Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2016] QCAT 253

CITATION: Chief Executive, Department of Justice and Attorney-General v Penney–Filippini [2016] QCAT 253 PARTIES: Chief Executive, Department of Justice and Attorney-General (Applicant) v Sarah Louise Penney–Filippini (Respondent) APPLICATION NUMBER: OCR237-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 1, 2, 3 and 4 February 2016 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 19 July 2016 DELIVERED AT: Brisbane ORDERS MADE: IT IS THE DECISION OF THE TRIBUNAL THAT: 1. Grounds exist under s 497 of the Property Agents and Motor Dealers Act 2000 (Qld) for taking disciplinary action against Ms Penney-Filippini pursuant to s 496(1)(b)(i) and s 496(1)(g)(iii). THE TRIBUNAL DIRECTS THAT: 1. The Chief Executive, Department of Justice and Attorney-General file in the Tribunal two (2) copies and give to Sarah Louise Penney-Filippini one (1) copy of any written submission the Chief Executive wishes to make in relation to the orders the Tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00 pm on 16 August 2016. 2. Sarah Louise Penney-Filippini file in the Tribunal two (2) copies and give to the -- 1 of 38 -- 2 Chief Executive, Department of Justice and Attorney-General one (1) copy of any written submission she wishes to make in relation to the orders the Tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00pm on 13 September 2016. 3. The proceeding is listed for a half-day oral hearing on a date to be advised for the tribunal to consider the orders it may make pursuant to s 529 PAMDA or any other relevant legislation. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION – Disciplinary proceedings - Real estate agent – whether grounds for disciplinary action established under the Property Agents and Motor Dealers Act 2000 (Qld) – whether licensee breached the Act – whether licensee has been incompetent or acted in an unprofessional way – whether compliance with the audit requirements - whether real estate agent employed as a real estate salesperson an unlicensed person – whether actions were that of a real estate salesperson – meaning of ‘use the services of’ – where attendance of an unlicensed person at open homes – where interaction between unlicensed person and prospective purchasers Property Agents and Motor Dealers Act 2000 (Qld) ss 10, 93, 128, 160(4), 161, 164, 392, 402, 407, 496, 529, Chapter 12 Part 1, Schedule 2 Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 (Qld) s 7 Property Agents and Motor Dealers Regulation 2001 (Qld) ss 38(1)(a)(ii), 41(2)(b), 41(2)(h), 47(1) Briginshaw v Briginshaw (1938) 60 CLR 336 The Chief Executive, Office of Fair Trading v Filippini, Penny also known as Filippini [2009] QCCTPAMD 35 G v H (1994) 181 CLR 387 Kermani v Westpac Banking Corporation [2012] VSCA 42 Rogers v R (1994) 181 CLR 251 -- 2 of 38 -- 3 The Chief Executive, DTFTWID v Filippini, H.I. t/as Heather Filippini Island Real Estate [2006] QCCTPAMD 41 Queensland College of Teachers v Smith [2015] QCAT 426 APPEARANCES: APPLICANT: Chief Executive, Department of Justice and Attorney-General RESPONDENT: Sarah Louise Penney-Filippini REPRESENTATIVES: APPLICANT: Mr Robert Vize, in-house Counsel RESPONDENT: Mr M Martin QC, instructed by Mills Oakley REASONS FOR DECISION Background [1] These proceedings were commenced by the Chief Executive under the provisions of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) which was in force at all relevant times until 1 December 2014. It is common ground that I must apply the provisions of PAMDA in determining the proceedings. Also relevant is the Property Agents and Motor Dealers Regulation 2001 (the Regulation). [2] Ms Heather Filippini is a former licensed real estate principal and was the proprietor of ‘Heather Filippini Island Realty’. Ms Filippini and the Chief Executive have a shared, lengthy legal history. Ms Filippini’s daughter, Ms Sarah Penney-Filippini, the respondent in these proceedings, has also been involved in other proceedings commenced by the Chief Executive against her and has given evidence in proceedings concerning her mother. The various proceedings are matters of public record. [3] Ms Penney-Filippini holds a real estate principal licence. She was first issued a property agents and motor dealers (real estate) licence from 7 February 2007.1 She took over her mother’s business following a decision of the Commercial and Consumer Tribunal (CCT) to cancel her mother’s licence and disqualify her from holding a licence or registration under PAMDA for a period of four years.2 1 Exhibit 4. 2 The Chief Executive, DTFTWID v Filippini, H.I. t/as Heather Filippini Island Real Estate [2006] QCCTPAMD 41; PAMDA as in force at that time. -- 3 of 38 -- 4 [4] Ms Penney-Filippini, continued to operate the business under the name ‘Heather Filippini Island Realty’ until recently. Ms Penney-Filippini told the Tribunal that she is in the process of removing all references to her mother’s name from the business. In these reasons, I will refer to the business as ‘Island Realty’. [5] On 29 October 2009, the CCT permanently disqualified Ms Filippini from holding a licence under PAMDA.3 That proceeding related to the conduct of both Ms Filippini and Ms Penney-Filippini. Ms Filippini made admissions about acting as a real estate agent, despite her disqualification, including her involvement in particular sales, the negotiation process and her attendance at ‘open house’ days. Ms Penney-Filippini admitted a charge that she carried on business under a licence with someone who is not a suitable person to hold a licence. The CCT found that, overall, the evidence showed a range of matters in which Ms Filippini had maintained a presence and involvement in the conduct of the business.4 The CCT fined and reprimanded Ms Penney-Filippini.5 The Magistrates Court proceedings [6] On 21 November 2013, Ms Filippini was found guilty in the Magistrates Court of pretending to be a real estate salesperson between 6 July 2012 and 14 July 2012 (charge 1) and of pretending to be a real estate salesperson on or about 6 October 2012 (charge 2) in breach of s 161(1) PAMDA.6 The transcript of those proceedings is before me.7 Ms Filippini, Ms Penney-Filippini, Mr John Fitzpatrick, Mrs Christine Fitzpatrick and Mr Geoffrey Price all gave evidence in those proceedings. Mr Price is the Principal Investigations Officer of the Office of Fair Trading’s Gold Coast office and investigated the complaint made about the conduct of Ms Filippini, which led to the Magistrates Court proceedings and these proceedings. [7] The particulars of charge 1, upon which Ms Filippini was ultimately found guilty were that Ms Filippini pretended to be a real estate agent when, on 7 July 2012, she attended an open house at 66 King Charles Avenue8, Sovereign Islands and, while at the open home, engaged Mr and Mrs Fitzpatrick in negotiations over the property including an option to purchase the furniture and the features of the property. Further, that she negotiated aspects of the sale of the property including negotiations on an option for a 90 day contract on the property, subject to the sale of the Fitzpatricks’ property. Further, that on 13 July 2012, Mr and Mrs Fitzpatrick attended the office of Island Realty and entered into negotiations with Ms Filippini over the furniture package for the property culminating in an offer being made to purchase the furniture, which offer was subsequently rejected. Following 3 The Chief Executive, Office of Fair Trading v Filippini, Penny also known as Filippini [2009] QCCTPAMD 35. 4 Ibid at [18]. 5 Ibid at [62]. 6 Exhibit 12; OFT-12. 7 Exhibit 13; OFT-13. 8 This should read Drive rather than Avenue -- 4 of 38 -- 5 further negotiations with Ms Filippini several days later, the offer on the furniture package for the property was accepted by the seller and included in the sale contract as an addendum.9 [8] In relation to charge 2, it was alleged that on or about 6 October 2012, Mr Fitzpatrick was contacted by Ms Filippini and engaged in negotiations with her in regards to a potential buyer for his property at 8 Parklane Terrace, Sovereign Islands. The ultimately unsuccessful negotiations related to an offer to exchange their property for a commercial property at Labrador.10 The Grounds for disciplinary action alleged in the Chief Executive’s application to the Tribunal [9] On 16 October 2014, the Chief Executive applied to the Tribunal under s 497 PAMDA to conduct a proceeding to decide whether grounds exist under s 496 for taking disciplinary action against Ms Penney-Filippini and, if so, for the Tribunal to make one or more orders under s 529 PAMDA. [10] The Chief Executive says the following grounds exist for taking disciplinary action against Ms Penney-Filippini: 1. Ms Penney-Filippini has, as a licensee, contravened PAMDA;11 and 2. Ms Penney-Filippini has, as a licensee, been incompetent or acted in in an unprofessional way.12 [11] The particulars of the grounds are:  Ms Penney-Filippini has employed, as a real estate salesperson a person she knows or ought to have known, does not hold a registration certificate as a real estate salesperson, namely her mother, Ms Filippini (breach of s 164(1) PAMDA) (Particular 1).13  Ms Penney-Filippini has, in relation to her business’ trust account, failed to comply with certain trust account obligations (the trust account matters) (Particulars 2, 3, 4, 5 and 6). [12] I conducted a hearing over four days and heard evidence led by the Chief Executive from Mr Rodgers, Mr Price, Mr Fitzpatrick, Mrs Fitzpatrick and Ms Jacomas. [13] Ms Penney-Filippini, Ms Filippini, Ms Subi Singh, Mr Kyle Miller, Ms Sharon Simpson, Mr Geoff Youngman and Mr Ron Ward also gave evidence. All witnesses had completed statements or affidavits and were cross- examined. In addition to the oral evidence, I have considered the documentary evidence tendered at the hearing.14 9 Exhibit 11; OFT-11. 10 Ibid. 11 PAMDA s 496(1)(b)(i). 12 PAMDA s 496(1)(g)(iii). 13 PAMDA s 164(1). 14 Exhibits 1-49. -- 5 of 38 -- 6 Standard of proof [14] In Briginshaw v Briginshaw, Dixon J said15: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind which is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references. [15] In G v H16 the majority of the High Court stated:17 It has been clear since the decision in Briginshaw v Briginshaw18 that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal” (20). Thus, if there is an issue of “importance and gravity” to use the words of the trial judge, due regard must be had to its important and grave nature. [16] This is a disciplinary proceeding. In this case if the facts as alleged by the Chief Executive are proved and a ground for disciplinary action exists, I will have to determine the appropriate sanction. There are potentially grave consequences for Ms Penney-Filippini in relation to her licence and her ability to continue to conduct her business. I must be reasonably satisfied that the facts have been proved having regard to the issues important and grave nature. Reasonable satisfaction should not be produced by inexacts proofs and indefinite testimony. Particular 1: alleged contravention of s 164(1) PAMDA – the relevant legislative provisions and legal argument [17] The main object of PAMDA was to provide a system for licensing and regulating persons as real estate agents and for registering and regulating 15 (1938) 60 CLR 336 at 362. 16 (1994) 181 CLR 387. 17 (1994) 181 CLR 387 at 399. 18 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 6 of 38 -- 7 persons as registered employees 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.19 In interpreting the relevant provisions of PAMDA I will have regard to the objects of the Act. [18] The Chief Executive alleges that Ms Penney-Filippini has breached s 164(1) PAMDA which provides that a real estate agent must not employ, as a real estate salesperson, a person the agent knows, or ought to know, does not hold a registration certificate as a real estate salesperson. Did Ms Penney-Filippini know Ms Filippini did not hold a registration certificate as a real estate salesperson? [19] It is common ground that at all relevant times, Ms Penney-Filippini knew that Ms Filippini did not hold a registration certificate as a real estate salesperson. Ms Penney-Filippini is familiar with the various decisions made by the CCT, Court of Appeal and the Magistrates Court concerning her mother. I find accordingly. What are the actions of a real estate salesperson? [20] In determining whether Ms Penney-Filippini has employed her mother as a real estate salesperson, I must consider whether the actions of Ms Filippini, were the actions of a real estate salesperson. [21] Section 93(1)(a) PAMDA relevantly provides that a registration certificate authorises the holder of the certificate to perform, if the holder is a real estate salesperson, any activity that may be performed by the real estate agent who employs the holder. A certificate enables the holder to do what an agent can do. [22] Section 128(1) PAMDA sets out what a real estate licence authorises. The licence authorises a real estate agent to perform certain activities, relevantly in this case: (a) To buy, sell, exchange, or let places of residence or land or interests in places of residence or land; (e) To negotiate for the buying, selling, exchanging, or letting of places of residence or land or interests in places of residence or land or businesses or interests in businesses. [23] ‘Sell’ is defined as including ‘agree to sell, advertise or display for sale, attempt to sell, have for sale, negotiate for a sale, and in any way be concerned in selling’.20 [24] Section 160(4) excludes certain activities that an employee may perform from being those of a real estate agent. Section 160(4)(a) relevantly provides that a person does not act as a real estate agent only because the 19 PAMDA s 10(1). 20 PAMDA, Schedule 2. -- 7 of 38 -- 8 person, while performing duties as an employee of a real estate agent at the real estate agent’s registered office or other place of business- (i) Collects, and issues receipts for rents; or (ii) Gives a person a list, prepared by or for the real estate agent, of premises available for rent; or (iii) Does something of an administrative nature in relation to a thing the real estate agent does as a real estate agent. [25] I must determine whether the actions of Ms Filippini based on my findings of fact were activities of a salesperson in line with s 128(1) PAMDA. I accept that doing the things set out in s 160(4) of PAMDA would not constitute the actions of a real estate agent or real estate salesperson. [26] I consider it worthwhile setting out some of the facts that are contentious as between the parties: … 5) At the open home on the 7th July 2012 [at 66 King Charles Avenue, Sovereign Islands],21 Ms Heather Filippini engaged Mr and Mrs Fitzpatrick in negotiations concerning the physical features of the property, including an option to purchase the household furniture and an option for a 90 day contract on the property, subject to the sale of their own property. … 7) At the open home on 8th July 201222 Ms Heather Filippini engaged Ms Jacomas in negotiations concerning the price, water frontage and location of the property. 8) On the 13th July 2012, Mr and Mrs Fitzpatrick attended at the office of Island Realty and submitted an offer and contract on the property at 66 King Charles Ave. Both the respondent and Ms Heather Filippini were present. At that time, Ms Heather Filippini entered into negotiations with Mr and Mrs Fitzpatrick in relation to the furniture package for the property. An initial offer for the furniture was rejected, whereas a subsequent offer was accepted as part of the property contract. … 10) At the open home on 15th July 2012 [at 31 Parklane Terrace, Sovereign Islands],23 Ms Heather Filippini engaged Ms Jacomas in negotiations regarding the property location, pool, boat mooring, colour scheme, price and Ms Jacomas’s budget. … 21 It is not contentious that an open home at 66 King Charles Ave occurred on 7 July 2012 or that Ms Filippini, Ms Penney-Filippini, Mr and Mrs Fitzpatrick were in attendance. 22 It is not contentious that an open home at 66 King Charles Ave occurred on 8 July 2012 and that Ms Jacomas, Ms Filippini and Ms Penney-Filippini were in attendance. 23 It is not contentious that an open home was conducted at 31 Parklane Terrace Sovereign Islands on 15 July 2012 and that Ms Heather Filippini, Ms Penney-Filippini and Ms Jacomas attended the open home on that day. -- 8 of 38 -- 9 12) At the open home [on 15 July 2012 at 18 Queen Guinevere’s Place, Sovereign Islands] Ms Heather Filippini engaged Ms Jacomas in negotiations in respect of the location and age of the property. 13) On or about the 6th October 2012, Mr Fitzpatrick attended the office of Island Realty. At that time, Ms Heather Filippini engaged Mr Fitzpatrick in negotiations over a potential buyer for his property at 8 Parklane Tce, Sovereign Islands. The negotiations related to an offer to exchange his property for a commercial property. The offer was later rejected. … [27] The word ‘negotiations’ appears throughout those alleged facts. While the respondent disputes the evidence on which the facts as drafted are based, the respondent says that even if I were to accept the evidence relied on by the applicant it does not support the conclusion that there has been a breach by Ms Penney-Filippini of s 164 PAMDA. [28] The respondent relies on the Oxford Dictionary definition of ‘negotiate’: ‘try to reach an agreement or compromise by discussion’. The respondent submits that it is nonsensical to talk about negotiations concerning the physical features of a property. Descriptions of physical features of a property is not a negotiation. Nor, it is submitted, is asking a person what they are prepared to spend in acquiring a property. [29] The respondent further submits that even accepting the evidence of Mr and Mrs Fitzpatrick, there was no ‘negotiation’ to purchase household furniture. Rather, information was conveyed that some or all of the furniture in the house might be acquired. There was no ‘negotiation’ regarding a 90 day contract. Rather accepting the evidence of Mr and Mrs Fitzpatrick it was something mentioned by Ms Filippini and nothing more. [30] It is submitted that Ms Filippini could not have engaged Mrs Jacomas in ‘negotiations’ concerning the price, water frontage and location of the property at 66 King Charles Drive because a person cannot negotiate about physical attributes of a property. A restatement of the price of the property is not enough to amount to a negotiation. [31] It is also submitted that the furniture sale was a separate transaction and one that does not require a licence. It is also submitted that informing Mr Fitzpatrick that he could swap his property at 8 Parklane Terrace does not amount to a ‘negotiation’ but is merely conveying information. [32] The applicant submits that the content of the conversations Ms Filippini had with Mrs and/or Mr Fitzpatrick and Ms Jacomas exceeded what was permissible under the legislation. The applicant says Ms Filippini engaged in negotiations with a view to selling the properties. She provided information that would be expected a salesperson would provide to interested persons. Her actions qualify as being ‘concerned in selling’ as per the definition of ‘sell’ in Schedule 2 and her discussions are not covered by the exclusions contained in s 160(4). -- 9 of 38 -- 10 [33] I have considered the decision of this Tribunal in Queensland College of Teachers v Smith.24 In that decision the Tribunal found that it must be satisfied that, the facts as proved in the context of the teacher’s explanation, the College of Teachers had established a particular as drafted which then showed that the teacher had acted contrary to his duties as a teacher. I have decided to follow the reasoning of the Tribunal in that decision. I must consider whether the facts underlying the particular are proven. Then, I must consider whether the facts support a finding that s 164(1) PAMDA has been contravened. [34] In relation to the respondent’s submission that I am limited to considering whether the facts establish a negotiation, in terms of the definition of ‘sell’, I note that the word ‘negotiate’ also appears in s 128(1)(e), ‘to negotiate for the buying, selling, exchanging… of [places of residence]’. Given the word negotiate appears both in s 128(1)(e) and in the definition of ‘sell’ I consider it should be given a broad interpretation. I do not consider that I am limited to considering only the definition of ‘sell’ for the purposes of s 128(1)(a) and s 128(1)(e) can also be considered and I will consider the Oxford dictionary definition of the word ‘negotiate’ in that context. The Magistrates Court proceeding - abuse of process argument [35] In relation to Particular 1, the Chief Executive relies in part on the same facts as alleged in the particulars of the charges heard in the Magistrates Court and upon which Ms Filippini was found guilty. In addition, the Chief Executive says that Ms Filippini engaged Ms Joanna Jacomas in negotiations on 8 July 2012 at 66 King Charles Drive, Sovereign Islands when she attended to inspect the home and again on 15 July 2012 when Ms Jacomas attended open homes at 31 Parklane Terrace, Sovereign Islands and 18 Queen Guinevere’s Place, Sovereign Islands. [36] The Chief Executive submits that it would be an abuse of process if Ms Penney-Filippini were able to re-litigate issues finalised by the Magistrates Court. The Magistrates Court proceedings were proceedings brought by the Chief Executive against Ms Filippini under s 161 PAMDA. Section 161 PAMDA provides that a person must not act as a real estate salesperson unless the person holds a registration certificate (real estate salesperson). Section 161(2) PAMDA provides that a person does not act as a real estate salesperson only because the person, while performing duties as an employee of a real estate agent does certain things. Section 161(2) is in similar terms to s 160(4)(a) PAMDA. [37] The Chief Executive submits that I cannot make findings inconsistent with Ms Filippini’s conviction in the Magistrates Court. Indeed, the Chief Executive goes further and says that I am bound to find that Ms Filippini was acting as a real estate salesperson when she interacted with Mr and Mrs Fitzpatrick in relation to the properties at 66 King Charles Drive and 8 24 [2015] QCAT 426. -- 10 of 38 -- 11 Parklane Terrace. It is submitted that to do otherwise is an abuse of process. [38] To support that submission, the applicant relies on the following passages in the decision of the High Court in Rogers v R:25 Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings in not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.26 Inherent in every court of justice is the power to prevent its procedures being abused.27 Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disprepute.28 [39] Reliance is also placed on the decision of the Supreme Court of Victoria, Court of Appeal in Kermani v Westpac Banking Corporation,29 in particular, the list of the principles relevant to abuse of process set out by Robson AJA.30 It is argued for the applicant the following principles from that list are particularly relevant in these proceedings: (7) These principles apply to civil penalty proceedings: Gill v Walton.31 (10) This prima facie rule applies whether or not the two proceedings are in separate courts or one: Branir Pty Ltd v State.32 (11) The prima facie rule applies where the issues overlap or significantly overlap or there is similarity of subject matters of the proceedings (12) The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle: Moore v Inglis.33 (14) The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to: (a) the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; 25 (1994) 181 CLR 251. 26 Ibid at [6] per Mason CJ. 27 Hunter v Chief Constable of the West Midlands Police (1982) AC 529, 536. 28 Rogers v R (1994) 181 CLR 251 at [16]. 29 [2012] VSCA 42. 30 Ibid at [97]. 31 (1991) 25 NSWLR 190, 206-207 per Kirby P. 32 [2006] NTSC 70. 33 (1976) 9 ALR 509. -- 11 of 38 -- 12 (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding; (f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process: Rippon v Chilcotin Pty Ltd.34 [40] I note that the court in Rogers v R also said:35 …However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud. … [41] I consider that I must accept the fact of Ms Filippini’s convictions. However, considering the principles in Kermani and the reasons relied on from Rogers v R, I have reached the conclusion that I am not bound to make findings of fact consistent with the particulars of the charges and I can determine for myself whether based on those findings of fact Ms Filippini has acted as a real estate salesperson. I have heard evidence from witnesses who did not give evidence in the Magistrates Court. Some of the evidence I have heard, differs from that given before the Magistrate. Ms Penney-Filippini is the respondent here. Ms Filippini is not a party to these proceedings. While Ms Penney-Filippini gave evidence in the Magistrates court proceeding, she was not a party and so it cannot be assumed that she had any control over the conduct of those proceedings. These are disciplinary proceedings where the potential consequences are serious for Ms Penney-Filippini. I consider that the unfairness to Ms Penney-Filippini if I were to simply find that her mother had acted as a salesperson outweighs any matters supportive of an abuse of process. I consider that I must assess the evidence before me, which includes the transcript of evidence before the Magistrate and make my own determination of the facts and reach my own conclusions on the application of the law. I consider that my reasons for reaching that conclusion are not inconsistent with what the court said in Rogers v R as set out above and accord with the principles listed in Kermani. 34 (2001) 53 NSWLR 198 [32]. 35 (1994) 181 CLR 251 at [10]. -- 12 of 38 -- 13 Has Ms Penney-Filippini has employed Ms Filippini as a real estate salesperson - how should the term “employ” be interpreted? [42] I must also determine whether Ms Penney-Filippini employed Ms Filippini as a real estate salesperson. [43] The term ‘employ’ is defined in Schedule 2 PAMDA: Employ includes engage on a contract for services or commission and use the services of, whether or not for reward. [44] Given the definition is inclusive and bearing in mind the main object of PAMDA, I consider that the definition is intended to be interpreted broadly. It is common ground that Ms Filippini did not receive any commission from Island Realty. Both parties say that I must determine whether Ms Penney- Filippini ‘used the services’ of Ms Filippini. [45] It is submitted for the respondent that I must be satisfied that Ms Penney- Filippini did something of a positive nature to use those services. The respondent refers me to the Oxford Dictionary definition of “used”: ‘take, hold or deploy (something) as a means of accomplishing or achieving something’. The respondent says that, at its highest, the evidence shows uninvited interference by Ms Filippini in the real estate business of her daughter which is not enough. Ms Filippini was not there for any formal purpose but involved herself without any invitation from the respondent and as a matter of law that is not sufficient to constitute a breach of s 164(1) PAMDA. [46] It is submitted that Ms Penney-Filippini was not present during the time of the alleged conversations and so she has not ‘used’ the services of her mother with respect to discussions with Mr and Mrs Fitzpatrick on 7 July 2012. [47] The applicant submits that the legislation does not require an element of ‘intent’ or ‘knowingly using the services’. [48] Further, the applicant says that Ms Penney-Filippini was present when her mother was involved in discussions with the Fitzpatricks and Ms Penney- Filippini did not intervene or express her disapproval of Ms Filippini’s behaviour. On the occasions when she was not present, it is unlikely that Ms Filippini would have kept those conversations a secret from her daughter, with whom she resides. Ms Filippini was the previous owner of the business. Ms Filippini’s actions were useful in the sale negotiations with the Fitzpatricks. They were actions within Ms Penney-Filippini’s knowledge and with her approval and therefore Ms Filippini’s services were used by Ms Penney-Filippini. [49] “Use the services of” is not defined. I have considered the ordinary meaning of the words. I consider that the plain wording of the definition supports my view that merely ‘using the services of’ a person is not enough, some form of ‘engagement’ is required as well. Otherwise, it could be argued that a licensee introduced to a buyer by an unlicensed person having had no other -- 13 of 38 -- 14 interaction with that person could be said to have used the person’s services and fall foul of the legislation. I do not consider that could be an intended consequence of the provision. However, given the main object of PAMDA, which includes regulation for the protection of consumers, I do not consider that the form of engagement must be formal. I consider that what might be considered ‘engagement’ depends on the circumstances of the particular case and the term should not be given a restrictive meaning. Findings of fact in relation to the alleged breach of s 164(1) PAMDA [50] Facts numbered 1 to 3 (inclusive) as set out in Annexure B (the particulars) to the applicant’s application to the Tribunal are not contentious. I make the following findings of fact: i) From 28 April 2008, the respondent has carried out the business of Heather Filippini Island Realty (Island Realty) from premises at 46 The Esplanade, Paradise Point, Queensland. Island Realty is a registered business, BN 17228920. ii) The respondent is the holder of Real Estate Principal (REP) licence number 3123476 issued on 7th February 2006. iii) Ms Heather Filippini (the respondent’s mother) is a former licensed REP and proprietor of Island Realty. On 29 October 2009, Ms Heather Filippini, while under a period of licence disqualification, ordered by the Commercial Consumer Tribunal (the CCT) was permanently disqualified by the CCT from holding any licence or registration under PAMDA for breaches of the Act. Fact 4: On the 7th July 2012, the respondent conducted an open home on a property offered for sale at 66 King Charles Ave36, Sovereign Islands. The respondent was accompanied at the open home by Ms Heather Filippini. Mr John and Mrs Christine Fitzpatrick attended the open home on that day. [51] It is agreed that Ms Filippini, Mr and Mrs Fitzpatrick and Ms Penney-Filippini attended the open home on 7 July 2012 at 66 King Charles Drive, Sovereign Islands. It is also accepted by the parties that all of those people were present at the open home for a period of time. I find accordingly. [52] The applicant has stated as part of fact 4 that Ms Penney-Filippini was ‘accompanied at the open home by Ms Heather Filippini’. [53] I am not reasonably satisfied on the evidence before me that Ms Filippini and Ms Penney-Filippini travelled to and arrived at the open home together. Mr Youngman said that he and his wife arrived early for the open house and Ms Filippini was there opening curtains. He said that then Mr Kyle Miller (employee of Island Realty) arrived and then Mr and Mrs Fitzpatrick arrived followed by Ms Penney-Filippini and then some other people who attended the open home and were of Asian appearance. Mr Miller’s evidence was 36 This should read Drive rather than Avenue. -- 14 of 38 -- 15 that he attended the open home to assist Ms Penney-Filippini. He acknowledged that Ms Filippini also attended. During cross-examination, he said he was not sure but did not think that Ms Filippini was present when he arrived. He said he thought that the house had been opened up before Ms Filippini arrived. Ms Singh gave evidence that she also attended the open home and that the house was already opened up when Ms Filippini arrived and that Ms Penney-Filippini and Mr Miller were also present. Both Mr Miller and Ms Singh conceded that they were asked to provide statements in 2016 and as such their memory of the events of the open house may not be as good as it would have been in 2012. Ms Filippini’s evidence was that when she arrived the house was essentially already opened up and Ms Penney- Filippini gave similar evidence. [54] I find that Ms Filippini attended the open home but did not arrive with her daughter who had arrived separately. [55] I consider that the use of the word ‘accompanied’ is suggestive of Ms Filippini’s attendance and presence at the open home being within the knowledge of Ms Penney-Filippini. [56] The evidence of Ms Filippini and Ms Penney-Filippini before the tribunal as to how Ms Filippini came to be present at the open house on 7 July 2012 at 66 King Charles Drive differed somewhat from the evidence given before the Magistrate. Ms Filippini told the tribunal that she was aware that two salespeople would be present at the open house and she essentially just popped in to see if everything was okay and then got caught up talking to neighbours. She indicated that it was a surprise to her daughter when she showed up. However, in the court proceedings, Ms Filippini said: 37 On the day that they did come to the open home, I do remember- I do recall, because we just –they’d just opened the home for inspection and there were a lot of people in the house, and I went there especially. Sarah said, ‘Mum, we’re going to be really busy’, because it was a very large three-level house, and there are double blinds and curtains and it’s a really big house to open. By the time you open all the doors you could spend 15 minutes opening three levels. So I went there purely to open all the blinds and … [57] When that prior evidence was put to Ms Filippini she maintained she had not been asked to attend and said that when she got there everything was done. Later in her evidence before the tribunal, she accepted that she had opened a little door that had not been opened and which she had trouble opening and pulled up one blind. [58] Ms Filippini has given conflicting evidence about whether her potential attendance at the open house was the subject of discussion with her daughter prior to the attendance. Her evidence to the Magistrate that she went there especially as her daughter said they were going to be really busy suggests that there was some discussion about the particular open house and it was not just a spur of the moment decision to pop in. 37 Exhibit 13 Transcript 1-47, lines 19-26. -- 15 of 38 -- 16 [59] It was Ms Penney-Filippini’s evidence that she had not asked her mother to attend the open home. They had not arrived together. Ms Subi Singh and Mr Kyle Miller, real estate salesperson gave evidence that they also attended the open home to assist Ms Penney-Filippini open up the house. Both Ms Singh and Mr Miller gave evidence that while Ms Filippini attended the open home, her attendance was not expected and the home had already been prepared for the open house before she arrived. [60] Ms Penney-Filippini’s evidence to the tribunal was that she did not really know why her mother had called in but that she thought her mother had come to have a look at the house. Her evidence was that her mother would have known she had open homes but not the exact schedule of them. Before the Magistrate, Ms Penney-Filippini was asked why her mother would have been there at an open house to which Ms Penney-Filippini responded: 38 Mum’s only there, I guess from time to time if I’m having a busy day or – or feel that I might need her. Quite often – in particular, on open home day, you might only have a couple of people come through in four or five hours, so quite often, it’s lonely, but it’s a nice time to chat or she brings me lunch; things like that. But certainly no – not all the time. [61] That evidence also suggests that Ms Filippini’s attendance at open homes is not random but occurs because of communications between mother and daughter about the scheduled open homes or at Ms Penney-Filippini’s instigation if she needs her mother for something including company. It also casts some doubt on her evidence that she did not expect her mother to attend. [62] I find that Ms Penney-Filippini was accompanied by Ms Filippini at the open home in that she attended the open home and I find that her attendance at the open home occurred due to discussions with Ms Penney-Filippini about the open home. Fact 5: At the open home on the 7th July 2012, Ms Heather Filippini engaged Mr and Mrs Fitzpatrick in negotiations concerning the physical features of the property, including an option to purchase the household furniture and an option for a 90 day contract on the property, subject to the sale of their own property. [63] Ms Filippini told the tribunal that Mr Geoff and Mrs Joanne Youngman (the then neighbours of Mr and Mrs Fitzpatrick) who were also present at the open home said to her, in reference to the Fitzpatricks, words to the effect of ‘They live next-door to us and are looking for a house with a basement. I think they like this one.’39 Mr Youngman denied having said anything to Ms Filippini about Mr and Mrs Fitzpatrick liking the house. [64] The evidence of Mr and Mrs Fitzpatrick in relation to the conversations they had with Ms Filippini and Ms Penney-Filippini is almost entirely inconsistent with the evidence of Ms Filippini and Ms Penney-Filippini. Ms Filippini says 38 Exhibit 13 Transcript 1-71, lines 42 to 47. 39 Affidavit of Heather Penney 26 June 2015 Exhibit 26, [26]. -- 16 of 38 -- 17 that she remarked to Mrs Fitzpatrick that she was wearing a nice cardigan but otherwise did not engage in conversation with them at the open house on 7 July 2012.40 She conceded she may have said to her daughter ‘have you got the details’ being a reference to the Fitzpatricks’ contact details. [65] In her evidence before the tribunal, Ms Filippini denied referring to the fountain outside the property. However, in her evidence before the Magistrate, she said that she ‘may have said there’s a fountain behind there. I’m just opening the blinds. That’s possibly something I could have said, but I can’t – I could have said something like that to that effect’.41 [66] Before the Magistrate, Ms Filippini gave evidence that the brochure for the property stated clearly that a furniture package was available. In her affidavit,42 Ms Filippini states that her daughter had prepared a brochure for the property and would have given this to the Fitzpatricks when they arrived and she further states that she has since looked at the brochure and it clearly states a furniture package is available and that the owner was offering flexible settlement options. She also states that it was detailed on the sign.43 [67] Mr Fitzpatrick gave evidence that the availability of a furniture package was not stated in the brochure he received at the open house on 7 July 2012. Indeed attached to Mr Fitzpatrick’s statement44 is a copy of the brochure Mr Fitzpatrick says he received at the open house. It does not refer to a furniture package. Ms Filippini’s explanation for her evidence is that there must have been two brochures produced. A second brochure is not in evidence. [68] Ms Penney-Filippini’s evidence to the tribunal regarding the contents of the brochure is also inconsistent with her evidence before the Magistrate. She told the court that the availability of a furniture package was in the brochure but told the tribunal that was not the case and her evidence to the court was wrong because she thought it was mentioned but had not reviewed the brochure. [69] Ms Penney-Filippini’s evidence to the tribunal was that her mother commented on Mrs Fitzpatrick’s cardigan. She said she might not have heard the entirety of the conversation between her mother and Mr and Mrs Fitzpatrick. Before the Magistrate Ms Penney-Filippini said: Mr Rosser: And were you present when any – there was any conversation between the Fitzpatricks and Heather? Ms Penney-Filippini: Yes. Yes. The – the entry to that property is quite large and I remember for most of the open home, mum had been talking to some neighbours. There’s two different groups of neighbours that had come through that day and she’d been chatting to some people. They – they live 40 Ibid, [22] and [23]. 41 Exhibit 13;Transcript court proceeding page 61 line 20. 42 Affidavit of Heather Isobel Penney 26 June 2015 Exhibit 26. 43 Exhibit 26 [24]. 44 Dated 17 July 2015 Exhibit 21. -- 17 of 38 -- 18 overseas and catching up with them. And I – I just remember the – the Fitzpatricks sort of coming through fairly briefly, really. Mr Rosser: Did - do you remember any of the words that your mother used in conversation with them? Ms Penney-Filippini: I do remember that she commented on Mrs Fitzpatrick’s jumper. I remember that. And I know that we didn’t actually know where they – they came from, so she just sort of said friendily, I like your – nice jumper or something like that. But anything – it was just a very casual conversation.45 … Mr Vize: You might recall something about a jumper but the whole time you would have been within earshot of anything your mother would have said to those people? Ms Penney-Filippini: Yes46 [70] Ms Penney-Filippini’s evidence before the Magistrate was that she heard the entire conversation her mother had with Mr and Mrs Fitzpatrick on 7 July 2012 and was in a position to corroborate her mother’s evidence. In my view, the inconsistencies in her evidence impact her credibility. Ms Penney- Filippini’s licence is potentially at stake in these proceedings. I consider that a strong motivation to modify evidence. I consider that it was to her mother’s advantage in the Magistrates Court proceedings to give evidence that she heard the extent of the conversation her mother had with Mr and Mrs Fitzpatrick. In these proceedings and given the respondent’s legal argument regarding how I should interpret the phrase ‘use the services of’, it is to Ms Penney-Filippini’s advantage if I were to accept she did not hear all of the conversation. [71] Mr Fitzpatrick also gave evidence before the tribunal that conflicts with what he told the Magistrate. Mr Fitzpatrick told the Magistrate that he had overheard the respondent speaking with an Asian lady about a furniture package.47 However, before the tribunal Mr Fitzpatrick said he was not sure whether he had overheard the furniture package being discussed. He said he could not say now with any certainty that he had overheard that. He said it might have been his recollection at the time of the Magistrates Court proceeding. Otherwise, he did not resile from his evidence to the court or his statements. [72] The respondent submits that I should have serious concerns about the reliability of Mr Fitzpatrick’s evidence and that he chooses what evidence best suits his purposes. The respondent says that that is not only because of the difference in his evidence about whether he overheard a conversation between Ms Penney-Filippini and the Asian lady but also because he has ‘embraced’ the applicant’s proceedings against the respondent. The respondents says this is clear from Mr Fitzpatrick having prepared numerous statements in response to those relied on by the respondent to the point of conducting his own internet research in an attempt to 45 Exhibit 13: Transcript 1-73, lines 24-36. 46 Exhibit 13: Transcript 1-88, lines 13-14. 47 Exhibit 13: Transcript 1-23, lines 5-10. -- 18 of 38 -- 19 demonstrate that the respondent had caused the original advertising of 66 King Charles Drive to be changed to reflect the respondent’s evidence to the tribunal. [73] In my view, Mr Fitzpatrick’s participation in the proceedings even if he took his own proactive steps to provide information and evidence to the applicant is not a basis to regard Mr Fitzpatrick’s evidence is not truthfully given and unreliable. The respondent does not claim that any of Mr Fitzpatrick’s evidence regarding the internet searches was manufactured to discredit her. Mr Fitzpatrick has cooperated with the applicant’s investigation and been prepared to give evidence. There is no compelling evidence before me that Mr Fitzpatrick has any motive to give untruthful evidence. [74] Further, I do not consider Mr Fitzpatrick’s evidence to the tribunal regarding the conversation the respondent had with the Asian lady on 7 July 2012 to be necessarily inconsistent with his evidence to the court. Mr Fitzpatrick said that he cannot now recall with certainty overhearing the conversation. Given the passage of time since the events in issue, it is unsurprising that a person’s recollection of events might fade with the passage of time. I consider that Fitzpatrick gave his evidence in a frank manner. [75] Mrs Fitzpatrick gave evidence consistent with that of Mr Fitzpatrick in relation to the occasions on which they were both present with Ms Filippini and/or Ms Penney-Filippini. Her credibility is not questioned. In relation to the conversation that occurred at the open home on 7 July 2012 between Ms Filippini and Mr and Mrs Fitzpatrick, the respondent asks that I prefer the evidence of Ms Filippini to that of Mr and Mrs Fitzpatrick. In this case, Ms Filippini’s daughter’s real estate licence is potentially at risk. I consider that Ms Filippini has the greater motivation to give untruthful evidence. I have highlighted some of the differences between Ms Filippini’s evidence to the court and to the tribunal which I consider impacts her credibility including in my consideration of fact 4. [76] Further, there is no supporting evidence for Ms Filippini’s evidence that there must have been two brochures. Ms Penney-Filippini did not say that two brochures were produced. I do not accept that there were two brochures produced. Ms Filippini has given false evidence about having reviewed the brochure and about its contents. To the extent that there is any inconsistency between the evidence of Ms Filippini and Ms Penney-Filippini and that of Mr and Mrs Fitzpatrick in relation to the conversation that occurred at the open house at 66 Kings Charles Drive on 7 July 2012, I prefer the evidence of Mr and Mrs Fitzpatrick. [77] In his first statement,48 Mr Fitzpatrick says that Ms Filippini approached him and Mrs Fitzpatrick, asking what they thought of the house. When they responded that they were interested in it a conversation ensued wherein Ms Filippini indicated that the owner was interested in selling the house along with a furniture package. Further, Mrs Fitzpatrick’s evidence49 consistently 48 Exhibit 7. 49 Exhibit 8. -- 19 of 38 -- 20 with that of Mr Fitzpatrick was that she said words to the effect: ‘We would have to sell our house first’ to which Ms Filippini said words to the effect ‘You could go with a 90 day contract, subject to the sale of your house. We would be happy to do some open homes to try to sell it for you’. Mr Fitzpatrick’s evidence consistently with Mrs Fitzpatrick’s evidence is that Ms Filippini also pointed out various features of the property including the fountain at the side of the property. I have already noted that Ms Filippini told the court she might have mentioned the fountain. [78] Based on the evidence of Mr and Mrs Fitzpatrick, I find that Ms Filippini pointed out features of the property, informed Mr and Mrs Fitzpatrick that there was an option to purchase the household furniture and raised the option for a 90 day contract on the property subject to the sale of their own property. Fact 6: On the 8th July 2012, the respondent conducted an open home on a property offered for sale at 66 King Charles Ave, Sovereign Islands. The respondent was accompanied at the open home by Ms Heather Filippini. Ms Joanna Jacomas attended the open home on that day. [79] While Ms Penney-Filippini was unsure whether an actual open home was listed and conducted on 8 July 2012, she accepts that she attended 66 King Charles Drive, Sovereign Islands with her mother on that date and Ms Jacomas was also present. I consider fact 6 to be uncontentious and find accordingly. Fact 7: At the open home on 8th July 2012, Ms Heather Filippini engaged Ms Jacomas in negotiations concerning the price, water frontage and location of the property. [80] The respondent submits that Mrs Jacomas is a particularly unreliable witness. Ms Jacomas gave evidence that she enjoys attending open homes on Sovereign Islands when she holidays and essentially pretends to be a potential buyer. She said she enjoys the luxury of the homes there. She admitted that she engages real estate agents in conversation about the properties she inspects with no intention of purchasing them. [81] Ms Jacomas also gave evidence that it was common knowledge that there was a mother and daughter who worked on the island. She also said that her female friend who is also a real estate agent told her about the mother and daughter working on the island and that the daughter had a Maserati. The friend also told her that the mother and daughter could have open homes on the island. When her friend was unable to take her to any listings and another agent whom she called could not assist her, she decided to drive to Sovereign Islands. She located the Maserati and spoke to Ms Penney-Filippini about attending open homes. [82] The respondent asserts that Ms Jacomas’ friend was either the source of the complaint to the Chief Executive which prompted the investigation that led to the Magistrates Court proceedings and these proceedings, or Ms Jacomas’s friend was in some way instrumental in the complaint being -- 20 of 38 -- 21 made. It is asserted that Ms Jacomas was the means to obtain evidence against the respondent and she was a willing participant in an effort to assist her friend. [83] Ms Jacomas said she did not make the complaint to the applicant. She provided a statement to the applicant dated 17 July 2012.50 Her evidence was that on 16 July, she told her friend about attending the open homes and that she also told her daughter about the inspections. She agreed it was unlikely that her daughter had communicated with the applicant. [84] During the course of the hearing, I upheld the applicant’s objection to Mr Price giving evidence as to the source of the complaint that led to the investigation. It was Mr Price’s evidence that the source had asked that their identity be kept confidential. Later, the applicant’s representative indicated from the bar table that the source was a male person. [85] I do not know who made the complaint to the applicant. Even if Ms Jacomas sought to engage Ms Filippini in conversation to obtain evidence that could form the basis of a complaint, Ms Jacomas is not responsible for Ms Filippini’s presence at the open home nor must it follow that Ms Jacomas’ evidence is wholly unreliable. [86] Ms Jacomas says that Ms Filippini stated words to the effect that the property ‘…was on the market for $2.3 million and that the vendor was negotiable on price. The property had a wide water frontage with a deep draft that would support a large boat’.51 [87] She states further that Ms Filippini continued to tell her about the characteristics of the property, focussing mainly on the downstairs features as well as the location of the property.52 [88] She states that before leaving, Ms Penney-Filippini pointed out that the property had a solar heated pool and that Ms Filippini made a comment indicating that she wasn’t sure about the pool.53 [89] In her statement, Ms Penney-Filippini does not deny those paragraphs of Ms Jacomas’ statement but rather says the brochure Ms Jacomas was given stated the price was $2.3 million and that ‘a vendor is negotiable on price is hardly illuminating’. Further, she states that the fact that the property had a wide water frontage was detailed on the open home brochure and is obvious from an inspection of the property. Further, she says it is not surprising that the water frontage would support a boat given one was moored in front of the house during the inspection.54 50 Exhibit 10. 51 Exhibit 10, [8]. 52 Exhibit 10, [9]. 53 Exhibit 10, [10]. 54 Exhibit 34, [81]. -- 21 of 38 -- 22 [90] Ms Filippini denies having any conversation with Ms Jacomas other than polite chitchat.55 She denies pointing out the features of the property including the solar heated pool. Ms Penney-Filippini’s oral evidence to the tribunal was essentially consistent with her mother’s but for conceding at one point in her evidence that her mother may have questioned whether the pool was solar heated and there may have been some chatting about the characteristics of the property. Ms Penney-Filippini’s evidence is that her mother only responded to comments made by Ms Jacomas. [91] On balance, I find that on 8 July 2012 at the open home at 66 King Charles Drive, there were discussions between Ms Filippini and Ms Jacomas regarding the price of the property including that the price was negotiable, water frontage and location of the property. I also find that Ms Penney- Filippini was present during those discussions. Fact 8: On the 13th July 2012, Mr and Mrs Fitzpatrick attended at the office of Island Realty and submitted an offer and contract on the property at 66 King Charles Ave. Both the respondent and Ms Heather Filippini were present. At that time, Ms Filippini entered into negotiations with Mr and Mrs Fitzpatrick in relation to the furniture package for the property. An initial offer for the furniture was rejected, whereas a subsequent offer was accepted as part of the property contract. [92] Mr and Mrs Fitzpatrick say that on 13 July 2012 they attended the Island Realty office and submitted an offer on the property at 66 King Charles Drive by signing a contract on the property. They say they also paid a deposit by cheque. They say that they had a brief discussion regarding the furniture package discussed at the first inspection with Ms Filippini. Ms Penney- Filippini said that she would have her mother to discuss this with the owner and get back to them with a list of inclusions. The owner of the property was Mr Raymond Bartlett. Mr Bartlett is deceased. His assistant Ms Simpson gave evidence. [93] Mr and Mrs Fitzpatrick do not say that Ms Filippini was present with Ms Penney-Filippini at the Island Realty office on 13 July 2012.56 From their statements, the discussion around what furnishings might be included in any agreement for sale occurred several days after 13 July 2012.57 [94] Mr and Mrs Fitzpatrick say that several days after 13 July 2012, they attended the offices of Island Realty and discussed with both Ms Filippini and Ms Penney-Filippini an increased offer for the house which they asked to be submitted. They say that Ms Filippini informed them that the furniture only included the actual furniture and did not include any soft furnishings or other decorative items. Discussions about this included Ms Filippini saying that she would call Mr Bartlett, the vendor of the property and see what 55 Exhibit 49, [7]. 56 Exhibit 8, [9] and [10]; Exhibit 7, [11] and [12]. 57 Exhibit 8, [13]; Exhibit 7, [13]. -- 22 of 38 -- 23 could be done regarding the extra items they wanted included in the purchase.58 [95] They say that a few days later again they were advised that their offer to purchase the house had been successful and that Mr Fitzpatrick engaged in further negotiations regarding the furniture signing an additional addendum for $15,000 to secure the extra items they wanted.59 [96] Ms Penney-Filippini agrees that on 13 July 2012, Mr and Mrs Fitzpatrick made an offer to purchase the property. Ms Penney-Filippini denies that she said she would get her mother to discuss the furniture package with the then owner of 66 King Charles Drive. Ms Penney-Filippini’s evidence is that she discussed the purchase of the furniture with Mr and Mrs Fitzpatrick and the negotiations relating to the furniture packages, separate to the house purchase were between Ms Simpson, Mr Bartlett’s assistant, Mr Fitzpatrick and her.60 Ms Simpson’s evidence was that her dealings in respect of the furniture were with Ms Penney-Filippini.61 [97] I find that on 13 July 2012 Mr and Mrs Fitzpatrick attended the offices of Island Realty and submitted an offer and contract on the property at 66 King Charles Drive. [98] There is no dispute that there were ultimately two separate agreements for Mr and Mrs Fitzpatrick to purchase items of furniture from the owner of 66 King Charles Drive, Mr Raymond Bartlett.62 The furniture was not included in the contract of sale of the house.63 I do not find that the offer for the furniture was accepted as part of the property contract. Fact 9: On the 15th July 2012 the respondent conducted an open home on a property offered for sale at 31 Parklane Terrace, Sovereign Island. The respondent was accompanied at the open home by Ms Heather Filippini. Ms Jacomas attended the open home on that day. [99] There is no dispute that an open home was conducted at 31 Parklane Terrace, Sovereign Islands on 15 July 2012 and that Ms Filippini, Ms Penney-Filippini and Ms Jacomas were all in attendance. I find accordingly. Fact 10: At the open home on 15th July 2012, Ms Heather Filippini engaged Ms Jacomas in negotiations regarding the property location, pool, boat mooring colour scheme, price and Ms Jacomas’s budget. [100] Ms Jacomas’ evidence was that following her comment on the view over the pool and across the water, Ms Filippini remarked with words to the effect 58 Exhibit 8, [12]; Exhibit 7, [13]. 59 Exhibit 8, [13]; Exhibit 7, [14] and [15]. 60 Exhibit 34, [61]. 61 Exhibit 45. 62 Exhibit 30, Furniture Purchase Agreement No. 2 dated 20 July 2012; Exhibit 31, Furniture Purchase Agreement dated 18 July 2012. 63 The contract of sale is part of Exhibit 9. -- 23 of 38 -- 24 ‘The water frontage is over 20 metres wide. That’s Stradbroke Island over there, you can moor your boat anywhere there’.64 [101] Ms Filippini admits in her affidavit that she may have made a general comment about Stradbroke Island being in the distance but would not have said that you could moor your boat there because ‘you cannot’.65 Ms Penney-Filippini states that the property does not have a mooring.66 [102] Ms Jacomas’ evidence is that she mentioned that she did not like the colour scheme with a brown bench and timber panelling in the kitchen and Ms Filippini said words to the effect:67 If you don’t like it, the vendor can change the colours and add other features like a mural on the large bare wall. It needs artwork and rugs around the place. There is also the opportunity to use the separate lounge for something else. [103] Ms Filippini’s evidence is that the property had a very expensive kitchen fit- out. She had not spoken to the owners about changing the fit out and therefore would not have said anything to Ms Jacomas.68 [104] Ms Penney-Filippini states that there were exposed brackets on the entry wall awaiting installation of a ‘woven wall’ that was due to be installed the following week. The wall brackets were clearly visible so that it was clear that a piece was due to be installed. The kitchen was a designer marble kitchen with custom grain filled timber cabinetry that is very expensive. An item such as that cannot simply be changed. The colour scheme flowed throughout all cabinetry, bathrooms and walk-in robes at the property.69 [105] Ms Jacomas states that she mentioned the high ceilings and the trouble with changing the lights if they blew, that Ms Penney-Filippini made a remark that they were halogen lights and rarely blew or required changing and that Ms Filippini said, ‘There is a maintenance man who services the island and he can look after things like that. And don’t worry about the colours. The vendor can change the colours’. [106] Ms Filippini says that she recalls making a comment about ‘The Globologist’ who she often used at work and at her own home to assist with light bulbs.70 [107] Ms Penney-Filippini states that she recalls a conversation with Ms Jacomas relating to changing light bulbs. She uses the Globologist. This is the company name that she would have mentioned to Mrs Jacomas and any comments from her mother would have been in general conversation.71 64 Exhibit 10, [15]. 65 Exhibit 27, [13]. 66 Exhibit 34, [86]. 67 Exhibit 10, [16]. 68 Exhibit 27, [13]. 69 Exhibit 34, [87]. 70 Exhibit 49, [13]. 71 Exhibit 34, [88]. -- 24 of 38 -- 25 [108] Ms Jacomas says that she was at the property for about 20 minutes and was about to leave when Ms Filippini asked her what her price range was. She responded that she would be comfortable between $3.3 to $3.5 million and Ms Filippini said words to the effect of ‘If you don’t like this one, we have others we can show you’.72 [109] Ms Filippini says that she would not have asked her questions about her price range. She states that she recalls her daughter had already asked Ms Jacomas the week before. She states that she remembered this because it prompted the earlier discussion about her boyfriend from New Guinea who was buying the house and could spend whatever she liked.73 [110] In her evidence at the hearing, Ms Jacomas agreed that she had told Ms Filippini and Ms Penney-Filippini on 8 July 2012 that she had a husband who was going to buy a house for her and money was not a problem. This gave me some cause to be cautious about accepting Ms Jacomas’ evidence as completely accurate. If money were no object discussions around her price range would not have been necessary. [111] Ms Filippini also states that she did not discuss with Ms Jacomas her requirements or try to match her with any other houses.74 Both Ms Filippini and Ms Penney-Filippini gave evidence that they did not consider Ms Jacomas to be a prospective buyer. [112] It is clear from the evidence that a conversation took place between Ms Filippini and Ms Jacomas in the presence of Ms Penney-Filippini. There is also some agreement that certain characteristics of the property were discussed and there was some discussion about how the lighting in the property might be serviced. [113] I am not reasonably satisfied that the words attributed to Ms Filippini by Ms Jacomas were the words she used. The words that were said by Ms Filippini are important in reaching a conclusion about whether she has performed the activities of a real estate salesperson. Restating information contained in the brochure or features that are obvious to anyone inspecting the property might not be enough. However, pointing out that the separate lounge might be used for something else and asking a person about their price range may be considered words that, coupled with other statements are an attempt to increase a potential buyer’s interest in the property and arguably seek to commence negotiations with that potential buyer. [114] I find that on 8 July 2012, Ms Filippini in the presence of the respondent had a conversation with Ms Jacomas about the property’s location. Fact 11: On the 15th July 2012, the respondent conducted an open home on a property offered for sale at 18 Queen Guinevere’s Place, Sovereign Islands. The 72 Exhibit 10, [16], [17], [18]. 73 Exhibit 49, [14]. 74 Exhibit 49, [15]. -- 25 of 38 -- 26 respondent was accompanied at the open home by Ms Heather Filippini. Ms Jacomas attended the open home on that day. [115] There is no dispute that Ms Filippini and the respondent were present at this open home at 18 Queen Guinevere’s Place, Sovereign Islands on 15 July 2012. There is also no dispute that Ms Jacomas attended that open home. I make findings of fact in terms of fact 11. Fact 12: At the open home, Ms Heather Filippini engaged Ms Jacomas in negotiations in respect of the location and age of the property. [116] Ms Jacomas states that Ms Filippini mentioned that the property had a south west aspect to the water.75 Ms Jacomas states that she looked around the property and mentioned to both Ms Filippini and Ms Penney-Filippini that the property was too old and needed updating to which Ms Filippini said words to the effect that: ‘Yes it is a bit dated’.76 [117] In her oral evidence at the hearing, Ms Filippini denied saying those things and commented that the property was not dated. [118] Ms Penney-Filippini told the tribunal that her mother might have said, ‘Yes it is a bit dated’ and commented that her mother just gave her own opinion. [119] I find that Ms Filippini in the presence of the respondent agreed with Ms Jacomas’ comments that the property was a bit dated. Fact 13: On or about the 6th October 2012, Mr Fitzpatrick attended the office of Island Realty. At that time Ms Heather Filippini engaged Mr Fitzpatrick in negotiations over a potential buyer for his property at 8 Parklane Terrace Sovereign Islands. The negotiations related to an offer to exchange his property for a commercial property. The offer was later rejected. [120] The commercial property in question is a property owned by Mr Ron Ward. In his statement, Mr Ward says that his property was listed for sale in 2012.77 He says that on or about early 2012 one of the agents marketing the property for sale was Mr Alex Farr of Sovereign Realty.78 [121] In his oral evidence, Mr Ward said that he made the decision to sell or trade his commercial property when he looked at the property at 8 Parklane Terrace. Mr Ward explained in his evidence what he understood the word ‘listed’ to mean in the context of his statement. He said that it meant that if you tell a real estate agent you want to sell your property and the agent says they will see what they can do about it then it is ‘listed’ with that agent. He had not signed any paperwork listing the commercial property with Mr Farr for sale, but had told Mr Farr that he could sell it if he could find a buyer. He 75 Exhibit 10, [21]. 76 Exhibit 10, [21]. 77 Exhibit 47, [2]. 78 Exhibit 47, [3]. -- 26 of 38 -- 27 also said in his oral evidence that he did not tell any other agent he wished to sell his property at that time. [122] His statement goes on to state that in about mid 2012 he was introduced to the property at 8 Parklane Terrace by Mr Farr when he held an open home.79 [123] Mr Fitzpatrick and Mrs Fitzpatrick gave evidence that the first open home at 8 Parklane Terrace was in late November 2012 after they returned from overseas in October 2012. Mr Fitzpatrick states that Ms Filippini and Ms Penney-Filippini as well as Mr Farr conducted a small number of appointment only inspections at the end of July and in early August 2012.80 [124] In his oral evidence, Mr Ward conceded he had no idea when in 2012 he looked at 8 Parklane Terrace but maintained it was at an open house. When it was put to him that his statement reflected that his commercial property was on the market in early 2012 and before he attended the open house, Mr Ward reiterated he did not know what date it was but it was when the open house occurred and he only discussed it with Mr Farr and no other agent. [125] Mr Ward’s statement indicates that Mr and Mrs Fitzpatrick were present at 8 Parklane Terrace when a building inspection occurred at the property.81 However, in his oral evidence he conceded that Mr and Mrs Fitzpatrick were not present for the building inspection. He also said that no formal building inspection report was obtained on the property. Rather, he had a friend who is a builder and he asked him to have a look at the property. [126] His statement says that a verbal agreement was made with Mr Fitzpatrick to exchange his commercial property in part satisfaction for the purchase of 8 Parklane Terrace and that a complete contract was prepared.82 In his oral evidence, Mr Ward said that he could not recall signing any contract. [127] Mr Ward’s clarified evidence is consistent with Mr Fitzpatrick’s evidence that there was no signed contract delivered to his lawyers, that he had no knowledge of a formal building inspection, was not present when an inspection took place, and only briefly met Mr Ward when he was leaving the property after an inspection.83 In his statement Mr Fitzpatrick denied every being introduced to Mr Ward but in his oral evidence said that he now understood that the gentleman he had spoken to briefly about motor racing in his driveway upon returning to his property after an inspection was Mr Ward. [128] Mr Fitzpatrick says that on or about 5 or 6 October 2012, he attended the office of Island Realty after receiving a call to do so. He spoke to Ms Filippini 79 Exhibit 47, [5]. 80 Exhibit 32, statement of John Fitzpatrick dated 29 January 2016. 81 Exhibit 47, statement dated 20 January 2016 [11]. 82 Exhibit 47, [7]. 83 Exhibit 32. -- 27 of 38 -- 28 regarding a prospective buyer for 8 Parklane Terrace. He says that Ms Filippini said words to the effect:84 I have a buyer interested in doing a swap for your property. He has a commercial property at 47 Brisbane Rd Labrador. The property is worth $800,000 and it rents out at $65,0000 per year. I said words to the effect: I’m probably not interested in a deal like that but I will inspect the property and get back to you if I am interested. I would need to run the numbers for a transaction like that. [129] Mr Fitzpatrick states that Ms Penney-Filippini was present at the time of the discussion but took no part in the discussion.85 [130] Mr Fitzpatrick’s evidence is that some months later he was contacted by Mr Farr and asked if he would be interested in a trade on his Parklane Terrace property. When the property was described to him, he said that Ms Filippini had already offered him that property as a trade; he had investigated it and had rejected it as not being of appropriate value. Mrs Fitzpatrick was not present at that meeting. Ms Filippini says that Mr Fitzpatrick’s evidence is a complete fabrication. Her evidence is that she had no idea that there had been any interactions between Mr Fitzpatrick and Ms Penney-Filippini about marketing Mr Fitzpatrick’s property. [131] In relation to her knowledge of Mr Ward’s commercial property, Ms Filippini’s evidence before the Magistrates court was: 86 Mr Rosser: Now what about this swap property? The one in Labrador? Do you know anything about that? Ms Filippini: I do know --- Mr Rosser: Are you familiar with it? Ms Filippini: I do know of the property that they’ve been discussing there. I know of the property. I don’t – I actually haven’t seen it, so I can’t – I can’t comment, but Sarah may have mentioned it to – I may have mentioned it to Sarah that there was a person looking for a trade. A man had mentioned he was looking for a trade, but I have heard that the trade was actually made with Alex Far and Mr Fitzpatrick in actual fact has signed a contract. [132] Ms Penney-Filippini’s evidence to the tribunal is that she first became aware that Mr Ron Ward was interested in trading his commercial property for a property at Sovereign Island and, in particular, 8 Parklane Terrace when she spoke to Mr Ron Ward and his wife, Mrs Carmel Ward after receiving Mr Fitzpatrick’s first statement dated 22 October 2013. Her evidence regarding a contract between Mr Fitzpatrick and Mr Ward for the sale of 8 Parklane Terrace was based she said on what Mr Ward told her. [133] Mr Ward’s oral evidence contradicted his written statement in many respects. I found his evidence confusing and lacking specificity in relation to the chronology of events. While he sought to clarify his evidence 84 Exhibit 7, [19]. 85 Exhibit 7, [20]. 86 Exhibit 13, 1-50 line 20-30 (Mr Rosser was Ms Filippini’s counsel). -- 28 of 38 -- 29 regarding specific dates, I was still left in doubt about his evidence. He said he only ‘listed’ his property with Mr Farr and that he did so only around the time of the open house at 8 Parklane Terrace. His signed statement says that in 2012 ‘one of the agents marketing the property for sale was Alex Farr’. This suggests that a number of agents were marketing the property. It also suggests this was happening before he attended the open home. He admitted to having previously met Ms Penney-Filippini at open homes during the 10 years he had spent looking for a property on Sovereign Islands before purchasing. He said he had owned the commercial property for about six years. He also acknowledged that he had seen Ms Filippini at open homes over the years. [134] For the reasons previously given, I consider that Mr Fitzpatrick’s evidence is to be preferred over Ms Filippini’s evidence. I also consider that Mr Ward’s recollection of events is equivocal and is unreliable. I am reasonably satisfied that Ms Filippini became aware that Mr Ward was open to a trade of his commercial property to secure a property on Sovereign Islands and she canvassed this with Mr Fitzpatrick as an option for selling 8 Parklane Terrace. I also find that Ms Penney-Filippini was present in the office on this occasion. [135] The facts numbered 14, 15, 16 and 17 are not in dispute and there is documentary evidence in support of them. I find consistently with fact 14 that on 21 November 2013, Ms Filippini appeared in the Southport Magistrates Court before Magistrate Hogan in relation to two charges under s 161(1) PAMDA. Those charges relied on the particulars identified in Particulars 1.3, 1.4, 1.5, 1.8 and 1.13.87 [136] I find consistently with fact 15 that Ms Filippini was found guilty on both charges and was convicted and fined $9,000.88 [137] I find consistently with fact 16 that on 29 October 2009, the CCT Member J Thomas AM QC ordered that the respondent be reprimanded and pay a fine of $6,000 for carrying on business under a licence with someone who is not a suitable person to hold a licence, namely Ms Filippini.89 [138] I find consistently with fact 17 that the respondent did not take up the opportunity to participate in a record of interview in relation to the alleged breach. In a written response dated 14 May 2014, the respondent stated that ‘she does not and never has employed Heather Filippini’.90 [139] Fact 18 requires a determination involving an application of the law. 87 Exhibit 11. 88 Exhibit 12 and 13. 89 Exhibit 6. 90 Exhibit 18. -- 29 of 38 -- 30 Application of the law: Were Ms Filippini’s action those of a real estate salesperson? [140] Earlier in these reasons I have considered and formed views about the legal arguments mounted by the parties in relation to the interpretation of the relevant legislative provisions. I will not restate those views here. I have applied that reasoning to the facts I have found. [141] I do not consider that there is a need for a real estate licence under PAMDA to negotiate a sale of furniture. Such agreements are not contemplated by s 128 PAMDA. I found in relation to fact 8 that the agreements for the sale of the furniture were not part of the property contract. Whether or not Ms Filippini was involved in any negotiations regarding the sale of the furniture, I am not satisfied that doing so in this context would be an activity of a real estate salesperson. [142] In relation to my findings in relation to fact 7, I do not consider that simply pointing out the features or characteristics of a home that are obvious to a potential buyer would alone establish that Ms Filippini has acted as a real estate salesperson. However, I consider that informing a prospective buyer that the vendor is negotiable on price coupled with the statements about the features of the property brought the discussion within the definition of negotiation, an attempt to compromise by discussion. In my view and person who attends an open home is a prospective purchaser. [143] I find that facts 5 and 13 as found support the conclusion that Ms Filippini has performed the activities of a real estate salesperson. Her discussion with Mr and Mrs Fitzpatrick about a 90 day contract, raising the furniture package in that context and pointing out features of the home were efforts by Ms Filippini to engage and induce Mr and Mrs Fitzpatrick in negotiating for the purchase of 66 King Charles Drive. I find similarly in relation to Ms Filippini raising with Mr Fitzpatrick the potential for trading a commercial property for his property at 8 Parklane Terrace. It too was an effort to engage Mr and Mrs Fitzpatrick in negotiating a sale. All of those actions are not actions of an administrative nature. Whether or not a contract was signed and/or completed on those terms is not relevant. Not all negotiations are successful. However, those facts as found were an attempt to reach an agreement or compromise by discussion. Application of the law: Has Ms Penney-Filippini employed Ms Filippini as a real estate salesperson? [144] I have previously set out my views in relation to the interpretation of the definition of ‘employ’. I will not restate that reasoning here. I have found in terms of facts 4, 5, 6, 7, 9, 10, 11, 12 and 13 that Ms Penney-Filippini was present when her mother interacted with Mrs and/or Mr Fitzpatrick and Ms Jacomas. [145] I have found that Ms Filippini’s presence at the open home on 7 July 2012 at 66 King Charles Drive occurred due to discussions about the open home between mother and daughter. It is argued for the respondent that Ms -- 30 of 38 -- 31 Filippini’s presence at open homes and at the offices of Island Realty was effectively unnecessary interference in the respondent’s business. [146] Ms Penney-Filippini’s evidence is that her mother attended open homes and the offices of Island Realty from time to time. Mr Miller’s evidence was that it is his belief that Ms Filippini attends the office as a ‘motherly-figure to Sarah’, makes lunch for herself and her daughter and runs clothing to their tailor and that she has no involvement during mid-month and end of month concerns regarding the office trust account or approach clients who enter the office. Nor has he seen Ms Filippini list or sell a property or speak with buyers or sellers in relation to sale negotiations.91 Similarly, Ms Singh said that when she worked at Island Realty it was clear that Ms Penney-Filippini was managing the office and handling her own listings and sales and that Ms Filippini was not involved in the business on a daily basis and was not involved in the listing and sales processes. She further stated that both Ms Filippini and Ms Penney-Filippini were very clear that Ms Filippini was not licensed and not actively working with the business.92 [147] While I have considered that evidence regarding Ms Filippini’s attendance at the offices of Island Realty, I am concerned only with the conduct which occurred on specific dates in respect of which I have made findings of fact. Ms Penney-Filippini was aware of her mother’s presence on those occasions. I do not consider that Ms Filippini attended open homes or at the offices of Island Realty on very isolated occasions given the frequency of her attendance in the factual matters before me. [148] It may be that Ms Filippini has, at times, attended or involved herself in her daughter’s business without specific invitation. However, Ms Penney- Filippini is the licensee and as such has statutory obligations with which she must comply in operating that business. She was required to have knowledge of PAMDA and the Code of Conduct and comply with the obligations contained therein.93 When Ms Filippini performed the activities of a real estate salesperson, Ms Penney-Filippini was well aware of the history of proceedings before tribunals and courts involving her mother. [149] It is against that background and in that context and also taking into account the object of PAMDA to protect consumers against particular undesirable practices that I have considered whether Ms Penney-Filippini employed her mother as a real estate salesperson. [150] In the circumstances of this case, I do not consider that it is necessary for there to be evidence of some formal engagement by Ms Penney-Filippini of her mother. Although I have found that Ms Filippini’s presence at the open home on 7 July 2012 was due to discussions Ms Penney-Filippini had with her mother, in the circumstances of this case, I do not consider it necessary that there be evidence that Ms Penney-Filippini invited her mother to attend 91 Exhibit 43, [24] – [28]. 92 Exhibit 42, [15] – [17]. 93 PAMDA, s 154 and Property Agents and Motor Dealer’s (Real Estate Agency Practice Code of Conduct) Regulation 2001. -- 31 of 38 -- 32 the open homes. I do not consider that there need be evidence that Ms Penney-Filippini specifically gave her mother permission to interact with potential buyers either at the open homes or in other settings. There is no evidence that Ms Penney-Filippini took steps to actively discourage her mother’s attendance at open homes or her engagement with potential buyers in particular Mr and Mrs Fitzpatrick and Ms Jacomas. Her acquiescence or tacit acceptance of her mother’s involvement in her business shown by her presence when her mother engaged with the Fitzpatricks and Ms Jacomas is sufficient in the circumstances of this case for me to find that Ms Penney-Filippini has engaged Ms Filippini as a real estate salesperson and also that she used Ms Filippini’s services. Mr and Mrs Fitzpatrick ultimately purchased 66 King Charles Drive. Ms Filippini attempted by her interaction with Mr Fitzpatrick in October 2012 to negotiate a sale of his property at 8 Parklane Terrace. Such actions had the potential to advantage Ms Penney-Filippini as the licence holder. [151] While there is clear evidence now that Ms Jacomas had no intention of purchasing any property, she did not disclose that to Ms Penney-Filippini and Ms Filippini at that time. In my view any person who attends at an open home is a prospective purchaser. In respect the facts I have found in relation to Ms Filippini’s interactions with Mr and Mrs Fitzpatrick and Ms Jacomas, I consider that Ms Penney-Filippini has used her services. Applying the definition of ‘use’ referred to me by the respondent, I consider that Ms Penney-Filippini has ‘taken’ her mother’s interaction with potential buyers as a means of accomplishing or achieving something. Whether or not that something has actually been achieved, is not, in my view, required for the services to be used. [152] I conclude that Ms Penney–Filippini has breached s 164(1) PAMDA. Particular 1 is established. Particulars 2-6: The trust account matters [153] A principal licensee had particular obligations relating to the opening of trust accounts and payments made to and from the trust accounts and other obligations.94 A principal licensee must appoint an auditor to audit their trust account.95 The legislative provisions relating to the audit of trust accounts were contained in part 2, division 3 PAMDA. The trust accounts of licensees must be subject to an audit. The Regulation is also relevant. Part 7 of the Regulation contains the provisions relating to accounts, funds and record keeping. [154] An auditor has certain functions and the auditor’s report must include certain things, relevantly here: a statement about whether, each trust account has been satisfactorily kept under this Act;96 for each month during the audit period each trust account cash book was reconciled with the bank balance 94 PAMDA Chapter 12 Part 1. 95 PAMDA s 392. 96 PAMDA s 407(2)(f). -- 32 of 38 -- 33 and trust ledger;97 the serial numbers of the trust receipts used during the audit period and the unused trust receipts produced to the auditor;98 and a statement about anything else about the trust account the auditor considers should be reported to the chief executive.99 [155] It is not in dispute that at all relevant times, Mr Kevin Rodgers of RWG Accountants was the appointed auditor. Mr Rodgers gave evidence that he reviews the audits conducted by someone else. He could not say whether the anomalies had been brought to Ms Penney-Filippini at the time. He conceded that there was not much time between the two audits. [156] Certain essential facts are not in dispute, are supported by documentary evidence and are common to each of particulars 2 to 6 (inclusive). Accordingly I find as follows:  From 28 April 2008, Ms Penney-Filippini has carried on the business of Island Realty from premises at 46 The Esplanade Paradise Point, Queensland. Island Realty is a registered business.  Ms Penney-Filippini is the holder of a Real Estate Principal Licence issued on 7 February 2006.  Ms Penney-Filippini operates a trust account in the name Sarah Louise Penney-Filippini ATF Sovereign Realty Trust trading as Island Realty (‘the trust account’). The trust account was opened and recorded with the Office of Fair Trading under the provisions of s 375 and 377 PAMDA.  On 13 January 2014, Mr Kevin Rodgers of RWG Accountants and Advisors completed an audit on the trust account for the period 1 November 2011 to 21 October 2012 (the 2011/2012 audit)  On 21 February 2014, Mr Kevin Rodgers of RWG Accountants and Advisors completed an audit on the trust account for the period 1 November 2012 to 21 October 2013 (the 2012/2013 audit)  Ms Penney-Filippini did not take up the opportunity to participate in a record of interview in relation to the alleged breaches. She provided a written response dated 14 May 2014.  In relation to particulars 3 to 6 (inclusive) Ms Penney-Filippini’s written response was that she ‘had addressed each of the regulatory breaches identified in her audits and was of the understanding that they had therefore been rectified.’100 97 PAMDA s 407(2)(k). 98 PAMDA s 407(2)(l). 99 PAMDA s 407(2)(p). 100 Refer to Exhibits 3, 4, 14, 15, 16, 17 and 18. -- 33 of 38 -- 34 Particular 2 – time for audit [157] In compliance with s 402(2) PAMDA, Ms Penney-Filippini was required, by 28 February 2013, to have the trust accounts for the period 1 November 2011 to 21 October 2012 audited by her auditor and filed with the Chief Executive, the auditor’s signed original audit. It is also common ground that the audit report was not completed until 13 January 2014 and the Chief Executive did not receive the auditor’s report until 30 January 2014. I find accordingly. [158] While s 402(3) allows the Chief Executive to extend the time in s 402(2) if an auditor or licensee applies in writing for the extension, it is common ground that no such application was made by either Ms Penney-Filippini or the auditor. I find that no such application was made. I find that Ms Penney- Filippini has contravened s 402(2) PAMDA. [159] In a written response dated 14 May 2014 the respondent stated that her audit was late ‘due to difficulty in obtaining a new auditor’. [160] Ms Penny-Filippini’s evidence to the tribunal was that she is not always present when the auditor visits. She says that, in or about July 2013, she became aware that the 2011/2012 audit report had not been lodged. That prompted an email exchange between her and RWG accountants. Her evidence is that while continuing to communicate with RWG, she was taking steps to locate an alternate auditor who could complete the audit report before RWG or to complete her future audit reports.101 [161] Ms Penney-Filippini’s affidavit sets out her attempts to engage another auditor between 23 July 2013 and 10 December 2013 when she says RWG made an appointment for their audit visit in January 2014.102 She says that during this time, RWG confirmed that they would be completing her audit report. [162] Mr Rodgers gave evidence that an audit would not have been conducted until Ms Penney-Filippini paid the auditor’s fees. He understood that there had been an assertion by Ms Penney-Filippini that she had been overcharged fees in general. He was aware of the deadline for the audit report and knew that Ms Penney-Filippini would be in breach of the deadline. He was unable to recall the email exchanges between his firm and Ms Penney-Filippini. [163] It is unclear to me why Ms Penney-Filippini only became aware in July 2013 that the 2011/2012 audit had not been completed. Her only explanation appears to be that she says it is for the auditor to complete the report and that she is not always present when the auditor visits. The obligation in s 402 is on the licensee to have the trust accounts audited by the licensee’s auditor and to file the original report with the Chief Executive. It is required to be done by the same time each year. Ms Penney-Filippini’s explanation 101 Exhibit 34, affidavit of Sarah Louise Penney-Filippini at [103], [104], [110], [111]. 102 Exhibit 34, [115] to [128] inclusive. -- 34 of 38 -- 35 for the late lodgement of the audit report is unsatisfactory. The licensee should be aware of the due date for the audit report and be proactive in ensuring that the appointed auditor will complete and file the audit report by the due date. [164] I accept that she made efforts to have the audit report completed by another auditor. I also accept that Ms Penney-Filippini has engaged a new auditor. Particular 3 – books, account and records to be kept by principal licensee [165] I have already made findings of fact consistent with facts numbered 26, 27, 28 and 29 in relation to Particular 3. Regulation 38(1)(a)(ii) provides that a principal licensee must keep consecutively numbered trust account receipt forms in duplicate. [166] It is common ground that for the 2011/2012 audit, two receipts were missing at the date of the auditor’s inspection. I find accordingly.103 [167] I have already made a finding in relation to her written response to the Office of Fair Trading regarding the regulatory breaches. Ms Penney-Filippini gave evidence to the tribunal that the missing receipts were subsequently located by her and filed correctly. Mr Rodgers was unaware of this. [168] I find that the two trust account receipts were incorrectly filed at the time of the auditor’s inspection. I find that subsequently they were located and correctly filed. Particular 4 – trust account receipt forms [169] I have already made findings of fact in similar terms to facts 33, 34, 35 and 36 and 37 under particular 4. [170] Regulation 41(2)(b) provides that a completed trust account receipt form must contain the date the receipt was completed. [171] It is common ground that in respect of both the 2011/2012 audit and the 2012/2013 audit, the year was missing from the date on a large number of receipts. [172] I have already made a finding about her written response to the Office of Fair Trading regarding the regulatory breaches. [173] Ms Penney-Filippini’s evidence to the tribunal is that on a limited number of occasions because of a printing error the last number of the year in the date is deleted from the printed duplicate receipts. She says she has received technical support to ensure that this will not happen again. She says this was beyond her control. [174] Mr Rodgers accepted that the reason the year was cut off was due to a formatting issue with the software. Based on the evidence of Ms Penney- 103 Fact 30. -- 35 of 38 -- 36 Filippini and that of Mr Rodgers, I accept that the correct year of the date did not appear on the printed trust account receipts due to an issue with the template margins. [175] It is unclear to me why this problem was not picked up at the time of printing the receipts or why Ms Penney-Filippini was not aware of the problem if she had been using the same software for many years. It occurred on quite a number of printed trust account receipts. Regulation 41(2)(b) had not been complied with for the receipts identified in the audits. Particular 5 – trust account receipt forms [176] I have already made findings of fact in terms of facts numbered 41, 42, 43, 44 and 45. Regulation 41(2)(h) provides that a completed trust account receipt forms must contain the signature of the person who completed the receipt. [177] I have already made a finding about Ms Penney-Filippini’s written response to the Office of Fair Trading following the audits. [178] It is common ground that in respect of the 2011/2012 audit, four duplicate trust account receipts were not signed. It is also accepted by Ms Penney- Filippini that the 2012/2013 audit identified three duplicate trust account receipts that were not signed in terms of facts numbered 46 and 47 in relation to particular 5. I find accordingly. [179] In her statement Ms Penney-Filippini says that the duplicate trust account receipts are signed and that the original receipts have been signed at all times. I find Ms Penney-Filippini failed to ensure that the trust account receipts contained the signature of the person who completed the receipt at the time of the audits. Regulation 41(2)(h) was not complied with. Ms Penney-Filippini has not explained why the duplicate trust account receipts were not signed at that time. Particular 6 - reconciliation [180] I have already made findings consistent with facts 50, 51, 52, 53 and 56 listed in relation to particular 6. Regulation 47(1) provides that a principal licensee must, within five business days after the end of each month: (a) Reconcile the trust account cash book balance at the end of the month with the trust account ledger balances that show each trust account creditor’s name and the amount held on behalf of the creditor; and (b) Reconcile the financial institution’s statement balance for the principal licensee’s trust account at the end of the month with the trust account cash book balance at the end of the month. [181] It is common ground that the 2012/2013 audit identified that the end of month reconciliations for the period January 2013 to September 2013 did not balance. -- 36 of 38 -- 37 [182] But for the months of June 2013 and August 2013 the trust account reconciliations was out by 10 or 11 cents. The audit report dated 21 February 2014 states that the June and August 2013 trust account reconciliations were out due to a combination of cheques deposited on that day, and differences between using internet banking statements on the reconciliation day and actual bank statements after the fact and that both were rectified in the following months. [183] In his evidence before the tribunal, Mr Rodgers accepted that the reconciliation was out by 10 or 11 cents but said that it was still worth making it right. [184] Ms Penney-Filippini’s evidence to the tribunal was that RWG was unable to assist in identifying why the bank balance was 10 cents over. Ms Penney- Filippini says that one particular tenant paid a difference of 10 cents in their rent on a number of occasions and it had been thought that this was creating the 10 cents difference. She said that her new auditors detected that a manually prepared cheque had been written for 10 cents less than the computer record and a correction has now been made. She says that as all disbursements to owners are now electronic this manual error will not occur again.104 [185] I find that the reconciliations throughout the relevant period were out by 10 or 11 cents in contravention of Regulation 47(1). Ms Penney-Filippini is responsible for ensuring that her trust account cash book is reconciled. Conclusion [186] Ms Penney-Filippini has breached s 164(1) PAMDA. Ms Penney-Filippini has breached PAMDA and the relevant Regulation in relation to the trust account matters. She has contravened the Act which is a ground for starting a disciplinary proceeding under s 496(1)(b)(i). [187] It is also claimed by the Chief Executive that by her actions in breach of s 164(1) PAMDA and in relation to the trust account matters, Ms Penney- Filippini has, in carrying on a business or performing an activity, been negligent or acted in an unprofessional way. That is a ground for starting a disciplinary action pursuant to s 496(1)(g)(iii). [188] The term ‘unprofessional conduct’ is not defined in PAMDA. I have considered the following Oxford English Dictionary definition of ‘unprofessional’ : (1) Below, contrary to, or failing to meet the standards expected in a particular profession; esp improper or inappropriate in a professional context. 104 Exhibit 34, [172] to [178] inclusive. -- 37 of 38 -- 38 [189] Ms Penney-Filippini was required to comply with the Code of Conduct.105The Code provided that a real estate agent must act professionally.106 [190] I consider that by breaching the provisions of PAMDA and the relevant Regulation, Ms Penney-Filippini’s actions have fallen short of the standard expected of a licensee. I am satisfied that the contraventions of the legislative provisions ( particulars 1 to 6) support a finding that Ms Penney- Filippini has acted in an unprofessional way so that a ground for starting disciplinary action is established under s 496(1)(g)(iii) PAMDA. [191] The Chief Executive has applied to the tribunal under s 497 PAMDA. I find that grounds exist for taking disciplinary action against Ms Penney-Filippini. Pursuant to s 529 PAMDA the tribunal may make one or more of the orders listed in s 529 against a person to whom the tribunal finds grounds exist to take disciplinary action. As PAMDA is no longer in force, the parties may address me on whether any of the provisions of the Property Occupations Act 2014 (Qld) should be considered. [192] I make the following directions: 1. The Chief Executive,Department of Justice and Attorney-General must file in the Tribunal two (2) copies and give to Sarah Louise Penney-Filippini one (1) copy of any written submission the Chief Executive wishes to make in relation to the orders the tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00 pm on 3 August 2016. 2. Sarah Louise Penney-Filippini must file in the Tribunal two (2) copies and give to the Chief Executive, Department of Justice and Attorney-General one (1) copy of any written submission she wishes to make in relation to the orders the tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00pm on 31 August 2016. 3. The proceeding is listed for a half-day oral hearing on a date to be advised for the tribunal to consider the orders it may make pursuant to s 529 PAMDA or any other relevant legislation. 105 Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001. 106 Ibid at s 7. -- 38 of 38 --