Chief Executive, Department of Justice and Attorney General v Lyn Patricia Robbie [2022] QCAT 200

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chief Executive, Department of Justice and Attorney General v Lyn Patricia Robbie [2022] QCAT 200 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (applicant) v LYN PATRICIA ROBBIE (respondent) APPLICATION NO/S: OCR008-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 13 April 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Matthews ORDERS: Proper grounds exist to take disciplinary action against Lyn Patricia Robbie and impose penalties. Lyn Patricia Robbie is disqualified permanently from being an executive officer of a corporation that may hold a certificate of registration and or license issued under the Property Occupations Act 2014 (Qld) effective immediately. Lyn Patricia Robbie is further permanently disqualified from holding a certificate of registration and license issued under POA effective immediately. Lyn Patricia Robbie must pay to the Chief executive a fine of $10,000.00 no later than 7 days after the issue of these orders. Each party is to pay their own costs, of and incidental to this application CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – where referral of disciplinary proceedings under s 173 of the Property Occupations Act 2014 (Qld) – whether grounds for disciplinary action – whether conduct is significant due to protracted dishonesty to take disciplinary action – whether fines imposed for general and specific deterrence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 (2) -- 1 of 5 -- 2 Property Occupations Act 2014, s 172 (1) (b) i, iii, (d) (g) ii, iii, 173, 186, 171 (a) Office of Fair Trading, Department of Justice and Attorney General v SJ Pty Ltd & Anor [2021] QCAT 239 Fillipini v Chief Executive, Department of tourism, Fair Trading and Wine industry Development [2009] 1 Qd R 230 Chief Executive, Department of Employment, Economic Development and Innovation v Belfol Pty Ltd (in liquidation) And Anor [2012] QCAT 26 APPEARANCES & REPRESENTATION REASONS FOR DECISION This matter was determined and heard on the papers pursuant to s 32 (2) of the Queensland Civil and Administrative Tribunal Act 2009 [1] This is an application for disciplinary proceedings against Lyn Patricia Robbie pursuant to section 173 of the Property Occupations Act 2014 (‘POA’) [2] The application outlines the grounds for the proceedings, the conduct which constitutes the grounds for disciplinary action and the orders sought pursuant to s 186 of the POA by the Chief Executive. [3] Jurisdiction of the tribunal to hear and decide disciplinary matters involving a licensee and real estate person is set out at section 171 (a) and s186 of the POA. [4] Prior to the proceedings commencing Lyn Patricia Robbie was a principal licensee and real estate agent as defined under the POA1 and was the director of Robbie and Robbie & Associates Pty Ltd which operated two trust accounts in the identic. [5] The POA regulates the conduct of real estate agents to ensure the maintenance of high standards, professional practice and procedure, and protection to the public.2 [6] The protection to the public in these like proceedings is paramount3, and whilst these proceedings are not punitive, [i]t remains to consider appropriate sanctions, not criminal penalties, but as a protective measure, in the interests of the public, and to maintain the integrity of the real estate industry. [7] The disciplinary proceedings comprise of six (6) grounds where full admissions have been made by Lyn Patricia Robbie and are provided for in the agreed statements of facts before the tribunal which outlines two (2) determinations to be made by the tribunal. [8] These determinations are; (a) Findings relating to disciplinary grounds; and 1 See section 170 of the Property Occupations Act 2014 (Qld) 2 Office of Fair Trading, Department of Justice and Attorney General v SJ Pty Ltd & Anor [2021] QCAT 239. 3 Fillipini v Chief Executive, Department of tourism, Fair Trading and Wine industry Development [2009] 1 Qd R 230 at 27. -- 2 of 5 -- 3 (b) Orders relating to penalty. [9] Therefore, these reasons are confined to the issues for determination only. Findings relating to disciplinary grounds: [10] The six (6) grounds which form the basis of the proceedings comprise of serious breaches to sections 172, and 206 of the POA and section 21 of the Agents Financial Administration Act 2014 (‘AFAA’) [11] Each ground comprises of breaches of conduct by Lyn Patricia Robbie over a protracted period of time involving dishonesty and inappropriate dealings. [12] The six agreed grounds are defined and abridged by the Chief executive as follows: (a) A breach of section 172 (1) (b) (i) of the POA, in that Lyn Patricia Robbie has breached section 206 (2) (a) of the POA by dishonestly converting money held in trust to another by the payment of trust money held for one person paid to another person. (b) A breach of section 172 (1) (b) (i) of the POA, in that Lyn Patricia Robbie breached section 206 (2) (b) of the POA by dishonestly converting money held in trust to another by rendering an account she knew to be false in a material particular. (c) A breach of section 172 (1) (b) (ii) of the POA in that Lyn Patricia Robbie breached section 21 (1) of the AFAA that an amount paid to a trust account must be kept in the account until it is paid out under the Act. (d) A breach of section 172 (1) (g) (i) of the POA in that Lyn Patricia Robbie is not a suitable person to hold a license by virtue of her conduct and has acted in an unprofessional way. (e) A breach of section 172 (1) (g) (iii) of the POA in that Lyn Patricia Robbie has in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way; and (f) A breach of section 172 (1) (d) of the POA, in that an amount has been paid from the fund because the respondent did, or omitted to do, something that gave rise to the claim against the fund. [13] The respondent does not dispute the allegations which amount to the six agreed grounds, nor the recommendations regarding appropriate penalties as proposed by the Applicant. [14] The Chief executive has provided comprehensive materials including submissions, auditing reports, bank statements, ledgers, statements and other supporting evidence which clearly demonstrates that significant and protracted professional breaches have occurred including dishonesty and inappropriate dealings by Lyn Patricia Robbie. [15] It is therefore appropriate given the circumstances that Lyn Patricia Robbie is reprimanded. [16] Given the nature of the breaches, and the protracted dishonest dealings, the question than is, should the penalties be lengthy, which would allow for her Lyn Patricia Robbie (if she so chooses) to consider recommencement of her career following the expiration of the disqualification period, or permanent disqualification. -- 3 of 5 -- 4 [17] The Applicant seeks permanent disqualification and a fine which at the high range can amount to 200 penalty units. [18] The tribunal is satisfied that a fine is also appropriate in these circumstances as a deterrent, and to offset the 25 claims which were paid out by the Chief Executive amounting to a loss to the claims fund of $299.044.40. [19] The materials before the tribunal clearly show the inappropriate dealings which amount to a clear breach of the standards designed to protect the public and maintain high standards of professional practice and procedure. [20] I have taken the following into account from the submissions and materials on file when considering appropriate disciplinary actions and when imposing pecuniary penalties and was assisted in this decision by comparative alike matters. [21] Lyn Patricia Robbie is an aging woman that at the times of the inappropriate and unprofessional conduct was suffering from a significant number of health and mental health concerns which significantly affected her ability to perform her duties. [22] Lyn Patricia Robbie did not personally misappropriate funds from the trust account for her own financial gains. [23] The tribunal considers that it was never the intention of Lyn Patricia Robbie to be dishonest, but rather, the dishonesty occurred as a direct consequence of her fractured mental health and physical health and over the protracted period of time, her inability to function and perform her duties which was exacerbated due to her unwillingness to seek professional guidance and support. [24] Although contrite and remorseful, this does not detract from the fact that Lyn Patricia Robbie was dishonest, and the dishonest conduct was only discovered following an audit and enquiries from concerned homeowners. [25] But for the audit, and Lyn Patricia Robbie’s failing health, how long would she have been willing to continue the dishonest dealings to the detriment of those who trusted her to protect and serve their best interests. [26] Throughout all the investigations and auditing process Lyn Patricia Robbie was contrite and remorseful and assisted with investigations without hinderance. However, his does not detract from the significance of the protracted dishonest conduct and her inability to ensure that she was maintaining professional ethics and standards. [27] Lyn Patricia Robbie has made a financial reimbursement (albeit only a fraction of the total) from her own personal superannuation account into the accounts to alleviate the detriment caused, however, this deposit was made without the permission of the co account holder amounting to additional dishonesty. [28] Deterrence both general and personal is of great relevance to provide confidence to the public at large that the denunciation of this type of conduct will not be tolerated. [29] Her conduct placed her profession in disrepute and as such it is the expectation of the public that disciplinary action is imposed where warranted. [30] Therefore, I consider that, regardless of, the mitigating factors, and the contrite remorse shown by Lyn Patricia Robbie, Lyn Patricia Robbie is not a suitable person to hold a licence due to her unprofessional and dishonest dealings. -- 4 of 5 -- 5 [31] The penalties imposed will serve as a protection to the public and to reinforce the seriousness of the offences she has committed. ORDERS: [32] Therefore, it is the decision of the tribunal that; 1. Proper grounds exist to take disciplinary action against Lyn Patricia Robbie and impose penalties. 2. Lyn Patricia Robbie is disqualified permanently from being an executive officer of a corporation that may hold a certificate of registration and or license issued under the Property Occupations Act 2014 (Qld) effective immediately. 3. Lyn Patricia Robbie is further disqualified permanently from holding a certificate of registration and license issued under POA effective immediately. 4. Lyn Patricia Robbie must pay to the Chief executive a fine of $10,000.00 no later than 7 days after the issue of these orders. 5. Each party is to pay their own costs, of and incidental to this application. -- 5 of 5 --