Filippini v Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development [2007] QDC 351

DISTRICT COURT OF QUEENSLAND CITATION: Filippini v Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development [2007] QDC 351 PARTIES: HEATHER FILIPPINI Applicant V CHIEF EXECUTIVE, DEPARTMENT OF TOURISM, FAIR TRADING & WINE INDUSTRY DEVELOPMENT Respondent FILE NO/S: 2177/2006 and 2348/2006 DIVISION: Civil PROCEEDING: Appeal from the Commercial & Consumer Tribunal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 21 December 2007 DELIVERED AT: Beenleigh HEARING DATE: 9 May 2007 JUDGE: Dearden DCJ ORDER: Appeal against conviction dismissed Appeal against sentence granted CATCHWORDS: APPLICATION – Appeal against conviction and sentence of Commercial and Consumer Tribunal – where the Tribunal found the applicant guilty of a breach of s 145 Property Agents & Motor Dealers Act – where the applicant gained a beneficial interest in a property LEGISLATION: Property Agents & Motor Dealers Act 2000 (Qld) ss 13, 143, 145 Commercial & Tribunal Act 2003 (Qld) s 100(1) Acts Interpretation Act 1954 (Qld) ss 14(2)(a), 14A(2) Auctioneer’s & Agents Act 1971 (Qld) CASES: Parland Pty Ltd v Mariposa Pty Ltd [1995] 5 TAA s R 121 Berceanu v Boltons Real Estate, Kidd and Lin [2004] QDC 18 -- 1 of 16 -- 2 Chief Executive v Buchan [2004] QCCTPAMD 9 Chief Executive v Bartkowski [2005] QCCTPAMD 38 Chief Executive v Reinhardt Pty Ltd [2005] QCCTPAMD 52 Chief Executive v Finlay [2006] QCCTPAMD 27 COUNSEL: Mr K Howe for the Applicant Mr M Eliadis for the Respondent SOLICITORS: Michael Sing Lawyers for the Applicant CH Lohe, Crown Solicitor for the Respondent Introduction [1] The applicant appeals against the decision of Member Gallagher in the Commercial & Consumer Tribunal (“CCT”) on 29 June 2006 finding the applicant guilty of a breach of s 145 of the Property Agents & Motor Dealers Act 2000 (“PAMDA”) namely that the applicant gained a beneficial interest in a property at 70 King Charles Drive, Sovereign Islands owned by Denise Elizabeth Love. [2] The applicant appeals against the penalty imposed in respect of that matter (which was disciplinary charge 3 in the original hearing), but also appeals in respect of penalty in relation to disciplinary charge 1 which alleged that in breach of s 145 of PAMDA, the applicant gained a beneficial interest in a property at 33 King Arthur Court, Sovereign Islands, owned by Joseph and Catherine Fenech. [3] The appeal against conviction in respect of disciplinary charge 3, and the appeals against penalty in respect of disciplinary charges 1 and 3, were heard together by me at the Brisbane District Court on 9 May 2007. Appellant Jurisdiction [4] The Commercial & Tribunal Act 2003 provides at s 100(1) that: -- 2 of 16 -- 3 “A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal, with the court’s leave, only on the ground of – (a) error of law; or (b) excess, or want, of jurisdiction.” Leave was granted by Samios DCJ on 27 November 2006 and a stay of the operation of the tribunal’s decision was granted by Samios DCJ on 2 August 20061 pending the determination of these appeals. [5] The specific orders appealed against are as follows:- (i) The real estate agent’s licence no. 2305956 held by Heather Isobel Filippini is cancelled; (ii) Heather Isobel Filippini is disqualified from holding a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of four years; (iii) Heather Isobel Filippini must pay to the Chief Executive a fine of three thousand seven hundred and fifty dollars ($3,750.00) in respect of disciplinary charge 1, by 4.00pm on 22 August 2006; (iv) Heather Isobel Filippini must pay to the Chief Executive a fine of seven thousand five hundred dollars ($7,500.00) in respect of the disciplinary charge 3 by 4.00pm on 22 August 2006. [6] It is a curious feature of this matter that the original (contested) hearing, which took place in respect of five disciplinary charges (one of the original charges was discontinued), was conducted on 18 and 23 May 2006 before Member Gallagher in the CCT and his decision was delivered on 29 June 2006. That decision, which 1 Document 4 (Order dated 2 August 2006) -- 3 of 16 -- 4 found the applicant guilty in respect of disciplinary charges 1 and 3 (out of the total of six disciplinary charges) then required the proceedings to be re-listed for submissions on penalty and costs. [7] By the time the penalty and costs proceeding was heard, Mr Gallagher was no longer a member of the CCT and Mr Bradley was the presiding member in respect of that stage of the proceedings. He delivered a decision on 1 August 2006, the details of which are set out above. Mr Bradley made no order as to costs. Appeal against Conviction – Disciplinary Charge 3 [8] The applicant was at the relevant time a licensed real estate agent who operated under the name Heather Filippini Island Realty. Mrs Denise Love listed her property at 17 King Charles Drive, Sovereign Islands for sale with Ms Filippini’s real estate agency in or about June or July 2003. On 9 September 2003, Mrs Love contracted to sell the property to “A.A. Fedotov or nominee” for the sum of $1,300,000. A week or more after the contract was signed A.A. Fedotov nominated “Heather Isobel Penney” as transferee pursuant to the contract2. It is not disputed that “Heather Isobel Penney” was in fact the applicant utilising her maiden name3. On 29 October 2003, Mrs Love signed a transfer in favour of the applicant for the sum of $1,300,000, the transfer was produced to the Land Titles Office on 12 December 2003 and the applicant has been the registered owner of the property since that date4. [9] PAMDA s 145 relevantly provided as at 1 July 20035: 2 Exhibit R4, para 33 3 Exhibit HIJ12, Statement of Heather Filippini 4 See Statement of AA Fedotov, para 32, and Statement of Heather Filippini, paras 94-98 5 Reprint 2A rb -- 4 of 16 -- 5 “(1) This section applies to property placed by a person (“client”) with a real estate agent for sale, but does not apply if section 144 applies. (2) The real estate agent commits an offence if the agent obtains a beneficial interest in the property. Maximum penalty – 200 penalty units or three years imprisonment. (3) A real estate salesperson employed by the real estate agent commits an offence if the salesperson obtains a beneficial interest in the property. Maximum penalty – 200 penalty units or three years imprisonment. (4) A person does not contravene subsection (2) or (3) if – (a) the person – (i) before a contract for the sale of the property is entered into, obtains the client’s written acknowledgment in the approved form that the client – (A) is aware that the person is interested in obtaining a beneficial interest in the property; and (B) consents to the person obtaining the interest; and (ii) acts fairly and honestly in relation to the sale; and (b) no commission or other reward is payable in relation to the sale; and (c) the client is in substantially as good a position as the client would be if the property was sold at fair market value.” [10] PAMDA s 13 headed “Meaning of ‘beneficial interest’” provides at s 13(1): “for this Act, a licensee, other than a property developer, is taken to have a ‘beneficial interest’ in property in each of the following cases –” and then what follows is a series of subheadings entitled “Case 1” through to “Case 8”, each of which has under that subheading a paragraph describing the circumstances under each of the listed “cases” in which a licensee is taken to have “beneficial interest”. [11] It is submitted on behalf of the applicant that the provisions of PAMDA s 13 contain an exhaustive list defining the term “beneficial interest”. The basis for that submission is asserted to be: - (1) The definition is not stated to be “inclusive” or non-exhaustive; (2) The stated cases (i.e. Case 1 – Case 8) appear to be comprehensive, as the words “for example” are not used, indicating a definitive list of situations that amount to obtaining a “beneficial interest”; -- 5 of 16 -- 6 (3) PAMDA s 13 is headed “Meaning of ‘beneficial interest’”. It is submitted that this arguably suggests that the section is intended to comprehensively define the term and because PAMDA was enacted after 30 June 1991, the heading forms part of the section6; and (4) Because PAMDA s 145 is a penal provision it should not be given an expansive interpretation7. [12] The relevant provision of PAMDA s 13 (“Meaning of ‘beneficial interest’”) is under the heading “Case 1” which provides that:- “The purchase of the property is made for the licensee or an associate of the licensee.” [13] The term “associate” is defined in PAMDA Schedule 2 as follows:- “ ‘Associate’, of a person, means – (a) a spouse, parent, brother, sister or child of the person; or (b) a child of the person’s spouse.” [14] The appointment of the applicant as the nominee for the contract of sale was found by Member Gallagher to have occurred one week after the contract of sale had been entered into between Mr Fedotov and Mrs Love8. [15] The argument on behalf of the applicant is that because the appointment of the applicant as nominee for the contract of sale occurred after the contract of sale had been entered into between Mr Fedotov and Mrs Love, then the dealings between the applicant and Mr Fedotov subsequently, did not amount to, nor were in any way associated with, a sale or purchase as those terms are used in PAMDA9. The term “obtain” is referred to in PAMDA s 143 which provides that:- 6 Acts Interpretation Act 1954 s 14(2)(a) 7 See Acts Interpretation Act s 14A(2) 8 Gallagher Decision, para 38 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) 9 Neither the term “prejudice” or the term “sale” is defined in the PAMDA -- 6 of 16 -- 7 “in this division [a reference to division 5 – interests in property which includes PAMDA s 145] – ‘obtain’ includes being in any way concerned in obtaining.” The Concise Oxford Dictionary defines the word “obtain” to mean “acquire, have granted one, get”. [16] As I understand the applicant’s submissions, it is asserted that the process by which the applicant obtained an interest in Mrs Love’s property does not fall within what is said to be the exhaustive definitions of “beneficial interest” set out in PAMDA s 13 and, in short, the nomination of the applicant as the transferee of the property was not associated with the sale or purchase of that property. [17] Member Gallagher’s response to this argument when it was placed before him on behalf of the applicant was that the use of the word “obtains” in PAMDA s 145(2), taking into account the broadening provisions of PAMDA s 143, embraces a much wider field than the references to “the purchase” of property in PAMDA s 13, which Member Gallagher did not consider constituted an exhaustive list. Given that in Member Gallagher’s view, the wider definition of PAMDA s 145 was consistent with the clear purpose of the legislative provisions, designed to prevent an agent taking advantage of their position, then he was satisfied that the ultimate outcome of the applicant acquiring title to Mrs Love’s property amounted to the applicant having “obtained” a beneficial interest in that property10. [18] I accept the submission on behalf of the respondent that the use of the term “is taken to have” in PAMDA s 13 is not the hallmark of an exhaustive list but is, rather, a series of examples as to how a real estate agent would be considered to have obtained a beneficial interest in the property. 10 Gallagher Decision, paras 34 and 35 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) -- 7 of 16 -- 8 [19] I consider it is clear that the applicant obtained an interest in the property of Mrs Love. As the respondent’s written submissions point out, the applicant was the nominated buyer under the contract, the property was purchased with funds provided by her, and transferred into her name pursuant to the terms of the contract, and she acquired title to the property under a transfer for which she provided consideration. [20] I adopt the submissions made on behalf of the respondent that in approaching an exercise of statutory interpretation such as this, pursuant to common law principles, the courts will adopt interpretations that are consistent with achieving the purpose and objects of the Act11; the courts will resist strongly an interpretation of an Act that will permit a person to take advantage of his or her own wrong12; the courts will decline to interpret an Act in such a way that its operation will be negated if there is an alternative interpretation available that will carry out the purpose of the Act;13 and that if general words are used, they will be given their plain and ordinary meaning unless the contrary is shown14. [21] To accept the submissions made on behalf of the applicant would be to allow a Mack truck to be driven through the provisions of the legislation which are designed to protect the sellers of property from real estate agents misusing their position. As the respondent submitted, if the applicant in this situation was considered not to have obtained a beneficial interest in the property concerned, then the legislation could be easily sidestepped by the device of utilising a “dummy” purchaser and stepping into the shoes of the contracting party as nominee any time after the contract was entered into. 11 Pearce & Geddes, Statutory Interpretation of Australia (6 th Ed) p 27 12 Pearce & Geddes, p 61 13 Pearce & Geddes, p 62 -- 8 of 16 -- 9 [22] Member Gallagher also relied on Parland Pty Ltd v Mariposa Pty Ltd [1995] 5 TAA s R 121 to find that the use of the term “and/or nominee” meant that if a person was in fact nominated by the purchaser, then the person nominated was prima facie a contracting party. I do not consider that Member Gallagher was in error when he found, on the facts15, that “the circumstances suggest to me that the role of Mrs Filippini as nominee ‘was not merely to be the entity in which title was to vest but the party which was to carry forward the contract to completion’”. Member Gallagher went on to find that: “In the circumstances, I am satisfied that Mrs Filippini was a party to the contract, once she was nominated by Mr Fedotov.” [23] I do not consider that the applicant has shown an error of law in respect of her conviction in relation to the Disciplinary Charge 3 and I consequently consider that Member Gallagher correctly held that the applicant obtained a beneficial interest in the property of Mrs Love in breach of PAMDA s 145(2), and no defence pursuant to PAMDA s 145(4) was able to be relied upon. [24] The appeal against conviction, therefore, is dismissed. Appeal against Sentence [25] The applicant submits that the sentence imposed (cancellation of the applicant’s real estate agent’s license, disqualification from holding a license or a registration certificate for four years, and fines of $3,750 on disciplinary charge 1 and $7,500 on disciplinary charge 3) is so out of kilter with the appropriate range that the sentence indicates that there must have been an error of law (i.e. that the sentence was manifestly excessive and unjust in the circumstances). 14 Pearce & Geddes, p 43 15 Gallagher Decision, para 40 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) -- 9 of 16 -- 10 [26] In summary, the submissions on behalf of the applicant are that a review of comparable sentences in the CCT, and in the District Court (on appeal from the CCT) indicate that only a fine should have been imposed. The applicant submits further that those comparatives which do involve a disqualification (in one case, wholly suspended) involve a factual basis which is much more serious than the factual basis on which the applicant in these proceedings was dealt with, and in any event involve a series of offences without close resemblance to the facts in the applicant’s case. In summary, the applicant asserts that Member Bradley failed to properly analyse the comparables placed before him in determining an appropriate punishment and therefore fell into appellable error. The applicant also submits that Member Bradley fell into error in relying upon irrelevant considerations and in failing to take into account material considerations. Factual Basis – Disciplinary Charge 1 [27] It is useful at this stage to outline the factual basis of Disciplinary Charge 1. On 18 June 2006, Alexei Fedotov and Sarah Fedotov entered into a contract to purchase from Mr & Mrs Fenech their property at 33 King Arthur’s Court, Sovereign Islands. Sarah Fedotov was at the relevant time married to Alexei Fedotov and is the applicant’s daughter. Consequently, Sarah Fedotov (known as Sarah Filippini as at the date of Member Gallagher’s decision delivered on 29 June 2006) was an “associate” as defined in Schedule 2 of PAMDA16. Sarah Fedotov/Filippini provided no monies for the purchase of the property of Mr & Mrs Fenech and gave evidence that the only reason for the inclusion of her name on the contract was because of Mr Fedotov’s difficulties in meeting the requirements of the Foreign Investments Review Board (“FIRB”). Member Gallagher found that at the time of the purchase of the property of Mr & Mrs Fenech, Mr Fedotov and Ms -- 10 of 16 -- 11 Fedotov/Filippini were in a “traditional matrimonial relationship” (having commenced a relationship in 1998, married in 2001 and separated in early 2005)17. Member Gallagher was satisfied that the purchase of the property of Mr & Mrs Fenech was made for Ms Fedotov/Filippini as well as for Mr Fedotov18. Member Gallagher was also satisfied that for the purposes of PAMDA s 145, it was not necessary for the real estate agent to know at the relevant time that a beneficial interest had been obtained, other than in respect of the issue of penalty. Member Gallagher found that the applicant obtained a beneficial interest in the property of Mr & Mrs Fenech because the purchase of that property was made for her daughter, Ms Sarah Fedotov/Filippini, who was the applicant’s “associate”, which placed the applicant in breach of PAMDA s 14519. [28] Member Bradley, in reviewing comparable cases, set out summaries of some ten cases20, but of those ten cases, only five could be said in my view to have any significant degree of comparability to the situation faced by the applicant in respect of these two charges. These comparables (as summarised by Member Bradley21) are as follows:- Berceanu v Boltons Real Estate, Kidd and Lin [2004] QDC 18 was a criminal proceeding, on appeal from the Magistrates Court. Ms Lin, who sold the Berceanu’s property to her parents with oral, but not the required written acknowledgement of their interest, pleaded guilty, was relatively young (28) and had been working as an employed real estate salesperson for only six months. Ms Lin’s registration was cancelled; she was 16 Gallagher Decision, para 8 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) 17 Gallagher Decision, para 16 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) 18 Gallagher Decision, para 19 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) 19 Gallagher Decision, para 21 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) 20 Bradley Decision, para 32 (Exhibit A, Affidavit of Michael Sing sworn 2 August 2006) 21 Bradley Decision para 32 (Exhibit D, Affidavit of Michael Sing sworn 2 August 2006) -- 11 of 16 -- 12 disqualified from holding registration for a period of six months and fined $1,000, in default imprisonment for three weeks. Chief Executive v Buchan [2004] QCCTPAMD 9 involved contraventions of sections of the former Auctioneer’s & Agents Act 1971 which prohibited a real estate agent charging a commission on a sale to an employee of the agent. It involved two sales. The Tribunal found that there was a genuine belief that the purchaser was not an employee of the agency, the practice of the business was to have appropriate forms signed and the appropriate disclosures had been made and, belatedly, the commissions had been refunded. The agent was reprimanded only. Chief Executive v Bartkowski [2005] QCCTPAMD 38 involved a contravention of s 145(2) of the PAMDA. The agent did disclose to the vendor his beneficial interest in acquiring the property before the vendor signed the contract, but did not obtain the required written acknowledgement. The contract was subsequently terminated. The agent had an otherwise unblemished record. He co-operated with the department’s investigation and admitted the disciplinary charges. He was fined 15 penalty units ($1,125). Chief Executive v Reinhardt Pty Ltd [2005] QCCTPAMD 52 involved an employed salesperson purchasing a property listed for sale with the agency. The agent and its principal co-operated with the department’s investigation and pleaded guilty to the charges at the first directions hearing. The Tribunal found that there was no dishonesty involved and no attempt to deceive the vendor, merely an oversight. A fine of 14 penalty units -- 12 of 16 -- 13 ($1,050) was imposed on the agency and 7 penalty units ($525) on the principal. Chief Executive v Finlay [2006] QCCTPAMD 27 involved an employed salesperson having an interest as a shareholder in a company that acquired a property listed for sale with the agency. The charge was contested; the interest was not disclosed to the vendors, but deliberately concealed. The salesperson was reprimanded and fined 15 penalty units ($1,125). [29] Member Bradley made the following points in sentencing22:- (a) “Mrs Filippini contested both disciplinary charges. It follows that she can not have the benefit of the reduction in penalty which is appropriate in cases where licensees plead guilty to disciplinary charges, particularly at an early point in time. (b) Mrs Filippini is the principal of her own real estate agency. The standard of responsibility expected of such a licensee is necessarily higher than that expected of an employed salesperson, expected to work under a principal’s close personal supervision. The penalties imposed on principals whose employees have offended might be expected to be lower than those for misconduct by a principal. (c) Mrs Filippini has no previous convictions for misconduct and has not been the subject of previous disciplinary charges. The two proven disciplinary charges involve separate transactions. For reasons of deterrence and example the penalty for two contraventions of s 145 will necessarily be higher than for a single first contravention. The fact of two contraventions also indicates that the misconduct was not a “one off” event, the risk of which to the public might be met by a lesser level of penalty. (d) Mrs Filippini operates at the higher end of the real estate market. As an indication of this, I note that each of the two sales the subject of the charges involved commissions in excess of $30,000. The level of deterrent of a maximum fine of $15,000 is necessarily limited in such circumstances. (e) In all of the circumstances and given the, at best, moderate expression of regret for the conduct, I am satisfied that to protect consumers from further breaches by Mrs Filippini and to deter other licensees from such breaches it is necessary to remove Mrs Filippini from the industry for some period of time.” 22 Bradley Decision, para 34 (Exhibit D, Affidavit of Michael Sing sworn 2 August 2006) -- 13 of 16 -- 14 [30] In my view, it is somewhat disingenuous to make the point in sentencing that the applicant contested the two disciplinary charges for which she was to be sentenced, when five disciplinary charges proceeded to trial and the applicant was successful (i.e. found not guilty) in respect of three of those disciplinary charges. [31] Although it is clear that the principal of a real estate agency who breaches the legislative requirements must receive a higher penalty than a principal whose breach has occurred as a result of the actions of an employee, the utilisation of a disqualification for such a principal is (in realistic terms) a much higher and more substantial penalty than an increased monetary penalty. [32] Member Bradley correctly noted that the applicant had no previous misconduct convictions nor had previously been the subject of disciplinary proceedings, but conversely noted the fact that the proven disciplinary charges involved separate transactions, on the facts some three years apart (although no reference was made to this in Member Bradley’s decision). [33] Member Bradley also noted the fact that the applicant operated at what he described as “the higher end of the real estate market” with consequent substantial commissions involving sums in excess of $30,000. However, his observation that in those circumstances, “the level of deterrent of a maximum fine of $15,000 is necessarily limited in such circumstances”23, is in my view not a basis on which it could be considered that a fine, even at a maximum level, was an insufficient deterrent to other licensees and/or insufficient protection to consumers to proceed by way of financial penalties as opposed to financial penalties and disqualification. 23 Bradley Decision, para 34(d) (Exhibit D, Affidavit of Michael Sing sworn 2 August 2006) -- 14 of 16 -- 15 [34] It is submitted on behalf of the applicant that in respect of disciplinary charge 3, the vendor (Ms Love) was aware that the applicant was purchasing the property24 and had signed a form acknowledging the relevant transaction noting that the applicant was purchasing the property25. Although I do not accept that the breach can be described as “purely technical” as is submitted on behalf of the applicant, it cannot in my view be said that the breach was so serious as to be analagous to a trust account violation26. Conclusion [35] In the circumstances, I consider that the penalty imposed by Member Bradley was manifestly excessive, and that the conduct of the applicant, although clearly in breach of relevant legislative provisions and occurring on two separate occasions separated by a period of three years, can and should have been adequately dealt with by way of substantial monetary fines. In reaching that conclusion, I have carefully considered the comparatives placed before Member Bradley in the CCT, and before this court, on appeal. I consider Member Bradley was in error in concluding that a substantial fine was insufficiently deterrent, and that (consequently) a disqualification should also be imposed. The comparatives I have referred to at paragraph 28, above, justify the imposition of substantial fines rather than disqualification for the conduct in respect of these two charges. [36] Accordingly I order as follows:- 1. Appeal against sentence granted. 2. Orders made by Member Bradley on 1 August 2006, namely:- 24 Transcript hearing Member Gallagher, p 87 25 Affidavit of Heather Filippini, Annexure “HIF12” 26 Bradley Decision, para 22 (Exhibit D, Affidavit of Michael Sing sworn 2 August 2006) -- 15 of 16 -- 16 (i) That real estate agent’s license no. 2305956 held by Heather Isobel Filippini is cancelled; (ii) Heather Isobel Filippini is disqualified from holding a license or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of four years; (iii) Heather Isobel Filippini must pay to the Chief Executive a fine of $3,750 in respect of disciplinary charge 1 by 4.00pm on 22 August 2006; and (iv) Heather Isobel Filippini must pay to the Chief Executive a fine of $7,500 in respect of disciplinary charge 3 by 4.00pm on 22 August 2006. are set aside. [37] I substitute the following orders:- 1. Heather Isobel Filippini is reprimanded in respect of her conduct constituting disciplinary charge 1 and disciplinary charge 3. 2. Heather Isobel Filippini must pay to the Chief Executive a fine of $7,500 in respect of disciplinary charge 1 within three months of the date of this order. 3. Heather Isobel Filippini must pay to the Chief Executive a fine of $10,000 in respect of disciplinary charge 3 within three months of the date of this order. [38] I consider that substantial fines, without disqualification, send clear and appropriate messages of general and specific deterrence, but remain proportionate to the serious nature of the breaches. I do not consider the breaches warranted the consequences which would flow from a lengthy disqualification. Costs [39] I will hear the parties on costs. -- 16 of 16 --