Chief Executive, Department of Justice and Attorney General v O'Connell [2013] QCAT 162

CITATION: Chief Executive, Department of Justice and Attorney General v O’Connell [2013] QCAT 162 PARTIES: Chief Executive, Department of Justice and Attorney General (Appellant) v Kristina Jane O’Connell (Respondent) APPLICATION NUMBER: OCR392 -12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 25 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Kristina Jane O’Connell is reprimanded. 2. Kristina Jane O’Connell is disqualified permanently from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000. 3. Kristina Jane O’Connell is disqualified permanently from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. CATCHWORDS: PROPERTY AGENT – where agent drew money from trust – where agent acted as agent while unlicensed – where agent falsified statements to clients to conceal drawings -- 1 of 4 -- 2 Property Agents and Motor Dealers Act 2000 (Qld), s 10, s 496, Chapter 12, Part 1 Chief Executive, DTFTWID v Cornwell [2005] QCCTPAMD 49, cited The Chief Executive, Office Of Fair Trading v Hopper [2008] QCCTPAMD 24, cited Chief Executive, DEEDI v Schellaars [2010] QCAT 477, cited Chief Executive, DJAG v Maze [2012] QCAT 510, cited 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 [1] Ms O’Connell held a real estate agent’s licence that expired on 23 December 2009. Together with her husband, she managed a residential complex at Burleigh Waters. The business involved letting units in the development. Ms O’Connell continued to act as a letting agent until May 2011, even though she was unlicensed. [2] The Chief Executive referred Ms O’Connell to the Tribunal for disciplinary proceedings under s 496 of the Property Agents and Motor Dealers Act 2000 asserting that she is not a suitable person to hold a licence and/or that she has been carrying on business in an unprofessional way. [3] The Chief Executive asserts that Ms O’Connell acted as an agent when she was not licensed to do so. The Chief Executive asserts that, on 64 occasions between July 2010 and April 2011, Ms O’Connell drew money from trust without authority and for personal use. The Chief Executive asserts that, from 4 November 2009 to 23 September 2010, Ms O’Connell rendered four false accounts to clients. The accounts showed that money had been transferred to the clients’ bank account when Ms O’Connell had not transferred that money. The Chief Executive also asserts that Ms O’Connell’s failure to pay those amounts to the clients demonstrated that Ms O’Connell lacked honesty, fairness and professionalism. [4] Ms O’Connell has admitted1 that she acted while unlicensed, withdrew trust money for her personal use and falsified statements. The Chief Executive has provided a comprehensive brief of evidence that confirms the details of its allegations against Ms O’Connell. I am therefore satisfied that disciplinary proceedings are appropriate. Penalty [5] The Chief Executive seeks the following penalty: a) A reprimand. 1 Statement Kristina Jane O’Connell given 12 March 2012. -- 2 of 4 -- 3 b) That Ms O’Connell is permanently disqualified from holding any form of licence, or being an executive officer of a corporation that holds any form of licence. c) A fine. [6] The Chief Executive has referred me to: a) Chief Executive, DTFTWID v Cornwell2; b) Chief Executive, DEEDI v Schellaars3; c) The Chief Executive, Office of Fair Trading v Hopper4; and d) Chief Executive DJAG v Maze5. [7] The weight of that authority favours a disqualification. Trust accounts exist because it is money placed “on trust” with the licensee and is not available to the licensee unless the very strict requirements of PAMDA6 have been satisfied. The protection of trust money is a fundamental principle underlying the protection of consumers and the regulation of the industry. [8] Ms O’Connell violated the trust placed upon her as licensee on 64 occasions. On any view, that is a deliberate and sustained course of conduct. She compounded that breach of trust by falsifying accounts and operating without a licence. It is by good fortune, not good management, that no member of the public has suffered financial loss because of Ms O’Connell’s breaches. [9] I accept that Ms O’Connell was under financial pressure at the time she committed these acts. I also accept that her husband was extremely ill at the time, that she brought these matters to the attention of the Chief Executive and that she has cooperated fully in the investigation. She says she is remorseful but I note that Ms O’Connell has not accepted that her actions were deliberate or that she should be fully responsible for them.7 [10] Ms O’Connell has asked for leniency but she does not say in what way I should exercise my discretion while still fulfilling my obligation to the community. I note the character reference and that she is no longer working as a real estate agent. Neither of these facts assists me in my deliberation. [11] I am satisfied that Ms O’Connell should be disqualified permanently from holding a licence or being the executive officer of a company that holds a licence. [12] The Chief Executive submitted that I should also impose a fine of $10,000 but the basis of that submission is not articulated nor indicated by the authorities. Ms O’Connell says that she found herself in this position because of financial difficulties. Those difficulties continue and it is clear to 2 [2005] QCCTPAMD 49. 3 [2010] QCAT 477. 4 [2008] QCCTPAMD 24. 5 [2012] QCAT 510. 6 Chapter 12, Part 1. 7 Statement Kristina Jane O’Connell at [26]. -- 3 of 4 -- 4 me that she will have trouble paying a fine. As I have previously commented:8 [A] fine will do nothing to protect the public, which is the primary purpose of the legislation… if the threat of permanent disqualification is not a sufficient deterrent to licensee, then a fine is unlikely to have any effect. Orders [13] Kristina Jane O’Connell is reprimanded. [14] Kristina Jane O’Connell is disqualified permanently from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000. [15] Kristina Jane O’Connell is disqualified permanently from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. 8 Chief Executive DJAG v Maze supra at [15]. -- 4 of 4 --