transactions that appeared on the trust account certified bank reconciliation for the month ending on 31 May 2004, specifically any outstanding cheques relating to the Forest Village and copies of bank cheques ([56]).
(38) On the afternoon of 29 June 2004, Mr Rodgers received a facsimile from Ms Paridis. The facsimile acknowledged telephone contact with Ms Chantry, and with a person at the Police and Nurses Credit Society on 28 June 2004, and telephone contact with Mr Rodgers on 29 June 2004 ([59]).
(39) In respect of Unit 22, the facsimile stated that two cheques were drawn on 12 March 2004; No 201 for $170,571.39 to Police and Nurses Credit Society and No 202 for $2098.61 to Seniors Own Real Estate. These amounts were "resent" as cheque no 206 to Seniors Own Real Estate on 19 Apri1 2004 and as cheque no 1337 to Police and Nurses Credit Society on 28 June 2004 ([58]).
(40) In respect of Unit 105, the facsimile stated that two cheques were drawn on 2 Apri1 2004; No 266 for $165,355.36 to Police and Nurses Credit Society and No 267 for $7082 to Summit Projects. The amount to Summit Projects was "resent" as cheque no 780 on 26 May 2004 and again as cheque no 1172 on 16 June 2004. The amount to Police and Nurses Credit Society was "resent" as cheque no 1336 on 28 June 2004. A cheque for $1535 was sent to Mr & Mrs Geary on 19 April 2004 (cheque no 205) ([59]).
(Page 16)
- (41) The facsimile dated 29 June 2004, which Ms Paridis confirmed was sent to Mr Rodgers, concluded:
"As mentioned over the last five months we have been changing computer programs and trust accounts and our previous computer program has suffered a very large amount of data corruption and we have lost and had to reprocess information and have been unable to print information. We apologise that because of this we did not discover the unrepresented cheques as we would have previously." ([60]).
(42) The cheques referred to were produced in evidence and it was clear, and now accepted by Ms Paridis, that the payee of cheques numbered 201 and 266 was not Police & Nurses Credit Society and they were not for $170,571.39 and $165,355.36 respectively, but were for different amounts. They were not related to this transaction. The payee on cheque number 202 was not Seniors Own Real Estate. The payee on cheques numbered 267 and 780 was not Summit Projects ([61]).
(43) Ms Chantry said she was asked by Yeo to calculate the interest cost incurred by the vendor of Units 22 and 105 due to the delay in receiving the settlement cheques. She said she calculated the interest cost, and on 9 September 2004 a cheque for an amount of $3099.42 was received from Sunset Coast Settlements as part payment of the interest due. On 28 September 2004, a further cheque for $3985.03 was received from Sunset Coast Settlements, being the balance of the interest ([63]).
(44) Ms Paridis said that around July or August 2004, she telephoned either Ms Chantry or Mr Rodgers, apologised for the delays in the settlement of Units 22 and 105, and offered to pay the vendor any lost interest as a consequence of those delays. She said that Forest provided her with the interest calculation which she duly paid. Under cross-examination, Ms Chantry could not remember whether Ms Paridis had first suggested that she would compensate Forest for the lost interest ([64]).
(Page 17)
- (45) The system in Ms Paridis' agency at the time of the settlement of Units 22 and 105 was that an employee called Jacquie, whose job it was to draw and send cheques, would be given the settlement file and instructed to draw and send cheques necessary to effect the settlement. At that time two people in the agency, in addition to Ms Paridis, were authorised to sign cheques on the trust account. It was not then Ms Paridis' practice to check a settlement file to confirm if cheques had been sent. It was her usual practice to ask Jacquie if a cheque had been sent before writing or signing a letter such as the one dated 31 March 2004 (in respect of Unit 22). Even if she had not asked Jacquie, she said she would have assumed that the cheque would have been sent because it was Jacquie's job to do so ([65]).
(46) Ms Paridis said that it was possible that Jacquie drafted the letter of 31 March 2004, in which case she would have relied on Jacquie's statement that the cheque had been sent ([66]).
(47) Ms Paridis agreed that she had a telephone conversation with Mr Rodgers on 29 June 2004, during which he queried the whereabouts of the settlement proceeds for Units 22 and 105. Her response was that she thought the cheques had been drawn and this was consistent with her belief, at that time, that the relevant cheques had been forwarded to the Police and Nurses Credit Society. Ms Paridis also agreed that Mr Rodgers asked for a printout of the trust account ledger and that she told him that she could not comply with his request because of the trouble with the computer system. Mr Rodgers denied that Ms Paridis made reference in that conversation to the computer problems in respect of the trust account ledger printout ([67]).
(48) Ms Paridis said that, prior to writing and signing the letter (sent by facsimile) to Yeo on 29 June 2004, she had asked Jacquie to give her details of the cheques that were issued in respect of Units 22 and 105; that is, the cheque number, the date it was drawn, the amount and the payee. These details, provided in the letter of 29 June, were the ones supplied by Jacquie. When "resent" is mentioned in
- relation to cheques, Ms Paridis said her understanding was that the initial cheques had to be replaced because, for one reason or another, they had not reached the payees ([68]).
- (49) According to Ms Paridis, she had been having difficulties with Jacquie from around January to July 2004. Jacquie was not listening to her, was not following orders and became rude to her. Ms Paridis said that around May/June 2004, Jacquie began telling her that she did not want her to supervise or check her work. Jacquie wa1ked out of the agency in July 2004 ([69]).
Section 105 of the State Administrative Tribunal Act: an appeal requires leave
14 Section 105(1) of the State Administrative Tribunal Act provides that a party to a proceeding may appeal from the decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
15 By s 105(2), the appeal can only be brought on a question of law. Section 105(13) provides, however, that:
"Despite subsection (2), if the Tribunal's decision -
(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact."
- The Settlement Agents Act is a relevant Act for the purposes of s 105(13). See s 105(14) and the statutes enumerated in Sch 1 to the Act.
16 The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.
17 In Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, Phillips JA (with whom Tadgell and Batt JJA agreed)
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- enunciated guidelines for determining whether to grant leave to appeal under s 148 of the VictorianCivil and Administrative Tribunal Act 1998 (Vic). The provisions of s 148 are not materially different from the provisions of s 105(1) and (2) of the Western Australian Act. His Honour said, at 337 [16]:
"When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible."
Compare, in the context of the principles to be applied in determining whether leave to appeal should be granted from an interlocutory judgment or order, the observations in Wilson v Metaxas [1989] WAR 285 at 294 and The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.
18 In my opinion, the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls should be taken into account in considering whether to grant leave under s 105(1) of the State Administrative Tribunal Act. It must be emphasised, however, that those guidelines are not rigid or exhaustive, and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice.
Ms Paridis' grounds of appeal
19 Ms Paridis' grounds of appeal are expressed as follows:
"1. The grounds of appeal are that the [Tribunal]:
(1) Made an error of law in directing itself that the object of disciplinary action is one of the protection of the public by maintaining the integrity of a profession …
- (2) Made an error of mixed law and fact by failing to take into account (or adequately into account) when considering the disciplinary orders:
(a) [Ms Paridis'] acknowledgement and admission of her conduct and that it gave a proper cause for disciplinary action under section 84 of the Settlement Agents Act 1981;
(b) the length of time that had elapsed since the admitted breaches without conduct by [Ms Paridis] that could give further cause for disciplinary [action];
(c) the length of time between the conduct giving cause for disciplinary [action] and the [Board] making allegations to the [Tribunal];
(d) the changes that [Ms Paridis] has made to her practice procedures since the problems with the trust account have emerged and the compliant conduct of [Ms Paridis] in that regard since September 2004;
(e) that [Ms Paridis], via her accountant, liaised with the [Board] from about February 2003 concerning [Ms Paridis'] attempts to rebuild and reconcile her trust account;
(f) failures in the computer hardware and software used by [Ms Paridis] caused the trust account problems;
(g) the audit of [Ms Paridis'] trust account for the year ending 30 June 2005 showed that [Ms Paridis'] trust account was compliant;
(h) the [Tribunal] found that [Ms Paridis'] conduct was not dishonest;
- (i) no harm was caused to any member of the public by [Ms Paridis'] conduct;
(j) the seriousness of the conduct relative to other possible causes for disciplinary orders;
(k) that suspension would remove [Ms Paridis'] ability to earn a living in her chosen vocation; and
(1) the significant delay in the [Board] prosecuting any complaint to the [Tribunal].
- (3) Made an error of mixed law and fact by imposing the wrong disciplinary order.
(4) Made an error of law in ordering that [Ms Paridis] pay the [Board's] costs.
- 2. The [Tribunal] should have:
(1) Directed itself that the appropriate test for disciplinary orders is to protect the public and that in considering the public protection in this instance regard be had to:
(a) whether [Ms Paridis] understood her errors;
(b) whether [Ms Paridis] was likely to make a similar error;
(c) the seriousness of the errors relative to other conduct that could give cause for disciplinary orders;
(d) whether the orders would achieve the objective of public protection without excessively punishing [Ms Paridis];
(e) [Ms Paridis'] personal circumstances and especially her ability to earn a living from her chosen vocation when there was no
- finding against her that she was unfit to practise.
- (2) When considering the appropriate disciplinary order, have given proper consideration of the following facts and matters set out in paragraph 1(2)(a) - (1) above and:
(a) the references presented in support of [Ms Paridis] at the hearing;
(b) [Ms Paridis'] conduct since the admitted conduct demonstrated an understanding of her prior wrongdoing and demonstrated that there was little risk of such conduct reoccurring;
(c) [Ms Paridis] had been practising since 4 February 1992;
(d) except for the admitted wrongdoing, [Ms Paridis'] conduct since July 2003 had not given cause for disciplinary orders to be made against her.
(3) Concluded that suspension of [Ms Paridis] was excessive as it was substantially more than required to achieve public protection and should have ordered that:
(a) [Ms Paridis] be reprimanded;
(b) [Ms Paridis] be fined $10,000;
(c) there be no order as to costs."
20 I should mention, before examining the merits of Ms Paridis' grounds of appeal, that the Court raised with counsel for the parties whether s 84(1) of the Settlement Agents Act requires the Tribunal to impose a separate and distinct penalty in relation to each allegation which it finds has been proved or whether the Tribunal may, as it did in the present case, impose a single penalty in respect of all of the proven allegations.
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21 Ms Paridis' grounds of appeal do not allege that the Tribunal made an error in imposing a single penalty for the disciplinary offences as a whole, rather than a separate and discrete penalty for each offence. Similarly, no allegation of error in relation to this issue is raised by the Board in its grounds of appeal. Counsel for Ms Paridis said that he had "no complaint about there being a global order".
22 It is unnecessary, in the circumstances, for this Court to express any opinion upon the correctness of the Tribunal's approach to this aspect of the proceedings before it. I note, however, the observations of Owen J (as his Honour then was) in Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992, at pages 137 - 140, in the context of s 13 of the Medical Act 1894 (WA), and also the approach of the Tribunal in Settlement Agents Supervisory Board and Strand Settlements Pty Ltd [2005] WASAT 350.
Ms Paridis' application for leave: the merits of ground 1(1)
23 The Tribunal said, at [99]:
"It is a well-established principle that the object of disciplinary action is one of the protection of the public by maintaining the integrity of a profession. It is not intended to be punitive even though the disciplinary action may involve significant deprivation to the person disciplined (see for example, Re A Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 at par [6] and [7])."
24 Counsel for Ms Paridis submitted that the Tribunal made an error of law in that:
(1) the Tribunal's statement, at [99], that the object of disciplinary action is the "protection of the public by maintaining the integrity of a profession" was "too narrow"; and
(2) as a result, the Tribunal failed to take into account "other elements of the test for public protection".
- It was argued, on behalf of Ms Paridis, that the Tribunal had failed to consider whether Ms Paridis was likely to engage in further conduct that might give rise to a requirement for disciplinary action.
25 The character and purpose of disciplinary proceedings against a member of a profession have been examined on numerous occasions. The
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- object of those proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined. See, for example, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286; Clyne v New South Wales Bar Association (1961) 104 CLR 186 at 201 - 202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 - 184; Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 at 244; Re a Barrister and Solicitor (1979) 40 FLR 1 at 24 - 25; Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 at [6] - [7]. As Crawford J noted, in Law Society of Tasmania v Turner (2001) 11 Tas R 1, at 24 [61], in the context of disciplinary proceedings against a legal practitioner:
"The powers of the Court are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and so protect, not only the future of the profession, but also its clients from harm. The Court's task is to uphold the dignity and standards of the profession and to enable it to do so, it has many powers, including the power to impose a fine not exceeding $20,000, to order payment of costs, to suspend and to strike off. Such orders are, of course, of a punitive nature but their imposition should not be regarded as sentences as for crimes and offences. The order the Court makes should be one 'which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct'. Dickens v Law Society [42/1981] at 16."
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- namely, the protection of the public and the maintenance of proper professional standards, as I have mentioned, the maintenance of proper professional standards is conducive to the protection of the public. I am satisfied that the Tribunal's statement of the nature and purpose of disciplinary proceedings did not involve a material error of law. Further, I am satisfied that the Tribunal's statement did not cause it to misapprehend its proper function in determining the questions in issue in the proceedings before it. Ground 1(1) is without merit.
Ms Paridis' application for leave: the merits of grounds 1(2) and (3)
27 The Tribunal received evidence in respect of those allegations which Ms Paridis denied (being allegations 22 and 24), evidence of Ms Paridis' explanation of the circumstances that led to the failures to balance the trust account, and submissions from the parties as to penalty in relation to all of the allegations. Subsequent to the hearing, the Tribunal received further written submissions from the parties concerning the allegations and as to penalty and costs.
28 There is no doubt that the Tribunal was aware of each of the matters referred to in pars (a) - (l) of ground 1(2). They were referred to by the Tribunal, expressly or by implication, in its reasons.
29 The Tribunal recorded, at [94] - [96] and [98], various aspects of Ms Paridis' submissions which were mitigatory in nature:
" … [Ms Paridis] presents factors that she submits provide some explanation for the circumstances which [led] the Board to bring the allegations to this Tribunal. They include that her practice was extremely busy at the time, that she was supervising six employees and that she had financial, emotional and family problems. She says that she has made many improvements to her practice, that she spent a significant sum to ensure that the computer problem in respect of her trust account was rectified and that the audit report for the year ended 30 June 2005 was not qualified. She submits that she now understands and appreciates her obligation under the [Settlement Agents] Act in relation to her trust account.
[Ms Paridis] also submits that by admitting to the majority of the allegations made against her by the Board, she does acknowledge responsibility for her actions.
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- Whilst the Tribunal has some sympathy with the personal and family problems that [Ms Paridis] says impacted on her practice during the relevant period, that sympathy cannot extend to a justification for her responsibilities as a licensed real estate settlement agent being unmet to the extent revealed by the allegations made by the Board. It is not acceptable that the trust account was left in an uncertain state for at least the period from November 2001 to June 2003. It is not sufficient to say that the account was at times balanced when this meant several months would be balanced at once. The examples given earlier in these reasons, abundantly demonstrate that by not reconciling the trust account monthly, [Ms Paridis] could not be sure that the funds she was withdrawing from the account would be set against the earlier depositing of matching funds. Such a situation presented a serious risk to the integrity of the trust account. The fact that no allegation of misappropriation or disappearance of trust money was made does not mitigate the existence of that risk.
…
[Ms Paridis] submits that her business is now running properly, efficiently and successfully. She has six staff members for whom she is responsible and who will be greatly affected if her licence is suspended or disqualified as she is the only licence holder in the practice."
30 Ms Paridis has not demonstrated that the Tribunal made an error of mixed fact and law, by failing to take into account (adequately or at all) the matters referred to in ground 1(2), or that the Tribunal made an error of mixed fact and law by imposing the wrong disciplinary order, as alleged in ground 1(3). It was necessary for the Tribunal, in determining the appropriate order or orders to be made under s 84(1) of the Settlement Agents Act, to evaluate and give weight to a variety of considerations, including:
(1) the conduct giving rise to the allegations and its seriousness;
(2) Ms Paridis' explanation for her 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, relating to Ms Paridis and her business including her professional behaviour before and after the incidents in question, and the extent of her rehabilitation.
- The considerations which I have mentioned are not, of course, exhaustive. Rather, they are illustrative of the matters which the Tribunal was obliged to, and did, take into account and weigh for the purpose of determining the disciplinary orders which were appropriate, in the circumstances, to protect the public and maintain proper professional standards.
31 Although the Tribunal did not make a finding of dishonesty, it did find that Ms Paridis had been seriously incompetent, and ignorant of some basic requirements for the satisfactory conduct of a settlement agent's practice. It is implicit in the Tribunal's reasons that although Ms Paridis had, to some extent, improved her standards, and although there were other mitigatory features, the imposition of a suspension was necessary to safeguard the interests of the public and ensure the maintenance of acceptable standards among settlement agents.
32 I am satisfied that the Tribunal's decision to suspend Ms Paridis' licence and triennial certificate for 12 months was within the limits of a sound exercise of the Tribunal's discretion. The penalty was not disproportionate or manifestly excessive.
33 Grounds 1(2) and (3) fail.
Ms Paridis's application for leave: the merits of ground 1(4)
34 By s 87(1) of the State Administrative Tribunal Act:
"Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal."
- Section 87(2) provides, relevantly, that unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party.
35 In Medical Board of Western Australia v Roberman [2005] WASAT 81 (S), the Tribunal observed, at [30], that while the question of
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- the award of costs is a matter of discretion in every case, where a regulatory authority successfully brings a complaint of misconduct, this will usually provide a strong case for the exercise of the discretion as to costs in favour of the authority.
36 In Motor Vehicle Industry Board v Dawson (2006) 41 SR (WA) 343, the Tribunal, of which Barker J was the Presiding Member, referred to Medical Board of Western Australia v Roberman, and then said, at 353 [47]:
"The decision in the Robermancasedoes not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful."
- Also see Medical Board of Western Australia v Roberman [2006] WASAT 152.
37 In the present case, the Tribunal dealt with the issue of costs, at [103] - [104], as follows:
"Relying on the Tribunal's decision in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30] the Board submits that [Ms Paridis] should be ordered to meet the costs of the Board in bringing and maintaining the proceedings. The Board submits that a reasonable award of costs by the Tribunal would be $10 000.
[Ms Paridis] has admitted to the majority of the allegations brought by the Board. The two allegations of dishonesty which were disputed by [Ms Paridis] have not been made out. The hearing dealt with the two allegations of dishonesty and preliminary submissions as to penalty. On the basis of the reasoning in Roberman, the Tribunal accepts that the Board is entitled to [the] costs of bringing the disciplinary action which
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- [led] to the admissions by [Ms Paridis]. Had the matters that were relied upon by the Board as supporting a finding of dishonesty been relied upon as [the] basis for a claim of inefficiency, it is most likely that [Ms Paridis] would have admitted the allegations as she admitted all other allegations. That would have resulted in a much shorter hearing, and greatly reduced costs. The appropriate amount of costs is assessed as $3000."
38 The Tribunal's reasons do not reveal any error of principle in its approach to the exercise of the discretion as to costs conferred by s 87 of the State Administrative Tribunal Act. I am satisfied that, in the present case, the Tribunal's discretion did not miscarry. It was reasonably open to the Tribunal, in the circumstances, to order Ms Paridis to pay the Board's costs, and to fix those costs in the sum of $3000.
39 Ground 1(4) is without merit.
Ms Paridis' application for leave: the merits of ground 2
40 Ground 2 overlaps substantially with grounds 1(1), (2) and (3).
41 For the reasons I have given in the context of grounds 1(1), (2) and (3), Ms Paridis has not demonstrated that the Tribunal made any error of principle in exercising its disciplinary powers in relation to her. Also, for the reasons I have given in the context of grounds 1(1), (2) and (3), the exercise of the Tribunal's discretion to determine the appropriate order or orders under s 84(1) of the Settlement Agents Act did not miscarry. The Tribunal's decision to suspend Ms Paridis' licence and triennial certificate for 12 months was not excessive or substantially more than was required to achieve the protection of the public.
Ms Paridis' application for leave: conclusion
42 Ms Paridis' grounds of appeal do not have sufficient merit, and do not raise any issue of sufficient importance, to require a grant of leave. Her application should be dismissed.
The Board's application for leave
43 The Board seeks leave to appeal against:
(1) the Tribunal's finding that the Board had not demonstrated to the required standard that Ms Paridis did
- not settle the leasehold properties, units 22 and 105 at Forest Village, honestly; and
- (2) the Tribunal's decision to suspend Ms Paridis' licence and triennial certificate for 12 months, rather than to cancel her licence and permanently disqualify her from holding a licence.
The Board's grounds of appeal
44 The Board's grounds of appeal in relation to the finding that the Board had not demonstrated to the required standard that Ms Paridis did not settle the leasehold properties, units 22 and 105 at Forest Village, honestly, are these:
"1. The Tribunal's findings in respect of both transactions is against the evidence and weight of the evidence and is therefore wrong in law in that the evidence established to the necessary standard the following:
(a) [Ms Paridis] was at all material times an experienced settlement agent.
(b) [Ms Paridis] claimed not to know the legal prohibition on agents settling leasehold transactions when knowledge of the legislation is a requirement of holding a licence.
(c) [Ms Paridis] settled both transactions acting for both sides of the transactions when specifically directed not so to act in her documents of appointment.
(d) [Ms Paridis] failed to pay the proceeds of the settlements as directed and blamed an employee.
(e) [Ms Paridis] when queried about the whereabouts of the proceeds of the settlements claimed that the cheques must have gone astray. No such cheques had been written.
(f) [Ms Paridis] when further queried gave the vendors' representatives details of cheques said to have been forwarded in payment of the proceeds
- of the settlements. Those cheques had been drawn in respect of unrelated transactions.
- (g) [Ms Paridis] claimed a troublesome employee since resigned, had given her false information.
(h) [Ms Paridis] despite admittedly knowing the employee was troublesome claimed not to have checked the information before disclosure to the vendor.
(i) [Ms Paridis] claimed that she could not check her trust account because of computer problems.
(j) [Ms Paridis'] auditor had disclosed the trust account to be operating properly before at least the second of the two transactions.
(k) [Ms Paridis] was receiving weekly bank statements in relation to the trust account and claimed not to have checked them for the 'missing cheques'.
(l) [Ms Paridis] failed to check whether the 'original' cheques had been banked.
- 2. In the circumstances set out above no reasonable tribunal could reach the conclusion that [Ms Paridis] had acted other than dishonestly.
3. The Tribunal erred in law in failing to take into account evidence that on a prior occasion [Ms Paridis] had been the subject of an unappealed finding the [sic] she had acted dishonestly in circumstances in which she had misled a client to cover up her own inefficiency."
45 The Board's grounds of appeal in relation to the Tribunal's decision not to cancel Ms Paridis' licence and permanently disqualify her from holding a licence, are these:
"4. The Tribunal, in imposing a 12 month suspension of licence in respect if [sic] the 23 admitted breaches of the Settlement Agents Act 1981 and the Settlement Agents' Code of Conduct 1982 took disciplinary action which was manifestly inadequate in the following respects:-
- (a) In 19 separate months [Ms Paridis] failed to balance her trust account and certify it correct.
(b) [Ms Paridis] blamed computer problems but did not institute a manual system as backup.
(c) [Ms Paridis] did not refuse work or take steps to ensure trust funds were protected.
(d) [Ms Paridis] had personal problems and did not give her obligations the attention they required.
(e) The problem continued over 19 separate months.
(f) A bank error caused the trust account to be in debit for 3 months without detection.
(g) During that time [Ms Paridis] drew cheques not matched by deposited funds.
(h) After 3 months the bank, not [Ms Paridis], rectified the error.
(i) When the old and new trust accounts were audited [Ms Paridis] deposited $2086.80 into the account to make up an unexplained deficiency.
(j) [Ms Paridis] had received a previous warning about trust account procedural problems.
(k) [Ms Paridis] settled leasehold transactions contrary to the provisions of the legislation demonstrating at least a failure to understand the limits of her functions.
(l) [Ms Paridis] settled the two leasehold transactions inefficiently and was forced to pay the vendors $7084.45 in lost interest.
- 5. The Tribunal erred in not cancelling [Ms Paridis'] licence and disqualifying [Ms Paridis] from obtaining a licence for the following reasons:-
- (a) The imposed disciplinary action is insufficiently protective of the public and the settlement agency industry.
(b) The imposed disciplinary action does not manifest a sufficient element of personal or general deterrence.
(c) The imposed disciplinary action attributes too much weight to matters personal to [Ms Paridis] when protection of the public and the industry must be paramount.
(d) The imposed disciplinary action ignores the implications of failure to act according to law.
(e) The imposed disciplinary action fails to reinforce the need to react immediately in an effective way to problems as they occur."
The Board's application for leave: does s 105(13) of the State Administrative Tribunal Act apply to the Board?
46 As I have mentioned, s 105(2) of the State Administrative Tribunal Act provides that an appeal with leave under s 105(1) can only be brought on a question of law. It is convenient to set out again s 105(13):
"Despite subsection (2), if the Tribunal's decision -
(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b) has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact."
- Also, as I have mentioned, the Settlement Agents Act is a relevant Act for the purposes of s 105(13).
47 The term "decision", in the context of a "decision of the Tribunal", is defined in s 3(1) to include an order, direction or determination of the Tribunal.
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48 Section 105(13)(b) refers to the "effect" of the Tribunal's decision. In my opinion, the provision is concerned with the legal, as distinct from the practical, effect of the decision. If the Tribunal decides to disqualify or suspend a person from practising his or her profession or other vocation, then the legal effect of the decision will be to deprive that person of his or her "capacity to lawfully pursue a vocation", within s 105(13)(b). It is not necessary, for s 105(13)(b) to apply, that the deprivation be permanent or indefinite. If, however, the Tribunal were merely to impose a fine or were to reprimand or caution a person, that penalty would not have the legal effect of depriving the person of his or her "capacity to lawfully pursue a vocation".
49 The apparent intention of the Parliament, in enacting s 105(13), was to expand the scope of an appeal with leave under s 105(1) to include grounds of appeal involving questions of fact or questions of mixed law and fact where the Tribunal's decision has the legal effect of significantly interfering with a person's capacity to practise a profession or pursue a vocation for which he or she is otherwise qualified with, no doubt, serious consequences for his or her livelihood and reputation in the community.
50 A person who has been deprived, as a result of the Tribunal's decision, of the capacity lawfully to pursue a vocation may appeal with leave on any ground (and not merely on a question of law) against the Tribunal's decision to find the person guilty of disciplinary offences, and also against the Tribunal's decision on penalty.
51 The provisions of s 105(13)(b), and the apparent intention of the Parliament in enacting s 105(13), indicate that s 105(13) applies solely to an appeal with leave brought by the person who has been deprived of the capacity lawfully to pursue a vocation, and not to an appeal with leave brought by the Board. In my opinion, the Parliament did not intend that where the Tribunal had found a person guilty of a disciplinary offence and had imposed a penalty of suspension or disqualification, and the Board sought leave to appeal on the basis that the penalty was inadequate, the Board should be entitled to rely on any grounds of appeal (and not merely on grounds raising questions of law).
52 I am therefore of the opinion that any appeal with leave by the Board under s 105(1) can only be brought on a question of law.
53 An appeal "on a question of law" is narrower than an appeal that merely "involves a question of law". Where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of
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- law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 - 60 [10] - [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made "on a question of law". That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act.
54 A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law. See Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, where Fox, Deane and Morling JJ said, at 410:
" … the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses … An appellant who attacks a conclusion of the [Administrative Appeals Tribunal] because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."
- Also see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ (with whom Brennan J agreed) at 355 - 356; Comcare Australia v Lees (1997) 151 ALR 647 at 652 - 653; Townsend v Minister for Immigration and Multicultural Affairs [2001] FCA 492 at [4] - [7]; Hill v Repatriation Commission (2005) 218 ALR 251 at 268 [92] - [93].
55 A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. See Waterford v Commonwealth (1987) 163 CLR 54 at 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 [146].
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56 A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. See Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 at 742.
57 A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183; Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 at 692. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigation and Ethnic Affairs, unreported; Fed C of A; 9 August 1995, French J said, at 15 - 16:
"There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors."
The Board's application for leave: the merits of grounds 1 and 2
58 Ground 1, which complains that the Tribunal's findings are "against the evidence and the weight of the evidence", does not raise a question of law. Ground 2, in alleging that, in the circumstances set out in ground 1, no reasonable tribunal could have reached the conclusion that Ms Paridis
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- had acted other than dishonestly, appears, in substance, to raise a question of law.
59 Grounds 1 and 2 (and also ground 3) attack the Tribunal's "finding", in relation to allegations 22 and 24, that the Board had not demonstrated to the required standard that Ms Paridis did not settle the leasehold properties, units 22 and 105 at Forest Village, honestly. Section 105(1) confers a right of appeal with leave from a "decision" of the Tribunal. Although, as I have mentioned, s 3(1) defines a "decision" of the Tribunal to include an order, direction or determination of the Tribunal, s 105(1) does not, in my opinion, confer a right of appeal with leave merely in relation to a "finding" made by the Tribunal in the course of reaching a "decision". If a "finding" is to be attacked on an appeal with leave, it must be in the context of an appeal against the "decision".
60 Although ground 2 relates, in form, to a "finding" of the Tribunal, that finding was, in substance, the Tribunal's "decision" that each of allegations 22 and 24 against Ms Paridis had not been made out.
61 The Board's allegations of dishonesty comprised three aspects:
(1) Ms Paridis acted on the leasing transactions in the knowledge that the Settlement Agents Act prohibited her from acting on those transactions;
(2) Ms Paridis proceeded to act on the transactions in the knowledge that the purchasers had not consented to her acting for another party; and
(3) By facsimile dated 29 June 2004, Ms Paridis provided misleading information to an officer of the vendor concerning cheques allegedly drawn to disburse the proceeds of the transactions.
62 The Tribunal found:
(1) in relation to the first aspect of alleged dishonesty, that:
(a) Ms Paridis did not know she was not permitted to settle leasehold property ([30] and [38]);
(b) Ms Paridis was, at the time, aware of 2 other settlement agents who were undertaking such work and followed the practice of those other agents ([30] and [38]);
- (c) Ms Paridis would not have continued with the transactions had she been aware of the prohibition ([30]);
(d) Ms Paridis admitted that she would have received the bulletins produced by the Board, but could not remember having read the articles in question ([34]); and
(e) Ms Paridis effected settlements of leasehold property on the basis that she was allowed to do so ([38]);
- (2) in relation to the second aspect of alleged dishonesty, that:
(a) the purchasers of the relevant leaseholds were referred to Ms Paridis by the agents of the vendor ([43]);
(b) Ms Paridis did not read or check the appointment documents ([44]);
(c) the files for Units 22 and 105 would have been handled by more than 1 person and the authorities to act would simply have been placed on the relevant files ([44]);
(d) Ms Paridis assumed that as the purchasers had been referred by the vendor's agent and the purchasers were not to pay a settlement fee to her, the purchasers were aware of and consented to her also acting for the vendor ([44] and [45]);
(e) the matter was not brought to Ms Paridis' attention by anyone until it was investigated by the Board and referred to the Tribunal ([44]);
(f) the particular document signed by the purchasers of Units 22 and 105 contained a statement, which was not in the form of an option for the purchasers to strike out if not applicable, but stated, "I/We hereby confirm that I am aware that
- you are also acting on behalf of the Vendor" ([46]); and
- (g) later in the document the purchaser was given the option of directing that Ms Paridis not act for any other party ([46]).
63 The Tribunal also made various findings of fact in relation to the third aspect of alleged dishonesty: [45] to [72].
64 The Tribunal concluded:
(1) in relation to the first aspect of alleged dishonesty, that:
(a) the Tribunal was not satisfied that Ms Paridis' evidence as to the state of her knowledge should be rejected ([40]);
(b) Ms Paridis was mistaken in her belief that conveying leasehold property was acceptable (a belief that was supported by Ms Paridis' knowledge that other settlement agents undertook such conveyances) but the Board did not demonstrate to the required standard that Ms Paridis knew she was not permitted to effect settlement of the relevant leasehold properties at the time that she did ([38] and [39]);
(c) the fact that Ms Paridis should know the law is made clear in section 27 of the Settlement Agents Act and rule 4 of the Code of Conduct, but that of itself did not establish actual knowledge of the law on her part at the relevant times ([39]); and
(d) the Board's reference to its information bulletins would perhaps have carried more weight if they were from a period contemporaneous with the relevant settlements rather than the 12 months and 2 years previously, but, in any event, the evidence as to whether they actually came to Ms Paridis' notice fell short of establishing her knowledge ([39]);
(Page 40)
- (2) in relation to the second aspect of alleged dishonesty, that:
(a) the Board did not provide sufficient evidence to displace what Ms Paridis said was her state of mind at the time ([46]);
(b) the conflicting statements on the appointment form were not helpful to the Board's case as they showed the document to be internally inconsistent in its message about the identity of Ms Paridis' client or clients ([46]);
(c) the acknowledgement that Ms Paridis was to act for the vendor was consistent with the context that led to the assumption upon which Ms Paridis said she was acting ([46]); and
(d) the Board had not satisfied its onus to show that Ms Paridis had actual knowledge of the direction such that her conduct could be categorised as dishonesty ([47]); and
(3) in relation to the third aspect of alleged dishonesty, that:
(a) the evidence of Ms Chantry and Mr Rodgers called by the Board was not necessarily inconsistent with Ms Paridis' account of events ([73]);
(b) Ms Paridis' explanation that she was relying on advice about the transactions from her employee would equally explain her responses to both Mr Rodgers and Ms Chantry ([73]);
(c) after considering "troubling aspects" and areas of "concern" in Ms Paridis' evidence in respect of the third aspect of dishonesty ([74] to [81]), Ms Paridis' claim that she relied upon her employee for information was not inherently implausible ([81]); and
(d) despite its disquiet about Ms Paridis' conduct, the Board did not demonstrate to the required
- standard that she did not settle the leasehold properties, Units 22 and 105 at Forest Village, honestly ([83]).
65 The reasoning of a tribunal which is based on a credibility determination must be distinguished from the reasoning of a tribunal which is based on inferences drawn from facts that were undisputed or found by the tribunal. See Fox v Percy (2003) 214 CLR 118 at 146 [88]. As Kirby J observed in CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at 466 [21] - [22]:
"Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'."
- Also see Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 at 477 - 478 [65] - [67].
66 Normally, therefore, a tribunal's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the tribunal's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
67 Although an appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance" (Dearman v Dearman (1908) 7 CLR 549 at 561), it must necessarily observe the "natural limitations" that exist where the appellate court proceeds wholly or substantially on the record. See Dearman at 561; Fox v Percy at 125 - 126 [23]. In Dearman, Isaacs J said, at 561:
(Page 42)
- "The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal."
68 In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said, at 126 [23], in relation to the "natural limitations" of an appellate court proceeding wholly or substantially on the record:
"These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share [Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [SRA (1999) 73 ALJR 306 at 330 [89] - [91]; 160 ALR 588 at 619 - 620, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209 - 210; Jones v The Queen (1997) 191 CLR 439 at 466 - 467]."
69 The determination of whether a person's conduct involves dishonesty requires a consideration of the person's mental state; that is, his or her knowledge, belief or intention. See McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 per Gaudron J at 596; Harle v Legal Practitioners Liability Committee [2003] VSCA 133 per Chernov JA (with whom Callaway and Buchanan JJA agreed) at [29].
(Page 43)
70 Negligence or stupidity, even gross negligence or remarkable stupidity, is not dishonesty. However, negligence or stupidity can be of such magnitude as to require the rejection of a person's claim that his or her conduct was pursued in ignorance of otherwise obvious facts. See R v Lawrence [1997] 1 VR 459 per Callaway JA at 467; Harle per Chernov JA at [41].
71 A finding of dishonesty may be made on the basis of an inference which is properly drawn from other established facts. See McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28 per Kiefel J (with whom Stone and Allsop JJ agreed) at [35]; Harle per Chernov JA at [53].
72 In the present case, the Tribunal had the significant advantage of seeing and hearing the witnesses (in particular, Ms Paridis) in the context of the hearing. The Tribunal's findings in relation to Ms Paridis' alleged dishonesty are not inconsistent with an overwhelming body of evidence, and are not glaringly improbable. Also, I am not persuaded that the Tribunal failed to use or misused its advantage as a tribunal of first instance. See Hill v Repatriation Commission at 268 [92] - [93]. The Tribunal's finding that the Board had not demonstrated to the required standard that Ms Paridis did not settle the leasehold properties, units 22 and 105, at Forest Village, honestly, was not a conclusion that no reasonable tribunal could have reached.
73 Ground 1 is incompetent and ground 2 fails.
The Board's application for leave: the merits of ground 3
74 Ground 3, which merely alleges that the Tribunal failed to take into account a piece of evidence, does not raise a question of law. The ground is therefore incompetent. In any event, the substance of the point sought to be raised by the Board is unmeritorious.
75 The Board complains that the Tribunal did not refer, in its reasons, to evidence that, in earlier disciplinary proceedings before the Settlement Agents Supervisory Board, a finding of dishonesty was made against Ms Paridis. That adverse finding related to a conflict of interest which arose between Ms Paridis and her client. The Settlement Agents Supervisory Board found that Ms Paridis had given a false account to the client in order to protect herself. Ms Paridis acknowledged the existence of the earlier adverse finding, but denied its correctness.
(Page 44)
76 In my opinion, the finding of dishonesty against Ms Paridis in the earlier disciplinary proceedings was relevant, in the present case, for two purposes. First, it was relevant to her credit generally. Secondly, it was relevant to whether she was or should have been well aware of the danger of acting for both parties to the transactions under scrutiny before the Tribunal.
77 The Tribunal's failure to refer, in its reasons, to the earlier adverse finding against Ms Paridis, does not vitiate the Tribunal's findings in relation to her honesty. It was not necessary for the Tribunal to refer to each and every piece of relevant evidence. It is apparent, on a fair reading of the Tribunal's reasons as a whole, that it gave careful consideration to Ms Paridis' probity and whether findings of dishonesty were warranted.
The Board's application for leave: the merits of grounds 4 and 5
78 Grounds 4 and 5 do not raise questions of law. They are incompetent. In any event, the Board's contentions are without merit.
79 The Tribunal found, at [100]:
"The Tribunal views the admitted allegations, in particular, those relating to [Ms Paridis'] trust account, as a serious breach of the public trust for a practitioner licensed under the Settlement Agents Act, and that it warrants a suspension of her licence. The Tribunal does not agree with the Board's submission that [Ms Paridis'] licence be cancelled and that she be permanently disqualified from holding a licence. To do so would be to find that Ms Paridis is incapable of re-establishing herself over time and that cannot be said on the evidence presented to the Tribunal (see Grljusich v Andrews [2003] WASCA 206)."
80 Ordinarily, where a settlement agent has been found unfit to practise, the appropriate order will be cancellation of his or her licence and disqualification (either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the Tribunal or until the further order of the Tribunal) from holding a licence or triennial certificate or both. Also, ordinarily, where a finding is not made that a settlement agent is unfit to practise, but there is, nevertheless, proper cause for disciplinary action, some lesser penalty will be warranted. Plainly, however, each case must depend on its particular facts and circumstances. Generally see New South Wales Bar Association v Evatt at 183; Grljusich v Andrews [2003] WASCA 206 at [141].
(Page 45)
81 In the present case, the Tribunal did not make a finding that Ms Paridis was unfit to practise. It found, in substance, that Ms Paridis had seriously breached her professional duties, but that suspension rather than disqualification was appropriate. It is apparent that the Tribunal was satisfied, by implication, in the context of dishonesty not having been established and the existence of several mitigatory features, that Ms Paridis was capable of re-establishing herself as a capable and reliable settlement agent, and that she had made some progress in that regard since the occurrence of the disciplinary offences in question.
The Board's application for leave: conclusion
82 Ground 2 is not of sufficient merit, and does not raise an issue of sufficient importance, to require a grant of leave. The other grounds do not raise questions of law and are, in any event, without merit. The Board's application should be dismissed.
560
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