Chief Executive, Department of Justice and Attorney-General v Neilson [2019] QCAT 391

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Chief Executive, Department of Justice and Attorney- General v Neilson [2019] QCAT 391 PARTIES: CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (applicant) v PAMELA DAWN NEILSON (respondent) APPLICATION NO/S: OCR267-18 MATTER TYPE: Occupational regulation matters DELIVERED ON: 20 December 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Browne ORDERS: 1. The proper applicant in the proceeding is the Chief Executive, Department of Justice and Attorney-General and the record is amended accordingly. 2. Pamela Dawn Neilson is reprimanded. 3. Pamela Dawn Neilson’s registration certificate is suspended for a period of four (4) months effective from the date of this order. 4. Pamela Dawn Neilson is ordered to pay a fine of ten thousand dollars ($10,000.00) to the Chief Executive, Department of Justice and Attorney- General within 28 months from the date of this order. 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 – where applicant and respondent filed agreed statement of facts and submissions as to disciplinary action to be taken – considerations of the appropriateness of disciplinary action to be taken -- 1 of 6 -- 2 Property Occupations Act 2014 (Qld), s 34, s 83(1), s 151, s 172(1)(e), s 172(1)(g)(i), s 172(1)(g)(iii), s 173, 186, schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 REPRESENTATION: Applicant: R Vize, Principal Legal Officer, Legal Advice and Advocacy, Department of Justice and Attorney-General Respondent: Lynch Andrews Lawyers 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 Pamela Dawn Neilson lost her real estate agents licence because she failed to notify the Office of Fair Trading (‘OFT’) that she was bankrupt. More importantly, Ms Neilson received a commission from the sale of properties during the period from 13 October 2015 to 31 January 2017, inclusive, when she was not an authorised person to hold a real estate agents licence or receive reward. The Chief Executive, Department of Justice and Attorney-General has referred disciplinary proceedings to the Tribunal concerning alleged breaches of the Property Occupations Act 2014 (Qld) (‘the Act’) arising from Ms Neilson’s conduct.1 Relevantly, s 173 of the Act provides that the Chief Executive may apply to QCAT to conduct a disciplinary proceeding. The application must state the grounds for starting the proceeding; the conduct constituting the grounds; and that the application will be made for one or more orders under s 186. The Chief Executive and Ms Neilson agree on the facts and circumstances giving rise to the alleged breaches of the Act and on the orders to be made following a finding that grounds exist to take disciplinary action under s 186 of the Act.2 The disciplinary grounds There are 4 disciplinary grounds concerning Ms Neilson’s conduct arising from her bankruptcy such as the failure to notify the Chief Executive within fourteen (14) days of becoming bankrupt and performance of duties as a real estate agent while unlicensed including receiving a commission generated from the sale of properties. Further, Ms Neilson applied to renew her licence on 29 September 2016 and did not disclose her bankruptcy.3 1 Application or referral – disciplinary proceeding filed 9 October 2018. 2 Joint submissions on penalty and agreed facts filed 27 September 2019. See Tribunal Directions dated 24 July 2019. Ground 1(b) of the referral was withdrawn and Ground 1(c) was amended, by consent. 3 Joint submissions on penalty and agreed facts filed 27 September 2019. -- 2 of 6 -- 3 I have carefully considered the evidence and material filed by the Chief Executive in support of the grounds for disciplinary action together with the submissions and evidence filed by Ms Neilson. I am satisfied that the four grounds concerning Ms Neilson’s conduct during the period from 13 October 2015 to 31 January 2017, inclusive, are substantiated and I make the following findings: Ground 1(a) Section 83(1) – Licensee to give written notice to chief executive of changes in circumstances Under s 34 of the Act an individual is not a suitable person to hold a licence if the individual is, amongst other things, an insolvent under administration. Section 83(1) of the Act requires a licensee to give written notice to the Chief Executive of a ‘prescribed change’ in the licensee’s circumstances within fourteen (14) days after the change. A ‘prescribed change’ includes ‘the coming into existence of circumstances’, such as becoming an insolvent under administration.4 Ms Neilson held a real estate agent principal licence effective from 29 September 2005 and was therefore a licensee for the purposes of s 83(1) of the Act.5 Ms Neilson as a licensee became bankrupt on 13 October 2015. Ms Neilson failed to notify the Chief Executive within fourteen (14) days of becoming bankrupt as required under s 83(1) of the Act. Ms Neilson verbally notified the Chief Executive of the bankruptcy on 7 December 2016. Ground 1(a) is substantiated. Ground 1(c) Section 151(1) - Uncertified salesperson Section 151(1) of the Act provides that a person must not act as a real estate salesperson unless the person holds a registration certificate. Ms Neilson became unauthorised to hold a real estate agent licence on 13 October 2015 when she became bankrupt. Ms Neilson’s licence was later cancelled on 7 December 2016 and backdated to 13 October 2015. During the period from 13 October 2015 to 31 January 2017, inclusive, when Ms Neilson did not hold a property agent licence she entered into appointments to act where she agreed to sell properties and received commission. Ms Neilson did not have access or control over the finances of the relevant real estate agency including access or control to the Trust Account nor any input or influence over the operations of the relevant agency.6 Although Ms Neilson was eligible to obtain a salesperson registration certificate as at the date of her bankruptcy she did not do so until 7 February 2017. Ms Neilson did receive a commission generated from sales when she did not hold a licence. Ground 1(c) is substantiated. 4 A ‘prescribed change’ means a change prescribed under a regulation (s 83(2) of the Act). See ‘prescribed change’ under s 5(e) of the Property Occupations Regulation 2014 (Qld) that means ‘the coming into existence of circumstances for the licensee that would, under s 34(1) or 35(1) or (2) of the Act, affect the licensee’s suitability to hold a licence if the licensee were applying for the licence. 5 Application or referral annexures, Annexure ‘B’, p 6, see ‘MW34’. Under schedule 2 of the Act a ‘licence’ means a property agent licence or a resident letting agent licence and a ‘property agent licence’ means an auctioneer licence or a real estate agent licence. 6 Joint submissions on penalty and agreed facts filed 27 September 2019. -- 3 of 6 -- 4 Ground 1(d) Section 221(1) – Supply false or misleading documents to an official Ms Neilson failed to disclose her bankruptcy in her licence renewal application with the OFT on 29 September 2016. More importantly, Part 10 of the renewal application contained suitability checklist warnings to applicants stating that it is an offence to supply incorrect or misleading information and that supplying incorrect or misleading information may result in the license being cancelled and prosecution being commenced. Relevantly, s 221(1) of the Act provides that a person must not give an official document containing information the person knows is false or misleading in a material particular. Here, Ms Neilson did not disclose her bankruptcy on the renewal application. Ground 1(d) is substantiated. Ground 2 Section 172(1)(e) – the licensee fraudulently or improperly obtained a licence One of the grounds for starting a disciplinary proceeding against a licensee is, as provided under s 172(1)(e) of the Act, the licensee fraudulently or improperly obtained, or helped someone else to fraudulently or improperly obtain, a licence or registration certificate. Here, Ms Neilson self-reported her bankruptcy to the OFT on 7 December 2016. As found above, Ms Neilson despite being a person who was no longer suitable to hold a licence by reason of her bankruptcy and having supplied false and misleading information to the OFT in her renewal application, acted as an unlicensed real estate agent during the period 13 October 2015 to 31 January 2017, inclusive. Ms Neilson also received $144,021.65 reward in commission generated from property sales. Ms Neilson applied for a real estate sales person certificate disclosing that she was currently bankrupt and was issued a certificate with specific conditions allowing her to work in the real estate industry. Ms Neilson did not disclose her bankruptcy until some fourteen (14) months after the fact. More importantly, Ms Neilson attended the OFT on 28 September 2017 to participate in a formal interview and made certain admissions relevant to the referral containing the four grounds of disciplinary action. The parties agree and I accept that for the purposes of imposing orders in these proceedings that Ms Neilson did not act fraudulently when obtaining her licence. I am satisfied that Ms Neilson, by reason of her late notification of the bankruptcy and failure to disclose her bankruptcy on her renewal application, failed to comply with legislative requirements which would have safeguarded her against the prolonged period of acting in contravention of the Act. In particular, Ms Neilson made a false representation about her status as being a suitable person to hold a licence on her licence renewal application and despite the fact that she was not a suitable person to hold a licence she sold properties and received a commission during the period that she was unlicensed. Ground 2 is substantiated. -- 4 of 6 -- 5 Ground 3 Section 172(1)(g)(i) – the licensee is not a suitable person to hold a Principal Agent licence One of the grounds for starting a disciplinary proceeding under s 172 of the Act is that the licensee is not a suitable person to hold a licence.7 Here, Ms Neilson held a real estate principal licence from 29 September 2005 and would therefore be considered experienced in the real estate industry. As I have found above, Ms Neilson supplied false or misleading information to an official in the form of her licence renewal application after she became bankrupt in order for her licence to be renewed. She also received a reward in the form of commissions for activities carried out as a principal real estate agent during the time that she was bankrupt and therefore unauthorised to hold a licence. I am satisfied that Ms Neilson has demonstrated a disregard for legislative requirements intended to safeguard against a licensee who is not a suitable person from acting as an unlicensed principal real estate agent. Although, Ms Neilson self- reported her bankruptcy and voluntarily attended the OFT to participate in an interview about the matters giving rise to these disciplinary proceedings, she has shown a disregard for legislative requirements for a period of fourteen (14) months. Ground 3 is substantiated. Ground 4 Section 172(1)(g)(iii) – the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way I am satisfied, having made the findings set out above, that Ms Neilson conducted herself in a way that is unprofessional. Ms Neilson failed to notify the OFT within the relevant time about her bankruptcy, failed to disclose her bankruptcy in her licence renewal application and continued to sell properties and receive a commission or reward when she was bankrupt and not a suitable person to hold licence. Ground 4 is substantiated. Appropriate penalty I find that grounds exist to take disciplinary action under s 186 of the Act, having found the four disciplinary grounds to be substantiated. Here, the parties seek orders under s 186 of the Act that Ms Neilson be reprimanded, her registration be suspended for a period of four (4) months effective from the date of this order and that Ms Neilson pay a fine of ten thousand dollars ($10,000.00) within 28 months from the date of this order.8 I am satisfied the proposed orders are appropriate. Here, Ms Neilson self-reported her conduct and cooperated with the investigation making full admissions prior to the referral of the disciplinary proceedings. Further, Ms Neilson accepted the disciplinary grounds at an early stage in the proceedings. I accept the evidence before me of mitigating circumstances that I find compelling and relevant to the disciplinary proceedings and orders to be made under s 186 of the Act. Such as, Ms Neilson’s personal circumstances including tremendous personal tragedy in her family that caused Ms Neilson to suffer from severe stress, anxiety, as well as experiencing other adverse impacts on her health and well-being. 7 The Act, s 172(1)(g)(i). 8 Ibid, s 186(1)(a), s 186(2)(a) and s 186(1)(b). -- 5 of 6 -- 6 There is also evidence before me that I accept is relevant to the discretion to take action under s 86 of the Act such as Ms Neilson’s involvement in the relevant real estate agency. Ms Neilson is a valued employee and if she were no longer able to act as a real estate salesperson for the agency, the business would lose revenue and most likely result in the termination of employment of at least three to four personnel currently employed by the relevant agency. I have considered the relevant authorities involving conduct by other licensees and disciplinary action taken by the Tribunal under the Act.9 I have also considered the objects of the Act such as, amongst other things, to provide a system for licensing and regulating persons as real estate salespersons that achieves an appropriate balance between the need to regulate for the protection of consumers and the need to promote freedom of enterprise in the market place.10 I am satisfied that the proposed orders are appropriate in this matter. Although Ms Neilson showed a disregard for the legislative requirements, she self-reported, has no previous disciplinary history, cooperated with the OFT and made full admissions as to the disciplinary charges. Further, Ms Neilson has suffered personal tragedy and I accept that she was experiencing severe stress and anxiety at the time of her conduct. I make orders as proposed by the parties. 9 Respondent’s submissions on penalty filed 24 June 2019 and submissions on penalty filed 13 May 2019. 10 The Act, s 12. -- 6 of 6 --