Chief Executive, Department of Justice and Attorney-General v Kerr [2022] QCAT 27

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chief Executive, Department of Justice and Attorney- General v Kerr [2022] QCAT 27 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY- GENERAL (applicant) v FRAZER EDWARD KERR (respondent) APPLICATION NO: OCR258-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 5 January 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Sammon ORDERS: Frazer Edward Kerr is reprimanded. Frazer Edward Kerr is disqualified from holding a licence under the Property Occupations Act 2014 (Qld) for a period of three years. Frazer Edward Kerr shall pay to the Chief Executive, Department of Justice and Attorney- General a fine of $1,000 by 11 February 2022. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS – REAL ESTATE AGENT – mismanagement of accounts. Acts Interpretation Act 1954 (Qld), schedule 1 Agents Financial Administration Act 2014 (Qld), s 6, s 22, s 35, s 39, s 42, schedule 1 Agents Financial Administration Regulation 2014 (Qld), s 3, s 17, s 18, s 19 Justices Act 1886 (Qld), s 110A Property Occupations Act 2014 (Qld), s 12, s 170, s 172, s 173, s 186 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 116 -- 1 of 12 -- 2 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Executive, Department of Justice and Attorney- General v Harper [2018] QCAT 22 Chief Executive, Department of Justice and Attorney- General v Jones [2020] QCAT 10 Chief Executive, Department of Justice and Attorney- General v Leach (No 2) [2012] QCAT 427 Chief Executive, Department of Justice and Attorney- General v Pease [2016] QCAT 178 Chief Executive, Department of Justice and Attorney- General v Rodgers [2018] QCAT 99 Clyne v New South Wales Bar Association (1960) 104 CLR 186. APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Introduction [1] The applicant Chief Executive applied to the Tribunal to conduct a proceeding on whether a disciplinary ground was established against the respondent Mr Kerr, a real estate agent. Mr Kerr accepted the allegations contained in the application. He also accepted the penalty initially proposed by the Chief Executive. However, it is necessary for the Tribunal to exercise its discretion as to whether the penalty initially agreed by the parties should be imposed. For reasons which follow, I agree that the penalty ultimately proposed by the Chief Executive and substantially accepted by Mr Kerr should be imposed on him. Background – legislative basis for the proceeding [2] In an application filed in the Tribunal on 25 August 2020,1 the Chief Executive applied to the Tribunal to start a disciplinary process against Mr Kerr under s 172 of the Property Occupations Act 2014 (Qld) (the PO Act). That provision sets out several available grounds to start a disciplinary proceeding, relevantly against a ‘licensee’ under s 173 of the PO Act. Section 173(1) provides that: 173 Starting disciplinary proceedings (1) The chief executive may apply, as provided under the QCAT Act,2 to QCAT to conduct a disciplinary proceeding. [3] At the relevant times, Mr Kerr was a 'licensee’ under the Act, and in particular, held a ‘resident letting agent licence’.3 Under that licence, he managed the letting and 1 The Chief Executive filed an affidavit of service in the tribunal on 4 December 2020 that the application was served on Mr Kerr on 3 December 2020. 2 The ‘QCAT Act’ is defined in schedule 1 of the Acts Interpretation Act 1954 (Qld) to be the Queensland Civil and Administrative Tribunal Act 2009 (Qld). 3 Statement of Charlie Franz DiBella dated 18 November 2018 (the DiBella statement), exhibit ‘CBD 18’. -- 2 of 12 -- 3 receipt of rents for a unit complex in the western suburbs of Brisbane.4 He was what is colloquially known as a ‘resident building manager’. That licence expired on 11 October 2017.5 [4] Ultimately,6 the ground relied upon by the Chief Executive in s 172 is s 172(1)(g)(i) as follows: 172 Grounds for starting disciplinary proceedings (1) The following are grounds for starting a disciplinary proceeding against a licensee or real estate salesperson under section 173— … (g) for a licensee— (i) the licensee is not a suitable person to hold a licence. [5] In written submissions filed with the Tribunal on 30 April 2021, the Chief Executive also sought to rely, as an alternative to s 172(1)(g)(i), on the ground contained in s 172(1)(g)(iii), that: (iii) the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way; In the circumstances, it is not necessary to consider this alternative ground. [6] Under s 186 of the PO Act, if the Tribunal finds grounds exist to take disciplinary action under the Act, then the Tribunal may make one or more of a variety of orders against the relevant person as contained in s 186(1). Those orders range from an order reprimanding the person,7 to an order that the person pay to the State a fine of not more than 200 penalty units for an individual,8 to an order that the person be disqualified permanently, or for the period stated in the order from holding a licence under the Act.9 [7] It is therefore necessary for the Tribunal to determine: (a) first, whether it is satisfied that a ground exists to take disciplinary action against a relevant person, and only if so; (b) secondly, the appropriate order or orders against the relevant person. The onus of proving the ground for disciplinary action exists lies on the applicant (here, the Chief Executive). The standard of proof required is the civil standard of balance of probabilities, on the basis that the more serious the allegation, the higher the level of proof required.10 4 DiBella statement, paragraphs (11), (26) and (27). 5 DiBella statement, exhibit ‘CBD 18’. 6 In the initial application made to the Tribunal, the Chief Executive raised other grounds under s 72 to start the disciplinary process, but in the written submissions filed by the Chief Executive on 30 April 2021, only relied on the ground under s 72(1)(g)(i). 7 Section 186(1)(a). 8 Section 186(1)(b). 9 Section 186(1)(d). 10 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 3 of 12 -- 4 Allegations made by the Chief Executive against Mr Kerr [8] The allegations relied on to start the disciplinary proceeding are contained in the affidavit of Charlie Franz DiBella (the DiBella affidavit), an Inspector of the Office of Fair Trading (OFT) (as part of the Department) in Annexure B to that affidavit. [9] Annexure B sets out a total of 40 paragraphs providing particulars of the allegations against Mr Kerr. Those paragraphs refer to the DiBella statement and other evidence filed with the Tribunal. Mr DiBella's statement describes how in 2015 and 2017 he was tasked with conducting investigations into matters relating to Mr Kerr and his resident letting business.11 Effectively, he was the chief investigator on behalf of the Chief Executive, which has led to this proceeding. [10] The event which sparked the investigation by the OFT was an audit report dated 11 November 2015 from a firm of chartered accountants and advisors who were responsible for auditing the trust account operated by Mr Kerr for his letting business.12 That audit report is ‘exhibit' CBD 2 attached to the DiBella statement. Although that report stated that the trust account had been satisfactorily kept under the then relevant legislation, the report did identify that there was ‘still a large amount of money that has been held on trust for more than 3 months’ and that had been drawn to the attention of Mr Kerr as licensee. [11] The necessity to disburse trust account funds to the people to whom the money is owed is an obligation under s 22(5) of the Agents Financial Administration Act 2014 (Qld) (AFAA).13 At the latest, that amount must be paid to the person to whom the money is owed within 42 days after the transaction is finalised.14 The failure to pay the relevant amounts for more than three months is, of course, well outside the maximum 42 days permitted. The allegation of failure by Mr Kerr to comply with this obligation is a category of allegations made against Mr Kerr, which I will refer to as the 'Category 1’ allegations (failure to pay the required money to the people owed that money). [12] What then followed was a detailed and lengthy investigation of Mr Kerr’s trust account as described in the DiBella statement. [13] On 8 July 2016, in response to notices issued to him under the relevant legislation, Mr Kerr produced to Mr DiBella, reconciliation account documents. Page 1 of the reconciliation document15 showed that a total of $35,539.98 in trust money had not been disbursed by Mr Kerr to persons who were entitled to those monies. In his statement, Mr DiBella categorised that amount as follows: 11 DiBella statement, paragraph (2). 12 DiBella affidavit, Annexure B, paragraph (6) and DiBella statement, paragraph (3). 13 In the initial application filed in the Tribunal, the Chief Executive relied on a ground of disciplinary action under s 172(1)(b)(ii) of the PO Act. That ground is a contravention or breach of the ‘Administration Act’, defined in the Dictionary (schedule 2) of the PO Act to mean the AFAA. In the Chief Executive’s written submissions, the Chief Executive simply relied on the ground that Mr Kerr is not a suitable person to hold a licence, with the contraventions of the AFAA going to that ground. 14 Section 22(5) AFAA. 15 DiBella statement, Exhibit CBD 11. -- 4 of 12 -- 5 (a) 51 transactions totalling $12,845.12 of deposits had been received as far back as January 2003 for forward deposits that had not been disbursed; (b) 26 transactions totalling $7,388.09 were unallocated to unit owners, with transactions being received as far back as September 2007; (c) trust creditors were owed monies totalling $8,606.77; (d) bond monies totalling $6,700 were held in trust. Those bonds were required to be paid to the Residential Tenancies Authority (RTA),16 or to occupants upon leaving the premises. [14] The matters referred to in (a), (b), and (c) are the subject of the allegations in Category (1). The matter referred to in (d) is the subject of the allegations against Mr Kerr which I will refer to as ‘Category 2’ allegations (failure to pay bond to the RTA). [15] On 13 July 2016, a delegate of the Chief Executive took control of Mr Kerr’s trust account pursuant to a notice under s 42 of the AFAA. [16] The delegate of the Chief Executive authorised payment of the money owing to the persons concerned. In other words, no person was deprived of the money which they were owed. In October 2016, the delegate returned control of the trust account to Mr Kerr. [17] On 22 December 2017, the auditors for Mr Kerr’s firm provided a report17 on reconciliation of Mr Kerr’s trust account with the requirements of the AFAA and found a number of non-compliances: (a) the auditor could not complete the audit up until 30 June 2017 (as the intended date for the audit period) because the latest reconciliation provided by Mr Kerr finished on 31 March 2017; (b) from 31 March 2017 to 30 June 2017 (the audit year end date) there were eight transactions on the trust account; (c) the auditor was unable to conduct a second unannounced examination of the trust account, as Mr Kerr could not be contacted by the auditor; (d) the trust account had not been satisfactorily kept under the AFAA; (e) there were no trust account reconciliations undertaken for the months of April, May and June 2017, even though a total of eight transactions had occurred in those months; (f) accounts were not allocated correctly within the trust accounting software used by Mr Kerr; (g) there was a large amount of money held in trust for more than three months and this had been drawn to the attention of Mr Kerr by the auditor. [18] Section 3(1) of the Agents Financial Administration Regulation 2014 (the Regulation) made under the AFAA requires a principal agent to keep a particularised list of books accounts and records. Section 3(2) requires that those books be kept in a way that can be properly audited. Section 17(1) of the Regulation requires that reconciliations of 16 AFAA, s 22(5) and the Residential Tenancies and Rooming Accommodation Act 2008, s 116. 17 DiBella statement, Exhibit CBD 28. -- 5 of 12 -- 6 trust account cash books must be done within five business days after the end of each month. Section 18 of the Regulation lists the requirements of a reconciliation obliged to be undertaken under s 17(1) of the Regulation. Section 19 of the Regulation requires a principal agent to keep a separate ledger account in the trust account ledger for each person on whose behalf the principal agent receives trust money. [19] The matters in the auditor’s report dated 22 December 2017 in (a)-(f) above are part of the allegations against Mr Kerr which I will refer to as forming the ‘Category 3’ allegations (failure to comply with account-keeping requirements). [20] Furthermore, that the auditor could not provide a report to the OFT for the financial year ending 30 June 2017, is also the subject of allegations by the Chief Executive under Category 3. Annexure B to the DiBella affidavit18 alleges that s 35(2) of the AFAA in Mr Kerr’s case, required an audit for his agent’s trust fund to be provided to the Chief Executive within four months after the end of June 2017, that is, by 31 October 2017. Paragraph (32) alleges that the audit report dated 22 December 2017 was provided on 3 January 2018, over two months late. [21] The Chief Executive contends that Mr Kerr’s licence expired on 11 October 2017, and he stopped operating under his resident letting agent licence then.19 [22] On 5 November 2018, after no further reconciliation documents or audit reports were received by the Chief Executive, a delegate of the Chief Executive appointed a receiver over Mr Kerr’s trust property.20 On 20 December 2018, the receiver provided an interim report21 to the Department of Justice and Attorney-General on the state of Mr Kerr’s trust account. The receiver expressed the opinion that the amount remaining in the trust account was sufficient to cover all potential claims to be made against it. However, the receiver was also of the opinion that Mr Kerr had failed to meet the requirements of the Regulation in record keeping, citing ss 3, 17 and 18. [23] In the receiver’s ‘Claims Report' dated 8 July 2019,22 she stated that: I have not been provided with bank reconciliations for this trust account, no standard EOM [end of the month], or end of year reports. I have seen no proper account keeping records for any period. During investigations, it was noted that there are an extraordinary number of: - Unexplained transactions - Booking transfers - Payment reversals - Cancelled receipts - Anomalies in actual banking to banking recorded. 18 Paragraphs (30)-(31). 19 DiBella affidavit, Annexure B paragraph (36). 20 DiBella affidavit, Annexure B, paragraph (26). 21 Statement of Julie Ann Williams dated 9 December 2019, ‘Exhibit’ JW5, p 9. 22 Statement of Ms Williams, Exhibit JW6, p 46. -- 6 of 12 -- 7 The accounts have not been operated in a manner required under the act.23 [24] Finally under the Category 3 allegations, Annexure B to the DiBella affidavit refers to s 39 of the AFAA. That provision requires that within two months after a principal agent stops being a principal agent, the agent must have the agent's trust accounts audited by the agent’s auditor and file the auditor’s signed original audit report with the Chief Executive. [25] Annexure B of the DiBella affidavit provides particulars of an allegation of a failure to comply with s 39 after Mr Kerr’s licence expired.24 The particulars describe that Mr Kerr was required to have his trust account audited for the period 1 April 2017 to 11 October 2017, when his licence expired and he stopped operating under his resident letting licence agent. [26] The particulars continue that Mr Kerr had until 12 December 2017 to have the trust account audited for the final order, and to file the auditor’s report with the Chief Executive. Paragraph (38) of the particulars states that no audit report has been lodged with the chief executive for that period, contrary to s 39(2) of the AFAA. Response by Mr Kerr to the allegations [27] In an amended response dated 10 March 2021, Mr Kerr stated that: I accept all the allegations contained in the application, in Annexure ‘A' and Annexure ‘B’ from the Office of Fair Trading … [28] I am also satisfied that the allegations contained in Annexure B of the DiBella affidavit are substantiated to the requisite standard of proof. The allegations particularised in Annexure B are supported by documents filed with the Tribunal and provided to Mr Kerr. Included in those documents are the DiBella statement, which refers to, and has attached to it, many hundreds of pages of documents as ‘exhibits’ to that statement. Also included in the documents filed with the Tribunal and provided to Mr Kerr is the statement of the receiver, Julie Ann Williams. Attached to her statement are the reports referred to in Annexure B. [29] Each of the statements are signed and verified under s 110A(6C)(i) and (ii) of the Justices Act 1886 (Qld). Section 110A(1) states that the section applies if a magistrate is conducting a proceeding with a view to determining whether a defendant should be committed for trial or sentence for an indictable offence. That is not the purpose of the statements in this case, but the effect of the verification is that it contains, in each case, substantiation that the contents are true to the best of the maker’s knowledge and belief and that in making the statement the maker knows that they may be liable to prosecution for stating in it anything the maker knows to be false. [30] I am satisfied that the ground alleged against Mr Kerr under s 172(1)(g)(i) of the PO Act, that he is not a suitable person to hold a licence, when he held the licence,25 is 23 Which I infer to be the AFAA and the Regulation made under it, since this is the legislation which imposes obligations on licensees on account keeping. 24 Paragraphs (35)-(38). 25 Section 170 of the PO Act defines a licensee for the purposes of s 172 to include a person who has held a licence under the Act at any time within three years before a proceeding involving the person is started under part 9 of the Act. Mr Kerr held a licence until 11 October 2017 and the proceeding was commenced on 25 August 2020, within the three-year period. -- 7 of 12 -- 8 substantiated. Having found that the allegations against Mr Kerr have been substantiated, it is then necessary for me to determine the appropriate order which should be made under s 186 of the PO Act. Submissions by the Chief Executive on the appropriate penalty [31] In written submissions filed on 30 April 2021, the Chief Executive submitted on the appropriate orders to be made against Mr Kerr. Firstly,26 the Chief Executive submits that: Clients need to be able to have confidence that money received by agents is protected and will be received by the client in accordance with the legislation. [32] At paragraph (34), the Chief Executive submits that the provisions of the AFAA and the Regulation contravened are in place to foster an industry that has the confidence of the public. [33] I agree with these submissions. Relevantly, the object of the PO Act contained in s 12(1)(a) is to provide a system for licensing and regulating persons as property agents or resident letting agents that achieves an appropriate balance between: (i) the need to regulate for the protection of consumers; and (ii) the need to promote freedom of enterprise in the marketplace. [34] A further object of the Act described in s 12(1)(b) is: to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property. [35] The object of the AFAA stated in s 6 is to: protect consumers from financial loss in dealings with agents regulated under an Agents Act.27 [36] The jurisdiction of the Tribunal in matters such as this is protective of the public, rather than having a purpose of a punitive effect or to exact retribution against those who offend against the requirements of the relevant legislation.28 [37] The written submissions of the Chief Executive also make points about Mr Kerr's conduct as an agent which led to this proceeding which count both in his favour and against his favour: (a) Mr Kerr had not caused a loss of funds to any clients.29 He did not steal funds from any client; (b) by his admission of all grounds and particulars alleged in the Chief Executive’s application to the Tribunal, it was not necessary for the proceeding to go to a full hearing;30 26 Paragraph (33). 27 A term defined in the Dictionary (schedule 1) of the AFAA to include the PO Act. 28 Clyne v New South Wales Bar Association (1960) 104 CLR 186. 29 Paragraph (36). 30 Paragraph (45). -- 8 of 12 -- 9 (c) on the other hand, as of March 2017, there was a total of $36,088.21 in his trust account that had not been disbursed to clients. $12,845.12 of that money was for amounts received between January 2003 and October 2013;31 (d) Mr Kerr had kept bond monies totalling $6,700 in his trust account when they should have been forwarded to the RTA.32 It must also be said that Mr Kerr’s management of his trust account was far from satisfactory, and the shortcomings in his management of the trust account were not limited to a single isolated event, but continued over a period of time even after his auditor had drawn to his attention, non-compliance with the requirements of the relevant legislation. Comparative cases referred to by the Chief Executive [38] The written submissions of the Chief Executive refer to several decisions of the Tribunal as a comparative basis for the orders which the Chief Executive submits should be made against Mr Kerr. Those decisions and their comparison to the facts of Mr Kerr's case may be summarised as follows. [39] In Chief Executive, Department of Justice and Attorney-General v Harper,33 Ms Harper was a licensed real estate agent and director of a licensed corporation. She carried out a residential letting and management business, in a similar way to the business conducted by Mr Kerr. A receiver appointed over the trust account discovered a shortfall in that account of $49,869. She repaid the amount back five months later. She had failed to pay bonds totalling $17,416 to the RTA. She also credited rent being as being paid to the unit owner totalling $33,410, in respect of a unit leased by the corporation of which she was the director, when rent had not been received. [40] The orders made by the Tribunal were that Ms Harper was reprimanded, ordered to pay a fine of $8,000 and was disqualified from holding or obtaining a licence for a period of 10 years. That case was much more serious than that of Mr Kerr. [41] In Chief Executive, Department of Justice and Attorney-General v Jones,34 Mr Jones who had in the past been a licensed real estate agent, at a time when he was not the holder of a licence, kept as commissions to which he was not entitled, an amount of $88,288.58. There was a shortfall in his trust account of $18,087.75. Neither Mr Jones nor his associated company had refunded that amount. On five occasions, over five months, Mr Jones represented that tenants had paid rent for a property owned by Mr Jones’ client when rent had not been paid. On six occasions, contrary to a provision of the AFAA, Mr Jones had paid to himself and his partner amounts of money from his trust account. He also had failed to pay bonds to the RTA and had also lodged audit reports late. [42] The shortfall in the trust account and Mr Jones making payments to himself and his partner from the trust account make his conduct worse than that of Mr Kerr. Mr Jones was reprimanded, ordered to pay a fine of $5,000, was permanently disqualified from 31 Paragraph (43). 32 Paragraph (42). 33 [2018] QCAT 22. 34 [2020] QCAT 10. -- 9 of 12 -- 10 holding a licence, and ordered to pay compensation of the deficiency in the trust account. [43] Chief Executive, Department of Justice and Attorney-General v Rodgers35 is the most comparable case to the conduct of Mr Kerr. Ms Rogers made a total of 28 payments from the trust account she operated as a licensed real estate agent, which were not recorded. She received 11 bond payments which were not paid to the RTA. She transferred $14,560 from the rentals general account to the trust account to allow the late funding of missing bonds. She also failed to reconcile her trust account against the bank balance as required by the Regulation and had otherwise failed to keep the required books, accounts and records as required by the Regulation. [44] Ms Rodgers’ lack of dishonesty and her cooperation was noted by the Tribunal in imposing orders that she be reprimanded, pay a fine of $3,000 and be disqualified for two years. [45] The conduct of the licensee in Chief Executive, Department of Justice and Attorney- General v Leach (No 2)36 was worse than that of Mr Kerr. Ms Leach was found to have failed to lodge trust account audit reports when required, failed to give written notice after opening a trust account, and failed to reconcile bank statements to trust account cashbook balances. She acted as a real estate agent while unlicensed for a period of six months. She failed to provide documents in response to a notice to produce them. The Tribunal found that Ms Leach acted in a way that lacked honesty, fairness and professionalism by sending an abusive email, and harassing a person in the course of her work as an agent. [46] The Tribunal noted that Ms Leach said she is not remorseful because she contended she had done nothing wrong. The Tribunal ordered that Ms Leach be reprimanded, disqualified from holding a licence until she provided evidence that she had passed courses of study about work as a real estate agent including managing trust accounts, and was ordered to pay a fine of $3,300. [47] Finally, in Chief Executive, Department of Justice and Attorney-General v Pease,37 Ms Pease was an employed real estate salesperson. Her conduct was to fail to pay, on 10 occasions between July 2010 and May 2011, a total of $16,000 in bond money to her employer’s trust account, or formally receipt that money or remit it to the RTA. The total amount involved was $16,000 which remained missing. Each of the tenants made claims against the relevant compensation fund, which were paid. There is no suggestion that the cash was retained by Ms Pease or that she benefited in some way from what happened. [48] The Tribunal imposed an order that she be reprimanded and pay compensation of $8,100 to the Chief Executive. Response by Mr Kerr on conduct [49] In his response dated 22 January 2021, Mr Kerr said that he was having some troubles with his programs for running and recording transactions at the business which he said ‘went back to the first program’ and then continued to January 2021. He also referred to some difficulties he was having with a member of the body corporate committee 35 [2018] QCAT 99. 36 [2012] QCAT 427. 37 [2016] QCAT 178. -- 10 of 12 -- 11 and subsequently with a new unit owner and the chairman of what apparently was the body corporate. [50] He also referred to some health difficulties he was suffering which ultimately led to him selling his unit in the apartment block and moving to Bundaberg, although that was after he asked the body corporate to release him from the management contract in October 2017, when Mr Kerr allowed his licence to expire. [51] In an amended response dated 10 March 2021, Mr. Fraser agreed to penalties imposed namely: (1) being disqualified from holding a licence under the PO Act for a period of three years; and (2) that he be fined $1,000. [52] In written submissions filed by the Chief Executive on 30 April 2021, the Chief Executive submitted that principle described by the High Court in Commonwealth v Director, Fair Work Building Industry Inspectorate38 is applicable. That principle is as follows: Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate penalty in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty.39 [53] That case was a proceeding for imposition of a civil penalty and the High Court was careful to distinguish it from a criminal proceeding, in which different considerations may apply. The principle is therefore applicable to the present case. [54] However, the Chief Executive’s written submissions also submitted that in addition to the orders that Mr Kerr agreed should be made, there should be an order reprimanding Mr Kerr. [55] Given that Mr Kerr had not agreed to an order that a reprimand be made against him, the Tribunal extended to him the opportunity to respond to the submission that a reprimand be ordered. [56] Mr Kerr responded in an email dated 14 December 2021, saying that he did ‘not have any additional information to submit’ on whether a reprimand should be made. However, the requirements of natural justice were met by Mr Kerr being given the opportunity to submit on imposition of a reprimand. [57] In my opinion, it is appropriate that the orders agreed to by Mr Kerr be made, and that an order be made that he be reprimanded. A reprimand amounts to chastisement of the conduct concerned and has been a common factor in the other decisions by the Tribunal referred to above. It represents the formal admonishment of the behaviour concerned. [58] There was no dishonesty in Mr Kerr’s dealing with his trust account and the evidence points more to a lack of proper management of his accounts. However, that conduct 38 (2015) 258 CLR 492 at 507, [58]. 39 Emphasis in original, footnote omitted. -- 11 of 12 -- 12 does mean that he is not presently a suitable person to hold a licence and it is appropriate that I make the orders described in the following paragraphs. Orders [59] Frazer Edward Kerr is reprimanded. [60] Frazer Edward Kerr is disqualified from holding a licence under the PO Act for a period of three years. [61] Frazer Edward Kerr shall pay to the Chief Executive, Department of Justice and Attorney-General a fine of $1,000 by 11 February 2022. -- 12 of 12 --