Chief Executive Department of Justice and Attorney General v Keyte [2012] QCAT 244

CITATION: Chief Executive Department of Justice and Attorney General v Keyte [2012] QCAT 244 PARTIES: Chief Executive Department of Justice and Attorney General v Robert Douglas Keyte APPLICATION NUMBER: OCR063-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 12 June 2012 DELIVERED AT: Brisbane ORDERS MADE: [1] Robert Douglas Keyte is reprimanded. [2] Robert Douglas Keyte is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 for a period of seven years from the date of this decision. [3] Robert Douglas Keyte is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of seven years from the date of this decision. [4] Robert Douglas Keyte shall pay to the Chief Executive Department of Justice and Attorney General a fine of $2,250 by1 October 2012. [5] Robert Douglas Keyte may not reapply for a real estate agent’s licence unless and until he has provided the Chief Executive with evidence that he has successfully completed the equivalent of a Certificate IV in Property Services (Real Estate). -- 1 of 6 -- 2 CATCHWORDS: REAL ESTATE AGENT – DISCIPLINARY PROCEEDINGS – where acted as real estate agent while unlicensed – where licence borrowed – where failure to lodge trust account audits – where no loss to consumers – whether not a suitable person to hold a licence – whether incompetent or acted in an unprofessional way Property Agents and Motor Dealers Act 2000, ss 496(1)(g)(i), 496(1)(g)(iii) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Chief Executive DTFTWID v Byrne [2005] QCCTPAMD 48 The Chief Executive, DTFTWID v Rogers, F [2005] QCCTPAMD 35 The Chief Executive, Department Of Tourism, Racing and Fair Trading v Wally Taylor P/L & Taylor, W R & Taylor, M G [2004] QCCTPAMD 2 Chief Executive DTFTWID v Byrne [2005] QCCTPAMD 8 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] The Chief Executive Department of Justice and Attorney General has applied to start disciplinary proceedings against Mr Keyte. The Chief Executive submits that proper grounds exist for disciplinary proceedings against Mr Keyte in that: a) Pursuant to s 496(1)(g)(i) of the Property Agents and Motor Dealers Act 2000, Mr Keyte is not a suitable person to hold a licence. b) Pursuant to s 496(1)(g)(iii) of the Act, Mr Keyte has been incompetent or acted in an unprofessional way. [2] Mr Keyte held a real estate agent’s licence until 28 February 2010. He was the sole director and principal of Keyte Realty Pty Ltd, which traded under the registered business name of Keyte’s – the Smart Choice in Real Estate. The company’s corporate real estate licence expired on 20 July 2009. [3] On 1 September 2009, the business name was transferred to another company Keytes Real Estate Pty Ltd. That company held a corporate real -- 2 of 6 -- 3 estate licence until 31 May 2010. The sole director of that company was Mr Keyte’s wife. She held a real estate licence until June 2011. [4] The material shows that Mr Keyte: a) Continued to conduct a real estate business even though he was unlicensed. b) Claimed commission on sales when he was not entitled to do so as he was unlicensed. c) Pre-drew the commissions. d) Failed to file any audit reports on the trust account operated by Keyte Realty Pty Ltd. [5] The material also shows that Mr Keyte pleaded guilty in the Magistrates Court at Southport to numerous offences: a) Eleven breaches of s 160(2)(a) of the Act – acting as a real estate agent even though he was unlicensed. b) Eleven breaches of s 581(2) of the Act – borrowing his wife’s real estate licence. c) One breach of s 406(2) of the Act – failing to have his trust account audited within two months of stopping business. [6] I am satisfied that these breaches of the Act establish that Mr Keyte has acted in an unprofessional way in accordance with s 496(1)(g)(iii) of the Act. [7] The Chief Executive has provided a copy of the transcript of the Magistrates Court proceedings in which Mr Keyte, frankly, conceded he had breached the Act. Even though he made that concession, and pleaded guilty, Mr Keyte showed a troubling lack of insight into the consequences of his behaviour. He told the learned Magistrate1: I never intended to do the wrong thing … I would like to mention that I haven’t been charged with doing anything wrong here. [8] Mr Keyte repeated that view later in the hearing2: I didn’t feel I was harming anyone. [9] It is also clear from the transcript that Mr Keyte put his personal interests above his obligations under the Act. When asked whether borrowing his wife’s licence was a deceitful practice, he said3: 1 Transcript page 10, lines 14-17. 2 Transcript page 11, line 49. 3 Transcript page 11, lines 44-45. -- 3 of 6 -- 4 Well, I suppose at the time. It comes across that way but you do what’s necessary to survive, your Honour. [10] The test to determine whether Mr Keyte is a fit and proper person is4: a) That improper conduct has occurred. b) That improper conduct is likely to occur. c) Whether it can be assumed that improper conduct will not occur. d) Whether the general community will have confidence that it will not occur. [11] It is clear that improper conduct has occurred. Given Mr Keyte’s lack of insight, I am satisfied that improper conduct is likely to occur unless disciplinary action is taken and I cannot assume that he will not, in the future, engage in improper conduct. It follows, therefore, that the general community could not have confidence that improper conduct will not occur. [12] I am satisfied that Mr Keyte’s lack of insight, together with his breaches of his obligations, means that he is not a suitable person to hold a licence. I note that the learned Magistrate has expressed a similar view.5 Penalty [13] It follows from my finding that Mr Keyte has acted incompetently or unprofessionally, and that he is not a suitable person to hold a licence, that proper grounds do exist for disciplinary proceedings against him. [14] The Chief Executive submits that the appropriate penalty should be: a) That Mr Keyte is reprimanded. b) That he is prohibited from holding any form of licence or certificate of registration under the Act permanently. c) That he is prohibited from being an executive officer or a corporation which holds any form of licence issued under the Act permanently. d) That he pay a fine of $2,500 on or before 1 October 2012. [15] In support of those submissions, the Chief Executive has referred me to Chief Executive DTFTWID v Irvine D A.6 The case is of limited assistance. [16] It is a very serious matter to exclude a person from a profession permanently. A review of the cases from the former Commercial and Consumer Tribunal shows that this penalty was imposed only in the most serious of cases where, for example, the agent had been convicted of an 4 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. 5 Transcript page 11, line 51. 6 [2005] QCCTPAMD 48. -- 4 of 6 -- 5 indictable offence, where there was evidence of fraud or misappropriation or where there had been significant losses to consumers. [17] Even in cases of lengthy periods of disqualification, the tribunal has identified either a loss to consumers, or some other significant departure from the requisite standards7. [18] In Chief Executive DTFTWID v Byrne8 the agent had acted as an unlicensed agent on two separate occasions, one of which was for a period of over two years. She had also borrowed a licence for a similar period and her activities resulted in claims against the statutory fund in excess of $57,000. Even though she was a restricted letting agent, Ms Byrne also lived away from the premises she was managing for approximately seven months. The tribunal in that case disqualified Ms Byrne permanently. [19] Mr Keyte has not been convicted of an indictable offence. Although he pre- drew commissions, no consumer has suffered any loss. His activities were restricted to a fairly short period in 2010. I am satisfied that Mr Keyte’s position is sufficiently different from that of Ms Byrne that I am not compelled to impose the same penalty of permanent disqualification. [20] I am not persuaded that permanent disqualification is appropriate, nor am I persuaded that a long period of disqualification is necessary. Given Mr Keyte’s age, a long period of disqualification would, effectively be the same as a permanent disqualification. [21] However, I find that Mr Keyte’s breaches of the Act are somewhat more serious than the cases where a disqualification of five years has been imposed. I consider that Mr Keyte should be disqualified for a period of 7 years. [22] As to the penalty of $2,500, I note that Mr Keyte was fined $7,000 by the learned Magistrate. Mr Keyte indicated then that he would be unable to pay that amount. There seems little utility in adding an additional financial burden which is unlikely to be recovered but I accept that the imposition of a fine is part of the regime of deterrence. For that reason, and because the Chief Executive has not pressed for costs, I will impose the requested penalty. Orders [1] Mr Keyte is reprimanded. [2] Mr Keyte is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 for a period of seven years from the date of this decision. 7 See, for example, The Chief Executive, DTFTWID v Rogers, F [2005] QCCTPAMD 35; The Chief Executive, Department Of Tourism, Racing and Fair Trading v Wally Taylor P/L & Taylor, W R & Taylor, M G [2004] QCCTPAMD 2. 8 [2005] QCCTPAMD 8. -- 5 of 6 -- 6 [3] Mr Keyte is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of seven years from the date of this decision. [4] Mr Keyte shall pay to the Chief Executive Department of Justice and Attorney General a fine of $2,250 by 1 October 2012. [5] Mr Keyte may not reapply for a real estate agent’s licence unless and until he has provided the Chief Executive with evidence that he has successfully completed the equivalent of a Certificate IV in Property Services (Real Estate). -- 6 of 6 --