Chief Executive, Department of Justice and Attorney-General v Tomic [2020] QCAT 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chief Executive, Department of Justice and Attorney- General v Tomic [2020] QCAT 83 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (applicant) v MICHELLE ANNE TOMIC (respondent) APPLICATION NO/S: OCR187-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 9 March 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kent ORDERS: Ms Tomic is reprimanded. Ms Tomic is ordered to pay a fine of $10,000 to the Chief Executive, Department of Justice and Attorney- General within 28 days of the date of this order. Ms Tomic is disqualified from holding or obtaining a licence or certificate of registration under the Property Occupations Act 2014 (Qld) for a period of 10 years from the date of the order. The applicants are to file any further submissions relating to costs by 4pm on 24 March 2020. Ms Tomic must file any submissions relating to costs by 4pm on 21 April 2020. The respondents may make submissions in response to the Ms Tomic’s submissions by 4 pm on 5 May 2020. The issue of costs will be decided on the papers not before 6 May 2020. CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – whether grounds for disciplinary action – considerations of the correct penalty -- 1 of 9 -- 2 Property Occupations Act 2014 (Qld), s 172, s 186 Chief Executive, Department of Justice and Attorney- General v Ford [2017] QCAT 4 Chief Executive, Department of Justice and Attorney- General v Harper [2018] QCAT 22 Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development v Chalmers [2004] QCCTPAMD 60 Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development v Matheson [2006] [2006] QCCTPAMD 29 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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 [1] This matter is a disciplinary action against Michelle Anne Tomic who was a property manager. The applicant submits that she was responsible for the unlawful movement of the sum of $11,730 from her employer’s trust account into her own bank account. This occurred over a period of time spanning 11 May 2016 to 20 October 2016. [2] Ms Tomic was employed by Real Living Investments Pty Ltd (‘RLI’) trading as McGrath Real Estate Agents Springwood (‘McGrath’). She was employed as a property manager from 15 June, 2015 to 20 October, 2016. Mr Donald McMillen is a director and licence person in charge of RLI holding licence number 3968730. Suzanne May Rossi is the senior property manager and holds licence number 2400314. [3] In this matter the Tribunal is concerned with the period from 11 May 2016 to 20 October 2016. Over that time Ms Tomic had the responsibility of, amongst other duties, carrying out property administrative functions such as organising and facilitating maintenance works at properties. The agency operated a trust account for the management of rental properties. Staff at the agency used a trust accounting software package called Console Gateway (‘Console’). Evidence before the Tribunal was that McGrath assigned each staff member a unique login credential to access Console and that Ms Tomic had her own login to access Console. This meant she could create and also add new suppliers and process all transactions. [4] It was the policy of the agency that the creation of a new supplier or creditor required approval from a senior property manager at McGrath. Ms Tomic was employed in such a role. However on 11 May 2016 she created a new property maintenance creditor in Console called T and M Property and Painting (‘T and M’). The address used for this creditor was her home address and the creditor shared her bank account at Suncorp Metway. This creation of a new creditor was not authorised by the senior property manager Ms Rossi. -- 2 of 9 -- 3 [5] It was also McGrath policy that property maintenance requests by tenants be authorised by the property owner before they were carried out. In the transactions the subject of these proceedings Ms Tomic did not follow this policy. [6] Ms Tomic ceased employment with McGrath on 20 October 2016. On 11 November 2016 McGrath received an email from a property owner at Daisy Hill objecting to a charge made on 7 October for repairs to a hot water system. Review of the agency’s creditor ledger indicated that T and M had been paid $280 to fix the hot water system at that address. The owner objected as a new hot water system had only been installed at that address a few months earlier. The owner and tenant said that there had been no request for any maintenance work to be done. [7] On further inspection of the accounts of McGrath it appeared that between 21 May 2016 and 21 October 2016 on 44 occasions, amounts (totalling $11,734.00) were credited in the creditor ledger for repairs and maintenance work purportedly carried out at 31 properties by T and M. [8] On 1 December 2016 Mr McMillen transferred $11,734.00 from the McGrath general business account to the trust account and effected a reversal of the 44 credited amounts received by T and M. This was done to reimburse the owners of the managed properties as it appeared that the 44 transactions related to work that had not been carried out and/or requested. Investigations had revealed that the owners had either not required or not received the services that they had been charged for. [9] Ms Tomic made unsolicited contact with Ms Rossi on 4 January 2017. Ms Tomic told Ms Rossi that she had hired a friend to do the maintenance work. It was her view that he had failed to do the work on all occasions. The respondent’s version of events was that some of the work was done but the friend had moved away and she could no longer reach him. She then offered to repay the money at $50 per week. This was subject to the proviso that McGrath drew up a contract and dropped all the charges. [10] Ultimately Ms Tomic was interviewed by the Office of Fair Trading investigators and she made the following statements: (a) That she had created T and M as a creditor in Console to carry out maintenance jobs; (b) T and M was a business name used by her ex-husband; (c) She met an old acquaintance call Travis Bowen in a pub; (d) He was in his early 20s; (e) She agreed that even though he was unreliable in his employment record she agreed to him doing maintenance and repair work for McGrath; (f) She did not attend or inspect properties when tenant issues were reported but would send Mr Bowen; (g) She did not check the completed work which she said in hindsight was ‘a poor judgement call’; (h) Her arrangement was that Mr Bowen would text when the work was done and how much it had cost; (i) Once Mr Bowen had said that the work was completed she would create the work order invoice; -- 3 of 9 -- 4 (j) She would then enter the details into Console, crediting T and M in the creditor ledger for the amount charged; (k) She wold then debt the relevant property in Console and credit T and M in the ledger; (l) This meant that her actions approved and facilitated a payment of the amounts to her own bank account; (m) When the money arrived in her bank account she would withdraw the cash at an ATM; (n) The next step was to meet Mr Bowen in a hotel and pay him; (o) Initially she told the investigators that she withheld 10% in case she needed to pay GST; (p) She agreed T and M was not registered for GST; and (q) Her later version was that the 10% was a fee she charged for the use of the name T and M and her bank account. [11] Ms Tomic made the remark that she was a single mother with financial issues and was desperate for money. However this statement was made in the context of her attempt to explain why she thought it was reasonable for her to receive what she described as a fee. This comment was made by way of explaining the arrangements with the person called Mr Bowen. It was her contention that she would withdraw cash and then give it to Mr Bowen minus the amount of money that she was taking in what she described as a fee. [12] Ms Tomic could not advise where Mr Bowen lived or his whereabouts or his exact phone number. Jurisdiction of the Tribunal [13] In the decision Chief Executive, Department of Justice and Attorney General v Jones and Anor [2020] QCAT 10, [5]–[7], Member King-Scott set out the relevant jurisdictional provisions as follows: [5] Section 172 of the POA sets out the grounds for starting disciplinary proceedings against a licensee or real estate sales person. 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 — (a) … (b) the licensee or salesperson has contravened or breached— (i) this Act; or (ii) the Administration Act; or … (d) an amount has been paid from the fund because the licensee or salesperson did, or omitted to do, something that gave rise to the claim against the fund; -- 4 of 9 -- 5 … (g) for a licensee— (i) the licensee is not a suitable person to hold a licence; or … (iii) the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way; or … [6] Pursuant to section 173 of the POA, the Chief Executive may apply to the Queensland Civil and Administrative Tribunal (‘QCAT’) to conduct a disciplinary proceeding. The application must state: (a) the grounds for starting the proceeding; and (b) the conduct constituting the grounds; and (c) that an application will be made for 1 or more orders under section 186. [7] Section 186 of the POA provides as follows: (1) QCAT may make 1 or more of the following orders against a person in relation to whom QCAT finds grounds exist to take disciplinary action under this Act— (a) an order reprimanding the person; (b) an order that the person pay to the State, within the period stated in the order, a fine of not more than— (i) for an individual—200 penalty units; or (ii) for a corporation—1000 penalty units; (c) an order that the person pay compensation (inclusive of any commission to which the person is not entitled) to someone else who has suffered loss or damage because of the act or omission that resulted in the finding; (d) that the person be disqualified permanently, or for the period stated in the order, from holding a licence or registration certificate; (e) another order QCAT considers appropriate to ensure the person complies with this Act. (2) If the person is the holder of a licence or registration certificate, QCAT may also make 1 or more of the following orders against the person— (a) an order that the person’s licence or registration certificate be suspended for the period stated in the order; (b) an order that the licence or registration certificate be cancelled; -- 5 of 9 -- 6 (c) for a licensed individual who is an executive officer of a corporation, an order that the individual be disqualified permanently from being an executive officer of a corporation that holds a licence permanently or for a stated period; (d) an order imposing conditions on, or amending or revoking the conditions of, the person’s licence or registration certificate. Disciplinary grounds [14] The Tribunal was forwarded an application to start disciplinary proceedings from the Chief Executive, Department of Justice and Attorney-General. The grounds were stated to be based on section 172(1)(b)(i) of the Property Occupations Act 2014 (Qld) (‘POA’), in particular that as a real estate salesperson Ms Tomic had contravened or breached section 206 of the POA. It is alleged that she did this by rendering an account knowing it to be false in particular matters. There were four counts under this heading. [15] The second disciplinary ground was based on section 172(1)(h)(i) of the POA. This section will apply when a real estate salesperson has performed an activity of a licensee, been incompetent or acted in an unprofessional way. [16] The Chief Executive sought orders pursuant to section 186(1)(a) of the POA reprimanding the respondent. Also sought was an order pursuant to section 186(1)(b) of the POA that the respondent pay to the State a fine of not more than 200 penalty units pursuant to section 186(1)(c) of the POA. [17] An additional order sought was that pursuant to section 186(1)(d) of the POA, Ms Tomic be disqualified for a period of 10 years from being the holder of a licence or certificate of registration under the POA. [18] There was also a request relating to an order under section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’): that it would be in the interests of justice that the respondent pay the Chief Executive’s costs in this matter. Submissions made by the applicant [19] Submissions relating to liability and penalty were received in the Tribunal on 8 October 2019. These indicated that the offending involved dishonesty and that the respondent had acted in this manner on 44 occasions. [20] When confronted about the transactions the respondent maintained there was a person she paid to do the work she had billed for. However she was unable to provide sufficient information for that person to be located. It was the Chief Executive’s submission that the conclusion should be drawn that no such person existed. [21] Also submitted was that it logically follows from the respondent’s answers to questions by investigators that she showed no remorse for her actions. [22] The repetitive nature of Ms Tomic’s behaviour was highlighted and it was submitted that such behaviour required a significant period of disqualification and a fine. [23] It was put to the Tribunal that a relevant consideration was the need to send a message to the industry and the respondent that repetitive behaviour requires a significant period of disqualification and a fine. -- 6 of 9 -- 7 [24] There were a number of comparative decisions set out for the Tribunal and those were given due consideration. I have been referred to three cases as precedents. [25] In Chief Executive, Department of Justice and Attorney-General v Ford, 0F 1 Ms Ford stole $10,965.48 from her employer’s trust account over the period of one year. In that case there were no criminal proceedings, Ms Ford showed no remorse nor did she repay the amount she had taken. She was disqualified from holding a licence or certificate for 10 years and fined $10,000. [26] In Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development v Chalmers,1F 2 Mr Chalmers was a motor dealer and he stole $16,210 from his employer. He was also the subject of criminal proceedings that resulted in a conviction. He was disqualified for 10 years from holding a licence and from being an executive office of any corporation that held a licence under the then-relevant Act and he was ordered to pay the Chief Executive’s costs in the matter. [27] For the third authority referenced by the applicant I refer to the summary provided by Member Gordon in the decision of Ford.2F 3 This is Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development v Matheson [2006] CCT PD011-06 heard by the Commercial and Consumer Tribunal. In that case a real estate salesperson certificate holder was responsible for receiving rent and bonds on behalf of the real estate agency for which she worked. [28] She stole $13,200 over period of nearly three months, then gambled to try to repay the money. She admitted these matters, and had been charged and convicted of a criminal offence in respect of them, receiving an eight months’ suspended sentence for two years. The criminal court ordered her to pay restitution which she was doing at $50 per week. She had sought help for her gambling problem. The Chief Executive did not seek a monetary order in light of the earlier criminal proceedings. The Tribunal imposed a 10 year disqualification and ordered her to pay costs of $1,335. [29] The Chief Executive has sought orders that Ms Tomic be reprimanded, be disqualified for a period of 10 years and fined in the range of $10,000. Consideration [30] I have carefully reviewed the material file by the Chief Executive. I note that Ms Tomic did not file any material. [31] There are clear grounds for starting a disciplinary proceeding under the POA. [32] I accept that the Office of Fair Trading made numerous enquiries to locate and identify Mr Bowen but all attempts failed. It would appear that on the balance of probabilities that Mr Bowen did not exist and even if he did exist it is unlikely that he undertook maintenance as described and was paid in cash minus a 10% fee for such work. [33] It is evident from the material before the Tribunal that for the properties involved in this matter there was no appropriate maintenance carried out by T and M, Mr Bowen or the respondent. The material before the Tribunal went into detail relating to the 1 [2017] QCAT 4. 2 [2004] QCCTPAMD 60 3 Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4. -- 7 of 9 -- 8 various claims that were made in relation to maintenance work that formed the substance of the investigation. [34] Overall having reviewed the material the Tribunal is satisfied that the work ultimately was not carried out. The applicant submitted that the respondent, by the production of false invoices and false entries into the Console system, dishonestly rendered accounts knowing them to be false. The Tribunal accepts these submissions. [35] Ms Tomic has failed to respond to the proceedings commenced in the Tribunal. There is no evidence that Ms Tomic has reimbursed the money which she stole and which her employer has reimbursed to the owners of the relevant properties. [36] There is no evidence before the Tribunal that criminal proceedings have been instigated . [37] Ms Tomic held a real estate salesperson certificate which had been issued on 15 April 2011 and was due to expire on 15 April 2019. [38] The above information is presented to the Tribunal in witness statements and in a number of exhibits to an affidavit filed on behalf of the Chief Executive. Ms Tomic did not file any material as part of this proceeding in QCAT despite directions made by the Tribunal requiring her to do so. [39] Based on the evidence I find that Ms Tomic has committed the alleged breaches of the POA, and her actions also amount to acting in an unprofessional way such that she is not a suitable person to hold a licence. Appropriate penalty [40] The orders that the Tribunal can make upon a finding that grounds exist for taking disciplinary action against a person are set out in s186 of the POA. They include a reprimand, fines, and the payment of compensation. The maximum fine in the case of an individual is 200 penalty units. Also, a person’s licence of registration can be suspended or cancelled. Conditions or disqualifications can be imposed on the holding of a licence or registration certificate. [41] The Chief Executive has sought a period of disqualification for 10 years, a fine in the range of $10,000 and a reprimand. [42] I have been referred by the applicant to three cases on the basis that they were comparative to the current matter. I considered these as well as the more recent decision of Chief Executive, Department of Justice and Attorney-General v Harper [2018] QCAT 22 which references the Ford case. Member Gordon in the Ford case (at [34]-[35]) stated the following about an appropriate penalty: I need to take into account that the disciplinary process is to protect the public, to ensure that only suitable persons are licensed or registered and to ensure that high standards are kept by those in the industry. I must have regard to the fact that the public entrust their money to real estate agencies and their employees and the utmost confidence in the industry must be maintained. In the circumstances, I think it is appropriate to reprimand Ms Ford and to disqualify her from holding or obtaining a licence or certificate of registration… [43] After considering the relevant case law and the evidence I consider that it is appropriate to reprimand and to disqualify Ms Tomic from holding or obtaining a -- 8 of 9 -- 9 licence or certificate of registration under the POA for a period of 10 years, for the protection of the public and to reinforce the seriousness of the offences to her. [44] I consider that a period of 10 years as sought by the Chief Executive is consistent with the period of disqualification in Matheson, Chalmers, Ford and Harper. Costs [45] I note that there was also a request from the applicants relating to an order under section 102 of the QCAT Act and that it would be in the interests of justice that the respondent pay the Chief Executive’s costs in this matter. Despite the respondent failing to engage in the Tribunal process I consider that in the interest of procedural fairness it is appropriate to give all parties the opportunity to make submissions on the issue of costs. Orders [46] The orders are as follows: 1. Ms Tomic is reprimanded. 2. Ms Tomic is ordered to pay a fine of $10,000 to the Chief Executive, Department of Justice and Attorney-General within 28 days of the date of this order. 3. Ms Tomic is disqualified from holding or obtaining a licence or certificate of registration under the Property Occupations Act 2014 (Qld) for a period of 10 years from the date of the order. 4. The applicants are to file any further submissions relating to costs by 4pm on 24 March 2020. 5. Ms Tomic must file any submissions relating to costs by 4pm on 21 April 2020. 6. The respondents may make submissions in response to the Ms Tomic’s submissions by 4 pm on 5 May 2020. 7. The issue of costs will be decided on the papers not before 6 May 2020. -- 9 of 9 --