Chief Executive, Department of Justice and Attorney General v Pease [2016] QCAT 178

CITATION: Chief Executive, Department of Justice and Attorney General v Pease [2016] QCAT 178 PARTIES: Chief Executive, Department of Justice and Attorney General (Applicant) V Georgia Cinamon Pease (Respondent) APPLICATION NUMBER: OCR162-15 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 4 March 2016 DELIVERED AT: Brisbane ORDERS MADE: [1] Grounds exist for taking disciplinary action against Georgia Cinamon Pease because:- (a) as a registered employee in performing an activity of a licensee, she acted in an unprofessional way; and (b) amounts were paid from the Claim Fund because of her acts and omissions. [2] Georgia Cinamon Pease is reprimanded and ordered to pay compensation of $8,100 to the Chief Executive, Department of Justice and Attorney General in monthly instalments of $150 starting within 28 days of the date of this decision and thereafter by the last day of each month. [4] If any instalment after the first instalment is not paid on time then Georgia Cinamon Pease shall be disqualified from holding a licence or registration -- 1 of 4 -- 2 certificate under the Property Occupations Act 2014 (Qld) for a period of 2 years from the date of the failure to pay on time. [5] The instalments are to be paid to an account details of which have been provided. CATCHWORDS: Real estate salesperson – registered employee – disciplinary proceedings - acting in an unprofessional way – causing a loss to the fund Property Agents and Motor Dealers Act 2000 (Qld) ss 496, 529 Property Occupations Act 2014 (Qld) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION The application [1] This is an application by the Chief Executive, Department of Justice & Attorney General (‘the Chief Executive’) for the Tribunal to decide whether grounds exist for taking disciplinary action against Georgia Cinamon Pease and if so, for the imposition of an appropriate penalty. [2] Ms Pease was employed by Martinger Pty Ltd which traded as Beachside Realty, operating in Southport and subsequently in Broadbeach. [3] One of Ms Pease’s roles in that employment was to accept bond money from tenants and to deal with it properly. It is alleged that on ten occasions when the bond money was paid in cash she failed in that respect, in that the money was not properly receipted, nor paid into the trust account, nor remitted to the Residential Tenancies Authority (‘RTA’). [4] Ms Pease held a real estate salesperson registration certificate issued by the Chief Executive and therefore was a “registered employee” under the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’). Under that Act, disciplinary proceedings can be brought against such employees.1 The disciplinary grounds 1 Although PAMDA was repealed as from 1 December 2014, it continues to govern disciplinary proceedings arising from events prior to the repeal: Property Occupations Act 2014 (Qld) ss 258(1)-(2). -- 2 of 4 -- 3 [5] The disciplinary grounds fall into two categories, although both of them arise from the same facts as set out below under “the relevant facts”. [6] Firstly, the Chief Executive contends that Ms Pease as a registered employee “has in performing an activity of a licensee acted in an unprofessional way”. This can be a ground for starting disciplinary proceedings under s 496(1)(h)(ii) PAMDA. Here, the reference to the licensee for whom Ms Pease was performing an activity is a reference to her employer Martinger Pty Ltd and also to its Director, Shayne Eric Martens. They were both holders of a property agents and motor dealers (real estate) licence. [7] Secondly, the Chief Executive contends that the claim fund has paid the ten bond holders whose bonds were not paid into the trust account and remitted to the RTA compensation for loss of their bond. This can be a separate ground for starting disciplinary proceedings under s 496(1)(d) PAMDA. It applies when “an amount has been paid from the fund because the registered employee did, or omitted to do, something that gave rise to a claim against the fund”. The relevant facts [8] There is an agreed statement of facts which has been submitted to the Tribunal. [9] Ms Pease was responsible for dealing with bond monies that she received from tenants. They had to be paid into the trust account, properly receipted so that the tenant could see that the bond had been paid into the trust account, and then remitted to the RTA. In order to do this, Ms Pease had limited electronic access to that account. She was not a signatory to it. [10] On ten occasions between 4 July 2010 and 29 May 2011, Ms Pease failed to pay into the trust account, formally receipt, or remit to the RTA, the bonds paid in respect of ten tenancies. On each occasion the tenants had paid cash for their bonds. [11] Instead, Ms Pease gave the tenants non-trust account receipts and kept a copy of these on the tenants’ file together with a bond lodgement form. There is no suggestion that the cash was retained by Ms Pease or that she benefited in any way from what happened. Also no rent went missing at the same time. [12] The total amount involved was $16,000. Each of the tenants made claims against the fund and these were paid. [13] In interviews Ms Pease admitted that she did not remit the bond money concerned to the RTA. However, she has submitted that this was not her responsibility. [14] It has been accepted on behalf of Ms Pease that the grounds for taking disciplinary action as set out above are proved. -- 3 of 4 -- 4 Conclusion on the disciplinary ground [15] In the light of the agreed facts, I find that Ms Pease did in the way set out above, as a registered employee in performing an activity of a licensee, act in an unprofessional way. Further, I find that amounts were paid from the fund because of Ms Pease’s acts and omissions set out above. Penalty [16] The orders which can be made are set out in s 529 PAMDA. [17] A draft order providing for a penalty has been signed on behalf of the Chief Executive and also signed by Ms Pease. The draft order proposes a reprimand and a financial penalty. I have to be satisfied that this is the appropriate penalty. [18] In suggesting a reprimand and a financial penalty, rather than a period of disqualification, the Chief Executive points out various mitigating factors. Ms Pease did not cause the matter to proceed to a full Tribunal hearing, she assisted in the interviews, and she did not herself benefit from what happened. It is also said that the actions of Ms Pease’s manager go a long way to explain what happened. [19] I have also seen a statement from Ms Pease in which she expressed remorse. [20] In my view, the penalty which is proposed by the parties is both justified as an appropriate penalty for Ms Pease and also sufficient from the perspective of the Chief Executive, bearing in mind that the primary purpose of disciplinary sanction is protective rather than penal. [21] The parties have agreed that if the instalments for the financial penalty are not paid on time then Ms Pease should be disqualified from holding a licence or registration certificate under the Property Occupations Act 2014 (Qld) for a period of two years from the date the instalment is not paid. I agree that this is appropriate in this case. It is permitted by s 529(1)(g) PAMDA. -- 4 of 4 --