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Penney-Filippini v Chief Executive, Department of Justice and Attorney-General

 

[2019] QCATA 163

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Penney-Filippini v Chief Executive, Department of Justice and Attorney-General [2019] QCATA 163

PARTIES:

sarah louise penney-filippini

(appellant)

 

v

 

chief executive, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

APL233-18

ORIGINATING

APPLICATION NO/S:

OCR237-14

MATTER TYPE:

Appeals

DELIVERED ON:

9 December 2019

HEARING DATE:

15 August 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe, Presiding

Member Kanowski

ORDERS:

  1. Orders 1 and 2 made by the Tribunal on 7 August 2018 are confirmed save the date 9 February 2020 is substituted for the date 8 October 2018.
  2. The orders made by the Tribunal on 7 August 2018 are otherwise confirmed.

DIRECTIONS:

  1. Any party wishing to pursue a claim for costs must file two copies in the Appeal Tribunal and give a copy to the other party, of submissions in support of the claim, by 4:00pm on 6 January 2020.
  1. If submissions are filed under Direction 1:
    1. (a)
      the other party must file two copies in the Appeal Tribunal and give a copy to the other party of submissions in response by 4:00pm on 20 January 2020;
    2. (b)
      the costs application will then be decided by the Appeal Tribunal on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – GENERALLY – where disqualification sanction imposed in disciplinary proceeding against real estate agent – whether manifestly excessive

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Chandra v Queensland Building and Construction Commission [2017] QCA 4

House v The King (1936) 55 CLR 499

The Chief Executive, Office of Fair Trading, Department of Employment, Economic Development & Innovation v Filippini and Penney also known as Filippini [2009] QCCTPAMD 51

APPEARANCES &

REPRESENTATION:

 

Appellant:

Self-represented

Respondent:

Self-represented by R Vize

REASONS FOR DECISION

Introduction

  1. [1]
    Ms Penney-Filippini is a licensed real estate agent. The Tribunal has made two decisions in a disciplinary proceeding against her. The first was made on 19 July 2016.[1] That decision was that grounds existed for taking disciplinary action against Ms Penney-Filippini, namely:
    1. (a)
      that Ms Penney-Filippini as a licensee had acted in an unprofessional way in 2012 by employing her mother, Ms Heather Filippini, a person whom she knew or ought to have known did not hold a registration certificate as a real estate salesperson, as a real estate salesperson; and
    2. (b)
      Ms Penney-Filippini as a licensee had contravened the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) by failing to meet several requirements relating to her business trust account in 2012 and 2013.
  2. [2]
    The second Tribunal decision, made on 7 August 2018, imposed a disciplinary sanction for the conduct.[2] The orders were:
  1. Sarah Louise Penney-Filippini is disqualified for a period of three years from holding a registration certificate or licence under the Property Occupations Act 2014 (Qld)[3] with effect from 8 October 2018.
  2. Sarah Louise Penney-Filippini must pay a penalty to the Chief Executive in the amount of $3,000 by 8 October 2018.
  3. Each party will bear their own costs of the proceedings.
  1. [3]
    The present proceeding is an appeal by Ms Penney-Filippini against the sanction decision. The orders made on 7 August 2018 have been stayed pending the determination of the appeal.

Grounds of appeal

  1. [4]
    There are five grounds of appeal, as amended in the course of the appeal hearing.
  2. [5]
    The first ground is that the sanction is manifestly excessive in all the circumstances.
  3. [6]
    The second ground is that the Tribunal erred in concluding that a suspended period of disqualification was not a significant penalty and would not properly reflect the seriousness of the offending conduct.
  4. [7]
    The third ground is that at the hearing, the Tribunal was misled as to the effect that a disqualification would have on Ms Penney-Filippini’s ability to continue to operate her business and the effect this would have on her means to earn a living, and that the Tribunal was led into error as a result.
  5. [8]
    The fourth ground is that the Tribunal erred in law in concluding that a reprimand, or a wholly suspended period of disqualification, was inadequate as it would not promote public confidence in the effectiveness of the regulatory system.
  6. [9]
    The fifth ground is that the Tribunal erred in law in concluding that a reprimand, or a wholly suspended period of disqualification, would not properly reflect the seriousness of the conduct, in light of an earlier disciplinary proceeding. (The earlier disciplinary proceeding led to the 2009 Commercial and Consumer Tribunal decision which we will discuss below).

Orders sought

  1. [10]
    Ms Penney-Filippini submits that the Appeal Tribunal should set aside the disqualification order made on 7 August 2018 and substitute a decision that her licence should be disqualified for a period, with the disqualification wholly suspended.
  2. [11]
    The chief executive argues that the appeal should be dismissed and that the sanction decision should be confirmed.
  3. [12]
    Both parties seek orders for costs.

Is leave needed for the appeal?

  1. [13]
    Leave to appeal is not required if the appeal is on a question of law. Leave is required if the appeal is on a question of fact or a question of mixed law and fact.[4]
  2. [14]
    Ms Penney-Filippini indicated in her appeal form that she did not require leave to appeal. However, submissions prepared by counsel on her behalf in April 2019 proceeded on the basis that leave was required. In her oral submissions, Ms Penney-Filippini argued that some aspects of the appeal were on questions of law while others were on questions of fact and law.
  3. [15]
    Submissions made by the chief executive were to the effect that some of the questions were ones of fact while others were ones of law.
  4. [16]
    The grounds of appeal overlap but all amount to a contention that the Tribunal erred in law by imposing a sanction that was excessive in the circumstances where a lesser sanction was appropriate.[5]
  5. [17]
    Accordingly, leave to appeal is not required.

Further background

  1. [18]
    Ms Penney-Filippini became registered as a real estate salesperson in September 2004. She has held real estate licences since February 2007. She currently holds a real estate principal licence.
  2. [19]
    On 29 October 2009 Ms Penney-Filippini was disciplined by the Commercial and Consumer Tribunal.[6] The conduct in question was carrying on business under a licence with someone – her mother, Ms Filippini – who was not a suitable person to hold a licence. Ms Filippini’s licence had been cancelled by the Commercial and Consumer Tribunal in an earlier disciplinary proceeding. The Commercial and Consumer Tribunal in 2009 noted that although Ms Penney-Filippini had become the principal of the real estate business that had formerly been her mother’s after the disqualification, Ms Filippini continued to play an active part in the business. For example, much of the advertising material continued to indicate Ms Filippini’s involvement; Ms Filippini’s trust account continued to be used; and Ms Filippini attended open houses and involved herself in negotiations.
  3. [20]
    The Commercial and Consumer Tribunal commented that the conduct of Ms Filippini and Ms Penney-Filippini (referred to as Heather and Sarah respectively):[7]

… reflected some attempt to limit Heather’s involvement, and that an effort was made, albeit an ineffectual one, to limit her role in the business and increase Sarah’s. What was done however did not even come close to an observance of the tribunal’s order of disqualification.

  1. [21]
    Further:[8]

It seems to me that Heather was having her cake while pretending not to eat it, and … Sarah knowingly co-operated in circumstances where she obtained an increased part of it.

  1. [22]
    The Tribunal regarded the conduct of Ms Filippini and Ms Penney-Filippini in allowing Ms Filippini to remain so involved in the business as reckless.[9] Ms Filippini’s counsel said that Ms Filippini would dissociate herself from ‘any open houses or intentional client contact for the duration of her disqualification’.[10] The Commercial and Consumer Tribunal, however, regarded Ms Filippini’s apparent intention to remain associated with the business as ‘fraught with risk’.[11]
  2. [23]
    The Commercial and Consumer Tribunal commented that Ms Penney-Filippini’s conduct ‘was serious enough to call for serious consideration of an order for disqualification for a period’, but the chief executive had not sought disqualification. The Commercial and Consumer Tribunal decided to reprimand Ms Penney-Filippini and to require her to pay a fine of $6,000.
  3. [24]
    In the same proceeding, the Commercial and Consumer Tribunal permanently disqualified Ms Filippini from holding a real estate licence or registration certificate.
  4. [25]
    The second disciplinary action against Ms Penney-Filippini, which has ultimately led to this appeal, commenced in October 2014. As we have mentioned, two grounds for disciplinary action were found to exist: one related to employing Ms Filippini, and the other related to the trust account. The Tribunal regarded the trust account breaches as the less serious aspect, and it is convenient to give some details of those first. The Tribunal found:
    1. (a)
      Ms Penney-Filippini failed to comply with a requirement to file her 2011/2012 trust account audit with the Office of Fair Trading by 28 February 2013 – the audit was completed and filed only in January 2014;
    2. (b)
      as two receipts for the 2011/2012 period were missing, Ms Penney-Filippini failed to comply with a requirement to keep all receipts;
    3. (c)
      on a large number of receipts for 2011/2012 and 2012/2013, the year was missing, and so Ms Penney-Filippini failed to fully comply with a requirement for receipts to show the date;
    4. (d)
      as four of the duplicate receipts for 2011/2012, and three of the duplicate receipts for 2012/2013 were unsigned, Ms Penney-Filippini failed to meet a requirement for receipts to bear a signature; and
    5. (e)
      end-of-month reconciliations of bank statement balances and trust account cash book balances were out by 10 or 11 cents for the months January 2013 to September 2013, so Ms Penney-Filippini failed to comply with a requirement to reconcile.
  5. [26]
    The Tribunal accepted that most of the trust account breaches were ‘relatively minor’,[12] and indicated that the fine of $3,000 related to the trust account breaches.[13]
  6. [27]
    It can therefore be inferred that the three year disqualification order resulted from the other conduct: Ms Penney-Filippini employing her mother, Ms Filippini. The particulars may be summarised as follows. Ms Filippini attended four open home events arranged by Ms Penney-Filippini’s firm in July 2012 and engaged in real estate negotiations with some of the prospective purchasers (one couple and another person). Ms Filippini also participated in follow-up real estate negotiations with the couple some days later. On an occasion in October 2012, one of the July 2012 prospective purchasers attended Ms Penney-Filippini’s agency, and Ms Filippini engaged in real estate negotiations with him.
  7. [28]
    The Tribunal commented that it may have been that, at times, Ms Filippini attended or involved herself in Ms Penney-Filippini’s business without specific invitation. However, the Tribunal did not consider that an invitation was necessary: acquiescence in Ms Filippini’s involvement was sufficient. Similarly, the lack of a formal engagement of Ms Filippini, and the fact that not all of her negotiations were successful, were immaterial. The Tribunal found that Ms Penney-Filippini had financially benefitted from Ms Filippini’s involvement in the sale of a property to the couple.

First ground of appeal

  1. [29]
    The first ground is that the sanction imposed by the Tribunal is manifestly excessive.
  2. [30]
    Ms Penney-Filippini submits, in summary, that:
    1. (a)
      the sanction imposed by the Tribunal is wholly disproportionate to her conduct, considering the circumstances including that:
      1. the conduct did not involve dishonesty;
      2. it occurred on isolated occasions;
      3. it appears that the discussions by Ms Filippini with the prospective purchasers ‘were largely casual, ad hoc and impromptu’[14] rather than the result of any encouragement by Ms Penney-Filippini;
      4. it involved acquiescence, and misunderstanding on the part of Ms Penney-Filippini, rather than any deliberate flouting of obligations;
      5. there was no evidence that Ms Filippini had induced the purchase that was made by the couple; and
      6. no loss was suffered by the purchasers or potential purchaser;
    2. (b)
      Ms Penney-Filippini was cooperative in the investigation;
    3. (c)
      a lengthy period had since elapsed without any further improper conduct on the part of Ms Penney-Filippini or any complaint about her;
    4. (d)
      a broad range of sanctions was available to the Tribunal;
    5. (e)
      disqualification for three years is not necessary to protect the public;
    6. (f)
      it was a ‘drastic step-up’ from the earlier sanction;
    7. (g)
      disqualification for three years is a sanction more directed at punishment than public protection;
    8. (h)
      it amounts, in effect, almost to a permanent exclusion, because of the difficulties of returning to the industry after such a period of disqualification; and
    9. (i)
      while she has a law degree, and may have transferable skills, she does not have a practising certificate to practise law and may be precluded from obtaining one as a result of the disciplinary orders.
  3. [31]
    Many of these matters were, of course, pressed in submissions at first instance. 
  4. [32]
    Ms Penney-Filippini also notes that her material and submissions that were before the Tribunal showed that she undertook not to permit her mother to attend open houses or conduct any business on behalf of the firm; that she had attended various professional development courses and was committed to ongoing professional development; and that disqualification would result in the closure of the business and job losses for six employees.
  5. [33]
    We note that the Tribunal gave detailed reasons for its decision, and had previously given detailed reasons for finding that disciplinary grounds existed. It is apparent that the Tribunal carefully considered the evidence and submissions before it. These included submissions about the steps Ms Penney-Filippini had made and was prepared to make to avoid any further infringements, and about the impact disqualification would have on her livelihood and that of her employees. The Tribunal took into account a range of aggravating and mitigating factors. The Tribunal quoted at some length from Ms Penney-Filippini’s affidavit, and referred in detail to other evidence and to submissions advanced on her behalf.
  6. [34]
    The Tribunal also set out in full section 529 of PAMDA, which is the section listing the available sanctions. The available sanctions include reprimand, fine, compensation, suspension of licence, cancellation of licence, disqualification from holding a licence (permanently or for a period), imposing conditions on a licence, and ‘another order the tribunal considers appropriate to ensure the person complies with this Act’.
  7. [35]
    The Tribunal discussed in detail the parties’ submissions as to what the appropriate sanction would be. These included submissions on reprimand, fine, disqualification, suspended disqualification, and conditions that might be imposed on the licence. The Tribunal also mentioned the option to suspend the licence, even though this was not a sanction urged by either party. The Tribunal noted the submission made for Ms Penney-Filippini that disqualification would be ‘superfluous to achieving the Act’s objectives’.[15]
  8. [36]
    The Tribunal discussed the need to protect the public from contravening conduct by real estate agents.
  9. [37]
    The Tribunal also discussed the sanctions imposed in three cases cited by the parties.
  10. [38]
    One was The Chief Executive, DTFTWID v Cumerford,[16] where a $1,500 fine had been imposed on an agent who had filed an audit late, failed to pay two rental bonds to the Residential Tenancies Authority, and falsely told a lessor that he had applied to Residential Tenancies Authority for bond monies.
  11. [39]
    In Ms Penney-Filippini’s case, the Tribunal noted a submission made by the chief executive that the amount of the fine in the Cumerford case reflected that age of that decision. 
  12. [40]
    Another case considered by the Tribunal was Chief Executive, Department of Justice and Attorney-General v Smart Real Estate (Qld) Pty Ltd and Anor.[17] In that case, a real estate agent had improperly made 13 withdrawals from the business trust account. The amount withdrawn totalled almost $28,000. The Tribunal found that the agent was an astute business person whose actions were deliberate. In the absence of mitigating factors, the Tribunal would have disqualified him without suspending the disqualification. However, in view of factors such as the agent’s relative youth, cooperation and retraining, and the financial implications of disqualification on the agent including likely loss in the value of the business, the Tribunal decided that a less severe sanction was appropriate. The Tribunal reprimanded the agent, fined him $5,000, ordered him to pay almost $400 in compensation, and disqualified him for five years but suspended the disqualification for five years on conditions. The Tribunal also made some similar orders against the company that the agent controlled.
  13. [41]
    In Ms Penney-Filippini’s case, the Tribunal did not consider that the Smart case was comparable for two reasons. First, the Tribunal considered there was a higher degree of cooperation in the Smart case. Second, Ms Penney-Filippini had previously been disciplined.
  14. [42]
    A third case considered by the Tribunal was Porter v Department of Finance and Services.[18] In that case, a real estate agent contravened a number of legislative requirements, including by employing her mother who was a disqualified person. The New South Wales Civil and Administrative Tribunal found that this breach was not intentional, as the agent mistakenly believed she could employ a disqualified person in an administrative capacity. The sanction imposed was a caution for all of the contraventions.
  15. [43]
    In Ms Penney-Filippini’s case, the Tribunal noted that it did not appear that the agent in Porter had any prior disciplinary history.
  16. [44]
    The Tribunal commented that it could take some guidance from the cited cases, but ‘there does not appear to be any clear comparable decision in relation to the appropriate sanction’.[19]  In the appeal, no other cases have been identified that might be more analogous.
  17. [45]
    The Tribunal said that after taking into account the public and private interests involved, it had concluded that a three year period of disqualification was the appropriate sanction. The Tribunal said that despite the length of time since the conduct, the absence of further transgressions, and Ms Penney-Filippini’s remorse and other personal circumstances, a reprimand or wholly suspended period of disqualification would not properly reflect the seriousness of the conduct. Further, the Tribunal said that it did not consider that a reprimand or a wholly suspended period of disqualification would promote public confidence in the effectiveness of the regulatory system.
  18. [46]
    In imposing sanction, the Tribunal was exercising a discretionary power.
  19. [47]
    The proper approach in appeals against discretionary orders was explained by the High Court in House v The King.[20] Three of the judges observed:[21]

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion … In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

  1. [48]
    We are not satisfied that the Tribunal made any error in exercising the discretion it was required to exercise. It took into account the relevant matters. It considered whether lesser sanctions would be adequate. It also considered whether a heavier sanction was required. It decided against imposing a heavier sanction urged by the chief executive.
  2. [49]
    There were no closely comparable cases, but the Tribunal had regard to the cases that were cited. The Tribunal properly took into account the fact that the agents in those cases had not previously been disciplined.
  3. [50]
    The Tribunal did not express itself as having the role of punishing Ms Penney-Filippini, and we do not discern anything in the Tribunal’s reasons to suggest that it saw its role as punitive.
  4. [51]
    The sanction imposed was substantial, but it was not so severe that it can be regarded as lying outside the acceptable range. It was not manifestly excessive or plainly unjust. A range of sanctions was available. The 2009 decision had not effectively deterred later conduct by Ms Penney-Filippini of a similar nature to some of the earlier conduct. It is not remarkable that the Tribunal concluded that a strong disciplinary response was required despite the mitigating factors. 
  5. [52]
    The first ground of appeal is not established.

Second ground of appeal

  1. [53]
    The second ground is that the Tribunal erred in concluding that a suspended period of disqualification was not a significant penalty and would not properly reflect the seriousness of the offending conduct.
  2. [54]
    A suspended period of disqualification would typically operate such that Ms Penney-Filippini could continue to hold her licence unless a triggering event happened, such as a further disciplinary breach, within a specified period.
  3. [55]
    In her appeal form, Ms Penney-Filippini referred to paragraph 77 of the Tribunal’s reasons as the relevant passage. In that paragraph the Tribunal said:

… I do not consider that a reprimand or wholly suspending any period of disqualification would properly reflect the seriousness of the conduct, in light of the earlier proceedings in the CCT and that she was the operator of the business. …

  1. [56]
    The Tribunal did not say that a suspended period of disqualification was not a significant penalty.
  2. [57]
    We should add that the chief executive submits that a suspended period of disqualification was not an available order under section 529 of PAMDA. However, it is not necessary for us to decide that question. The Tribunal proceeded on the basis that it was an available option.
  3. [58]
    The Tribunal did consider whether a suspended period of disqualification would be an adequate sanction. Its conclusion that it would not be was a matter of discretionary judgment. The Tribunal’s conclusion was reasonably open. There is no basis for us to disturb it.
  4. [59]
    The second ground of appeal is not established.

Third ground of appeal

  1. [60]
    The third ground is that at the hearing, the Tribunal was misled as to the effect that a disqualification would have on Ms Penney-Filippini’s ability to continue to operate her business and the effect this would have on her means to earn a living, and that the Tribunal was led into error as a result.
  2. [61]
    Ms Penney-Filippini has explained that this relates to certain submissions made on behalf of the chief executive at the disciplinary hearing. These submissions were summarised by the Tribunal as follows:[22]

The [chief executive] further submitted that Ms Penney-Filippini’s business could continue to operate during the term of any disqualification because a locum could be engaged. She is able to own the business but cannot work as a salesperson. This is disputed by [Ms Penney-Filippini].

  1. [62]
    In the appeal, Ms Penney-Filippini submits that the submissions made on behalf of the chief executive were incorrect, in light of advice she has since obtained.
  2. [63]
    It is not necessary for us to decide whether the submissions were correct or not. The Tribunal when imposing the sanction did not proceed on the basis that Ms Penney-Filippini would be able to continue to own the business. Rather, it commented:[23]

There is dispute about whether Ms Penney-Filippini can continue to own the business during the period of her disqualification but I accept that her disqualification and inability to work as a salesperson in the business will impact on the operations of her business and there will be adverse flow on consequences for her currently employed staff members as well as for her own financial obligations. Against that I have weighed that she has a range of transferable skills and a law degree.

  1. [64]
    It is apparent that the Tribunal did not make, or consider it necessary to make, a firm finding on whether Ms Penney-Filippini could continue to own the business. We do not consider that a firm finding on the question was required. It was sufficient for the Tribunal to proceed, as it did, on the basis that disqualification may prevent Ms Penney-Filippini from continuing to own the business. We are therefore satisfied that the Tribunal was not led into error by the submissions on behalf of the chief executive.
  2. [65]
    The third ground of appeal is not established.

Fourth ground of appeal

  1. [66]
    The fourth ground is that the Tribunal erred in law in concluding that a reprimand, or a wholly suspended period of disqualification, was inadequate as it would not promote public confidence in the effectiveness of the regulatory system.
  2. [67]
    Consistent with the reasoning of the Court of Appeal in Chandra v Queensland Building and Construction Commission,[24] it was incumbent on the Tribunal to consider whether lesser sanctions would be sufficient to meet the purposes of the disciplinary system. The Tribunal did so.
  3. [68]
    The Tribunal’s conclusion that particular sanctions would be inadequate to promote public confidence involved a discretionary judgment. The Tribunal was not affected by irrelevant considerations or other errors. Its conclusion was one that was reasonably open. There is no basis for the Appeal Tribunal to interfere with that exercise of discretion.
  4. [69]
    The fourth ground of appeal is not established.

Fifth ground of appeal

  1. [70]
    The fifth ground is that the Tribunal erred in law in concluding that a reprimand, or a wholly suspended period of disqualification, would not properly reflect the seriousness of the conduct, in light of an earlier disciplinary proceeding.
  2. [71]
    This ground replicates the second ground but with particular reference to the 2009 Commercial and Consumer Tribunal decision.
  3. [72]
    In its reasons for imposing sanction in the present matter, the Tribunal discussed the Commercial and Consumer Tribunal decision at length.
  4. [73]
    Ms Penney-Filippini submits that the Tribunal erred in relying on the 2009 penalty in isolation without having due regard for all of the facts, matters and circumstances.[25]
  5. [74]
    Ms Penney-Filippini emphasises that the Commercial and Consumer Tribunal had found that no dishonesty was involved. No loss was caused to any member of the public. The Commercial and Consumer Tribunal accepted that some leading came from Ms Filippini and that some degree of influence was exerted by Ms Filippini on Ms Penney-Filippini. It also found that Ms Penney-Filippini and her mother had made an effort, albeit ineffectual, to limit Ms Filippini’s role in the business.
  6. [75]
    The reasons of the Commercial and Consumer Tribunal show that it had only limited information before it. Ms Penney-Filippini submits that additional background facts about the conduct, set out in the material that was before the Tribunal in 2018, are relevant. These include facts about her youth and inexperience; inadequate time for Ms Penney-Filippini and her mother to attend to all the steps involved in handing over the business from mother to daughter; that Ms Penney-Filippini was grieving the loss of her mother’s partner who had died suddenly just a few months before the handover; and her cooperation in the investigation.
  7. [76]
    In the 2018 decision, the Tribunal noted that it accepted that the Commercial and Consumer Tribunal did not have all of the relevant personal circumstances before it, in particular that Ms Penney-Filippini had taken over the business ‘in somewhat tragic and distressing circumstances, having not had prior experience in carrying on a business herself’.[26] The Tribunal then added that this did not explain why similar conduct occurred some three years later, in 2012.
  8. [77]
    We are not persuaded that the Tribunal had regard to the 2009 Commercial and Consumer Tribunal decision without also taking into account the additional surrounding circumstances addressed by Ms Penney-Filippini in her material.
  9. [78]
    For the reasons already explained, we consider that the sanction imposed by the Tribunal was reasonably open to it in all of the circumstances including the disciplinary history. As the decision was reasonably open, and not affected by error such as the taking into account of irrelevant considerations, there is no basis for the Appeal Tribunal to set it aside.
  10. [79]
    The fifth ground of appeal is not established.

Appropriate outcome of the appeal

  1. [80]
    Section 146 of the QCAT Act allows the Appeal Tribunal various options. In this case, the appropriate option is to confirm the orders made on 7 August 2018, subject to amending the date from 8 October 2018 to 9 February 2020. This will allow Ms Penney-Filippini and her staff approximately two months to get their financial affairs in order before the disqualification takes effect.

Costs

  1. [81]
    The parties in their submissions indicated that they seek costs. In case a party wishes to pursue a costs order, we will set a timetable for the making of submissions followed by a decision on the papers.

Conclusion

  1. [82]
    Ms Penney-Filippini has not demonstrated error in the decision of the Tribunal. Accordingly, we confirm the orders apart from amending the date of effect of the disqualification and the date by which the fine must be paid.

Footnotes

[1]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2016] QCAT 253.

[2]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2018] QCAT 262.

[3]This Act replaced PAMDA after the disciplinary proceeding was started.

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142.

[5]Chandra v Queensland Building and Construction Commission [2017] QCA 4, [21]-[22].

[6]The Chief Executive, Office of Fair Trading, Department of Employment, Economic Development & Innovation v Filippini and Penney also known as Filippini [2009] QCCTPAMD 51.

[7]  Ibid [19].

[8]  Ibid [42].

[9]  Ibid [52].

[10]  Ibid [50].

[11]  Ibid.

[12]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2018] QCAT 262, [78].

[13]  Ibid.

[14]  Written submissions for Ms Penney-Filippini dated 10 April 2019, [66(m)].

[15]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2018] QCAT 262, [19].

[16]  [2005] QCCTPAMD 14.

[17]  [2013] QCAT 58.

[18]  [2014] NSWCATOD 93.

[19]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2018] QCAT 262, [76].

[20]  (1936) 55 CLR 499.

[21]  Ibid 504-505.

[22]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2018] QCAT 262, [31].

[23]  Ibid [57].

[24][2017] QCA 4.

[25]  Written submissions for Ms Penney-Filippini dated 10 April 2019, [65].

[26]Chief Executive, Department of Justice and Attorney-General v Penney-Filippini [2018] QCAT 262, [50].

Close

Editorial Notes

  • Published Case Name:

    Penney-Filippini v Chief Executive, Department of Justice and Attorney-General

  • Shortened Case Name:

    Penney-Filippini v Chief Executive, Department of Justice and Attorney-General

  • MNC:

    [2019] QCATA 163

  • Court:

    QCATA

  • Judge(s):

    Howe, Kanowski

  • Date:

    09 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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