Chief Executive, Department of Justice and Attorney-General v Filippini [2015] QCAT 336

CITATION: Chief Executive, Department of Justice and Attorney-General v Filippini [2015] QCAT 336 PARTIES: Chief Executive, Department of Justice and Attorney-General (Applicant) v Sarah Louise Filippini (Respondent) APPLICATION NUMBER: OCR237-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 11 August 2015 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 26 August 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The words, ‘I guessed that she may be the agent’ at paragraph 5and the words ‘this surprised me’ at paragraph 25 of Ms Jacomos’ statement dated 17 July 2012 are inadmissible. 2. The Chief Executive, Department of Justice and Attorney General is given leave to file and must provide copies to the respondent of addendums to the statements of John Fitzpatrick dated 22 October 2013, Christine Fitzpatrick dated 19 February 2013 and Joanna Jacomos dated 17 July 2012 which addresses the matters set out in the table at [47] of these reasons by: 4:00pm on 18 September 2015. 3. The Chief Executive, Department of Justice and Attorney General is given leave to file and must provide a copy to Sarah Filippini of any further statement of the investigating officer on which the Chief Executive, Department of Justice and Attorney General intends to rely by: 4:00pm on 18 September 2015. -- 1 of 13 -- 2 4. Sarah Filippini is granted an extension of time to file and provide copies to the Chief Executive, Department of Justice and Attorney General of all statements on which she intends to rely by: 4:00pm on 1 September 2015. 5. The Chief Executive, Department of Justice and Attorney General may file and provide to Sarah Filippini copies of any statements in response to the statements filed by Sarah Filippini by: 4:00pm on 18 September 2015. 6. Sarah Filippini may file and provide copies to the Chief Executive, Department of Justice and Attorney General of any statements in response to the addendum statements referred to in order 2 by: 4:00pm on 2 October 2015. 7. Each party is to provide a list of witnesses required for cross-examination 14 days prior to the hearing date. 8. Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination, Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing. 9. The application is set down for a hearing of five days commencing 1 February 2016 at 9:30 am in Brisbane. 10. The parties must notify the Tribunal seven days before the hearing date if the days allocated for the hearing can be reduced down from five days. 11. Leave is granted to all parties to apply for further directions before hearing. CATCHWORDS: Statements of evidence - admissibility of evidence Property Agents and Motor Dealers Act 2000 (Qld), s 164 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Briginshaw v Briginshaw (1938) 60 CLR 336 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 -- 2 of 13 -- 3 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 APPEARANCES/REPRESENTATIVES: APPLICANT: Chief Executive, Department of Justice and Attorney General represented by Mr Robert Vize in house counsel RESPONDENT: Sarah Louise Filippini represented by Mr Mark Martin QC instructed by Mills Oakley Lawyers REASONS FOR DECISION Background [1] The applicant applied to the Tribunal to commence disciplinary proceedings under the Property Agents and Motor Dealers Act 2000 (Qld) (the Act) as in force at the time of the application. The applicant claims that grounds exist to take disciplinary action against the respondent in that she has, as a real estate licensee, contravened the Act and she has been incompetent or acted in an unprofessional way. It is alleged that the respondent has contravened s 164(1) of the Act by employing as a real estate salesperson, a person she knows or ought to know does not hold a registration certificate as a real estate salesperson, namely her mother, Ms Heather Filippini. [2] On 26 June 2015, the Tribunal directed that a half day hearing be conducted to determine the admissibility of the following statements of evidence filed by the applicant: a) John Kelsall Fitzpatrick dated 22 October 2013; b) Christine Vivian Fitzpatrick dated 19 February 2013; c) Joanna Jacomos dated 17 July 2012. [3] In addition to the oral submissions made at the hearing, the respondent relies on the written submission filed on 7 August 2015. The applicant relies on the oral submissions made at hearing and the written submission filed on 10 August 2015. The Tribunal has considered those submissions and the relevant statements. The Tribunal has also considered the additional statement of Mr Fitzpatrick dated 17 July 2015 in response to the affidavits of Ms Heather and Ms Sarah Filippini. Those affidavits were filed in the Tribunal after the preliminary hearing but before delivery of these reasons. The Tribunal has also considered the application and the particulars of the application. Legal principles [4] The respondent’s written submissions referred the Tribunal to s 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) which provides that the Tribunal must observe the rules of natural -- 3 of 13 -- 4 justice but is not bound by the rules of evidence or procedures applying to courts of record. The respondent argues that that this does not mean that all rules of evidence may be ignored as of no account. The Tribunal has also considered the other paragraphs of s 28(3):  that in conducting a proceeding the Tribunal may inform itself in any way it considers appropriate and  must act with as little formality and technicality and with as much speed as the requirements of the Act, an enabling Act or the rules and a proper consideration of the matters before the Tribunal permit, and  must ensure so far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. [5] Further, the Tribunal is guided by the reasoning of this Tribunal constituted by the Honourable J B Thomas in Crime and Misconduct Commission v Assistant Commissioner Ross Barnett.1 In that case, the Tribunal considered whether the CMC could adduce ‘new evidence’, in relation to its application for review of a disciplinary decision made against a police officer (Sergeant Eaton) who was found guilty of police misconduct. The CMC sought to admit the coroner’s findings in an inquest into the deaths of two men in the course of a police pursuit by Sergeant Eaton. [6] The Tribunal said that before it can be sensibly determined whether evidence should be received there are threshold questions as to whether it is relevant and what it is capable of proving.2 [7] Section 164(1) of the Act, requires a consideration of the following: a) Whether the respondent employed Ms Heather Filippini as a real estate salesperson; and b) Whether the respondent knew or ought to know that Ms Heather Filippini did not hold a registration certificate as a real estate salesperson. [8] Relevant to a consideration and determination of those issues is whether the actions of Ms Heather Filippini in assisting the respondent were the actions of a real estate salesperson and further whether the respondent knew her mother was performing those actions. [9] In relation to relevance, the Tribunal in Re Eaton stated:3 It is true that the tribunal is not bound by the rules of evidence, it may inform itself in any way it considers appropriate and act with as little formality and technicality as the requirements of the Act and fair practice will permit (Queensland Civil and Administrative Tribunal Act 2009 section 28(3)). 1 [2010] QCAT 690. 2 Ibid, at [20]. 3 Ibid, at [22]. -- 4 of 13 -- 5 However the tribunal is conscious of the fact that the rules of evidence “represent the attempt made, through many generations to evolve a method inquiry best calculated to prevent error and elicit truth” (per Evatt J in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228,256).4 The curial rules of evidence may afford useful guidance even though they are not binding here. [10] In Re Eaton, the Tribunal decided that the coroner’s findings could be admitted but only to demonstrate the background knowledge and state of mind of Sergeant Eaton as opposed to evidence of prima facie facts stated in the coroner’s findings. The Tribunal then concluded:5 In describing the capacity of the evidence I am not implying that it carries any particular level of persuasion or seriousness, or that the case falls at the serious end of the spectrum. Its weight will be for the tribunal member who conducts the review after considering all the evidence its admission will simply permit the CMC to make out a fuller case than has so far been presented. Sergeant Eaton should have the opportunity, if advised to exercise it, of giving further evidence to explain or rebut the evidence so admitted. It will therefore be necessary to allow the parties to seek any further directions covering the presentation of any such evidence. [11] Both parties agreed that those are the appropriate principles to apply in a hearing of this kind. [12] In determining whether evidence is admissible, it is clear from Re Eaton that the primary concern for a Tribunal is whether the evidence is relevant to the issues for determination. It is also clear from Re Eaton and the Tribunal agrees that not all evidence which is found to be relevant will be accorded the same weight by the Tribunal finally determining the application. Further, the Tribunal considers that the weight to be accorded to evidence should be a matter for the Tribunal at the time of determining the principal proceeding after all relevant evidence has been called, tendered, tested and been the subject of submissions from the parties. [13] The respondent argues that in determining whether evidence should be admitted it is relevant that this is a disciplinary matter where the sanction sought against the respondent is severe. The respondent argues that removal of the respondent’s licence is very serious and that meticulous care must be exercised lest the procedure by which she is deprived of her chosen vocation and potential to earn income will not meet the essential standards of fairness.6 [14] The Tribunal accepts that in disciplinary proceedings the Tribunal must be reasonably satisfied of the facts alleged. The degree of satisfaction required 4 This authority was also relied upon by the respondent at [1] of the respondent’s written submission. 5 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 at [33]-[34]. 6 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 per Deane J at 687 and 688. -- 5 of 13 -- 6 varies according to the gravity of the fact to be proved.7 However, in a preliminary hearing of this type the Tribunal is not determining the facts alleged. That is a matter for the Tribunal at the final hearing. [15] The respondent also submits that parts of the statements in their current form fail to make it clear to the respondent the case she is required to meet. [16] The respondent has been given the applicant’s application and its annexures, which set out the bases for the applicant’s application with adequate particularity. The statements in issue are consistent with those particulars and to the extent that new evidence or claims are sought to be relied upon at the final hearing, it is open for the respondent to raise any objections at that time. That submission by the respondent is otherwise dealt with by the reasons which follow. Statement of John Fitzpatrick [17] Turning then to a consideration of the statements in issue. The statement of John Fitzpatrick covers his interactions with Ms Heather and Ms Sarah Filippini in relation to the inspection and purchase of a property listed by Island Realty, the potential sale of his property and what he observed in relation to inspections occurring at a third property. [18] The respondent argues that the use of certain words in particular paragraphs is confusing or inadmissible in the form stated and other paragraphs are too vague or uncertain to be of any probative value, in particular, certain words in paragraphs 9, 10, 13, 15, 16 and 21 as well as paragraphs 22 and 23 in their entirety. [19] The respondent argues that words such as ‘I have had further general discussion with Heather and Sarah’ are not admissible because the witness is not specific about to whom he spoke and what was said. [20] Mr Fitzpatrick’s statement dated 17 July 2015 which responds to the affidavits of the respondent and Ms Heather Filippini provides further particulars of the discussions regarding the furniture package referred to in paragraph 16 of the statement in issue.8 While the respondent conceded that the additional statement essentially addresses the respondent’s concerns regarding paragraph 16 of the statement in issue, the respondent argued that that did not prevent the Tribunal from determining that paragraph 16 was inadmissible and in fact, it should do so. [21] The applicant submits that where the witness cannot specifically state what was said it is a matter of the weight to be given to the evidence by the Tribunal determining the application. In relation to certain parts of the statements in issue, the applicant seeks leave to provide an addendum statement to provide more precise details of discussions and meet other 7 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362. 8 See in particular [24] of the statement of John Fitzpatrick dated 17 July 2015 in response. -- 6 of 13 -- 7 criticisms of the statement in its current form. The applicant otherwise submits that the evidence is relevant. [22] At the time of the hearing, the respondent had not filed statements of evidence of four witnesses she intends to call at the final hearing. Further, the Tribunal did not then have before it the affidavits of either the respondent or Ms Heather Filippini. In those circumstances, the Tribunal does not consider that there is any unfairness to the respondent in giving the applicant time to address the matters raised by the respondent prior to the final hearing. The Tribunal will provide the respondent with an opportunity to file statements of evidence in response to the addendum statement, if she considers it necessary. [23] Further, the Tribunal considers that the contents of paragraphs 9, 10, 13, 15, 16 and 21 are relevant to the issues for determination at the final hearing. [24] Paragraph 9 relates to the actions of Ms Heather Filippini and whether the respondent was aware of those actions. The Tribunal considers that the last phrase in paragraph 10 provides a basis for the impression expressed by Mr Fitzpatrick. Paragraph 13 relates to the actions of Ms Heather Filippini and the respondent’s knowledge of those actions. Paragraph 15 relates to the actions of Ms Heather Filippini and the respondent’s knowledge of them. Paragraph 16 relates to Mr Fitzpatrick’s understanding of who negotiated the furniture package and is relevant to Ms Heather Filippini’s actions. Paragraph 21 relates to Ms Heather Filippini’s actions and the respondent’s knowledge of them. [25] In relation to paragraph 22 of Mr Fitzpatrick’s statement, the respondent argues that the address of the property is not identified. The respondent also argues that as the Parklane Terrace address does not form part of the particulars of the application filed by the applicant any evidence about what occurred at that property is inadmissible. [26] The Tribunal accepts the applicant’s submission that Mr Fitzpatrick’s observations of what was occurring at his neighbour’s address, is some circumstantial evidence of Ms Heather Filippini’s actions and the respondent’s knowledge of them. The Tribunal does not consider, given the limited nature of the evidence regarding that property that the applicant’s failure to mention it in the particulars of the application prevents it being admissible provided it is relevant. The Tribunal also considers that the contents of the statement are capable of proving the facts to be determined at the final hearing [27] The Tribunal finds that Mr Fitzpatrick’s statement is admissible. The Tribunal grants leave to the applicant to file an addendum statement in line with the table at the end of these reasons. Statement of Christine Fitzpatrick -- 7 of 13 -- 8 [28] Mrs Fitzpatrick’s statement covers similar events to those covered in her partner, Mr Fitzpatrick’s statement. [29] The respondent’s particular criticism of the statement is that Mrs Fitzpatrick fails to specifically state what was said and by whom when referring to discussions taking place. Further, the respondent submits that other paragraphs are irrelevant and too vague or uncertain to be of any probative value. [30] The applicant submits that the contents of the statement are relevant. In relation to certain parts of the statement seeks leave to provide an addendum statement. In particular, the addendum statement would state where possible what was said and by whom where Mrs Fitzpatrick refers to discussions with Ms Heather Filippini and the respondent. Otherwise, the applicant says that where Mrs Fitzpatrick cannot provide details of exactly what was said, it is a question of the weight to be accorded to that evidence. [31] For similar reasons to those expressed in relation to Mr Fitzpatrick’s statement, the Tribunal finds that the contents of Ms Fitzpatrick’s statement are relevant. Paragraphs 12, 14 and 15 relate to Ms Heather Filippini’s actions and her daughter’s knowledge of them. [32] Paragraph 15 of Mrs Fitzpatrick of the statement relates to the same matter as paragraph 22 of Mr Fitzpatrick’s statement. The Tribunal’s reasoning in relation to paragraph 22 of the Mr Ftizpatrick’s statement also applies in relation to paragraph 15 of Mrs Fitzpatrick’s statement. The Tribunal also considers that the contents of Mrs Fitzpatrick’s statement are capable of proving the facts to be determined at the final hearing. The Tribunal finds it is admissible. [33] For the same reasons as expressed in relation to Mr Fitzpatrick’s statement, the Tribunal gives leave to the applicant to file an addendum statement in accordance with the table at the end of these reasons. Statement of Joanna Jacomos [34] Ms Jacomos’ statement covers her interactions with a person she understood to be Ms Heather Filippini and with the respondent during inspections of properties at various addresses. The respondent argues that the entire statement is inadmissible because it is based on Ms Jacomos’ assumption, in the absence of a formal introduction, that the person with whom she interacted was Ms Heather Filippini. [35] The respondent also argues that the last paragraph of the statement cannot make the statement admissible as a google search as against the respondent is also inadmissible. [36] The applicant submits that where, at paragraph 4 of the statement, Ms Jacomos states ‘I was aware’ she is stating that she holds knowledge or a belief and is entitled to give that evidence. The applicant further submits that it is common knowledge in the suburb that there is a mother and daughter -- 8 of 13 -- 9 involved in real estate. For those reasons, the applicant submits that the witness can give the evidence but its weight is a different matter. In the applicant’s submission, the last paragraph regarding the images viewed on the google search gives truth to the statement. [37] In relation to Ms Jacomos’ identification of Ms Heather Filippini by reference to images located on a search of ‘google’, the applicant agrees that further clarification of the particular images used by Mrs Fitzpatrick is required and seeks leave to file an addendum statement to address that. The applicant also seeks leave to provide a further statement of the investigating officer to clarify the identification of Ms Heather Filippini by Ms Jacomos. [38] The applicant relies on the affidavit of Ms Heather Filippini wherein she admits to speaking to Ms Jacomos. The affidavit of Ms Filippini was filed in the Tribunal after the hearing but before delivery of these reasons. The Tribunal has had an opportunity to read the affidavit. It is clear that Ms Filippini acknowledges speaking with Ms Jacomos. [39] The applicant concedes that the words, ‘I guessed that she may be the agent’ where they appear in paragraph 5 of Ms Jacomos’ statement are not admissible. The applicant agrees that the words ‘this surprised me’ in paragraph 25 of Ms Jacomos’ statement are inadmissible. [40] Otherwise, the applicant argues that the other criticisms of the evidence go to matters of weight or, contrary to the submissions of the respondent, the evidence is relevant. [41] The respondent submits that Ms Jacomos’ statement, if inadmissible, cannot be made admissible by virtue of Ms Filippini’s affidavit. Further, the respondent argues that it is now too late for the applicant to lodge any further statements. [42] While Ms Jacomos’ statement is not perfectly constructed or ordered, it is open for Ms Jacomos to express her belief regarding the identity of the person/people with whom she spoke. Her belief is based on her knowledge of the business in a suburb she says she knows. While the respondent argues that another statement cannot make Ms Jacomos’ statement admissible, the Tribunal considers it would be unfair to the applicant to determine that Ms Jacomos’ statement is inadmissible in its entirety when Ms Heather Filippini swears that she spoke with Ms Jacomos and their meeting does not therefore appear to be in dispute. [43] In relation to paragraph 23 of Ms Jacomos’ statement, the Tribunal is prepared to allow Ms Jacomos to give evidence regarding her honestly held belief that Ms Heather Filippini was the principal agent. That belief is based on her interactions with both Ms Sarah and Ms Heather Filippini as stated in her statement. Further, as Ms Jacomos is a former real estate agent, it is arguable that she has some industry experience to support her belief. [44] The Tribunal considers that the paragraphs of the statement that the respondent claims are irrelevant are relevant. Paragraph 5 of Ms Jacomos’ -- 9 of 13 -- 10 statement provides information about what occurred on the day and Ms Jacomos’ introduction to Ms Sarah Filippini. Paragraph 11 relates to Ms Sarah Filippini’s knowledge of her mother’s actions. Paragraph 13 relates to what occurred on that date and leads on to paragraph 14. Paragraph 14 relates to Ms Heather Filippini’s actions in the presence of her daughter and what occurred on that day. Paragraph 19 provides details of what occurred on the day. Paragraph 22 relates to Ms Jacomos’ interaction with Ms Heather and Ms Sarah Filippini in each other’s presence. Paragraph 23 of Ms Jacomos’ statement relates to Ms Heather Filippini’s actions in Ms Sarah Filippini’s presence. [45] The Tribunal finds that the contents of Ms Jacomos’ statement are relevant. The weight to be accorded to the evidence is of course another matter and one for the Tribunal at the final hearing. The Tribunal also considers that the statement is capable of proving the relevant facts. The statement is admissible. [46] For the reasons previously given in relation to the statement of Mr Fitzpatrick the Tribunal gives leave to the applicant to file an addendum statement in line with the table at the end of these reasons. Conclusion [47] The addendum statements, should address the matters set out in the table. The Tribunal does not seek to confine the applicant to providing only those details set out in the table provided the details are relevant and relate to the evidence already given in the statements in issue: Statement Paragraph Words Details of addendum John Fitzpatrick 9 ‘indicated’ What is meant by ‘indicated’. 10 I gained the impression from… No further addendum required unless what is contained in the balance of paragraph 10 and the contents of paragraph 3 of Mr Fitzpatrick’s statement dated 17 July 2015 do not contain all of the information on which the witness gained the impression that Heather was the agent in charge. 13 Discussed with Heather and Sarah No addendum required unless the witness can recall what was said and by whom -- 10 of 13 -- 11 15 I gathered she was conferring with the property owner regarding a final price. Clarification required to identify the basis for the witness concluding that Heather was conferring with the owner. This is unless [24] of the statement dated 17 July 2015 contains the basis to the extent to which the witness can recall the discussions. 15 I pointed out Confirm that this word means informed. 16 I was eventually advised Clarification of the identity of who advised the witness 21 I have had further general discussions with Heather and Sarah regarding our property Provide details of the discussions and with whom those discussions occurred 22 I noticed that they both attended open houses at the property next door to us for several months, as they had obtained a listing for our New Zealand neighbour’s house Provide details of the address of this property and to whom the word ‘they’ refers 23 I also had cause to speak to both Heather and Sarah. When confronted, both denied the rumours and nothing further transpired Provide details of whether the conversation was had with one or other of Heather or Sarah Filippini and whether the conversations were with one party alone or in the presence of the other -- 11 of 13 -- 12 Christine Fitzpatrick 12 John and I attended and discussed with… Provide details of the discussions and with whom those discussions occurred and whether the discussions were with one party alone or in the presence of the other 14 I have had further discussions with Heather and Sarah regarding our property Provide details of the discussions and with whom those discussions occurred and whether the discussions were with one party alone or in the presence of the other Joanna Jacomos 26 Identify the photographs used by the witness to identity Heather Filippini as the older person with whom the witness spoke. [48] The Tribunal grants leave to the applicant to lodge a further statement of the investigating officer, which relates to the identification by Ms Jacomos of Ms Heather Filippini as the person with whom she spoke. [49] As there is no dispute between the parties that the words, ‘I guessed that she may be the agent’ at paragraph 5 of Ms Jacomos’ statement and the words, ‘this surprised me’ at paragraph 25 of her statement are inadmissible, the Tribunal orders that those words are inadmissible and will not be taken into account in the principal proceeding. Otherwise, the statements are admissible. [50] With a view to progressing the application to a final hearing, the Tribunal makes the following orders: a) The words, ‘I guessed that she may be the agent’ at paragraph 5 and the words, ‘this surprised me’ at paragraph 25 of Ms Jacomos’ statement dated 17 July 2012 are inadmissible. b) The applicant is given leave to file and must provide copies to the respondent of addendums to the statements of John Fitzpatrick dated 22 October 2013, Christine Fitzpatrick dated 19 February 2013 and Joanna Jacomos dated 17 July 2012 addressing the matters set out in the table at paragraph 47 of these reasons by no later than 4:00 pm on 18 September 2015. c) The applicant is given leave to file and must provide copies to the respondent of a further statement of the investigating officer on which it intends to rely by no later than 4:00 pm on 18 September 2015. -- 12 of 13 -- 13 [51] The Tribunal further directs: a) Sarah Filippini is granted an extension of time to file and provide copies to the Chief Executive, Department of Justice and Attorney General of all statements on which it intends to rely by:4:00pm on 1 September 2015. b) The Chief Executive, Department of Justice and Attorney General may file and provide to Sarah Filippini copies of any statements in response to the statements filed by Sarah Filippini by: 4:00pm on 18 September 2015. c) Sarah Filippini may file and provide copies to the Chief Executive, Department of Justice and Attorney General of any statements in response to the addendum statements referred to in the second order by: 4:00pm on 2 October 2015. d) Each party is to provide a list of witnesses required for cross- examination fourteen days prior to the hearing date. e) Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination, Any application for a witness to attend the hearing by a remote means or be remote conferencing must be made prior to 14 days before the hearing. f) The application is set for hearing for five days commencing on 1 February 2016 at 9:30 am in Brisbane. g) The parties must notify the Tribunal seven days before the hearing date if the days allocated for the hearing can be reduced down from five days. h) Leave is granted to all parties to apply for further directions before hearing. -- 13 of 13 --