Donald Evan Gilbert v Valuers Registration Board of Queensland
[2016] QCAT 531
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- Unreported Judgment
- Donald Evan Gilbert v Valuers Registration Board of Queensland[2016] QCAT 531
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Donald Evan Gilbert v Valuers Registration Board of Queensland[2016] QCAT 531
Donald Evan Gilbert v Valuers Registration Board of Queensland[2016] QCAT 531
CITATION: | Gilbert v Valuers Registration Board of Queensland [2016] QCAT 531 |
PARTIES: | Valuers Registration Board of Queensland (Applicant) |
| v |
| Donald Evan Gilbert (Respondent) |
APPLICATION NUMBER: | OCR115-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 22 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
It is further noted by the Tribunal:
|
CATCHWORDS: | PROFESSIONS AND TRADES – VALUERS – Where the Valuers Registration Board brought disciplinary proceedings against a valuer – Where the allegations arose out of correspondence between the valuer and the Board – Whether the conduct was unprofessional conduct
Valuers Registration Act 1992 (Qld), s 50, 59 API Code of Professional Conduct, clauses 1.1, 4.1, 4.2, 4.3 PINZ Code of Ethics and Rules of Conduct/NZIV Code of Ethics, clauses 1.1, 1.6, 1.7, and 6.2, Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148; Re: Veron (1966) 84 WN (Part 1) (NSW) 136; Ex parte Attorney- General (Cth): Re A Barrister and Solicitor (1972) 20 F.L.R 234 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
|
APPEARANCES
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]If the Valuers Registration Board of Queensland reasonably considers that a valuer has engaged in professional misconduct in the person’s performance as a valuer, the Board may refer the matter to QCAT to decide whether disciplinary action should be taken.[1]
- [2]The Valuers Registration Board of Queensland has taken this step, referring disciplinary proceedings against Donald Evan Gilbert to this Tribunal.
- [3]The Board alleges that Mr Gilbert has behaved in ways that constitute “professional misconduct” under sections 50, 52 and 59 of the Valuers Registration Act (Qld) 1992.
- [4]The behaviour complained of arises from correspondence between Mr Gilbert and the Board from about 4 August 2014 to about June of 2015 and includes postings by Mr Gilbert on the social media website “LinkedIn”.
- [5]In this period, Mr Gilbert also took his complaints to the wider community. He either copied his Board communications or wrote directly to many outside bodies concerning his mounting frustration with the Board. These communications included many government bodies, members of parliament at all levels, this Tribunal and the Ombudsman.
- [6]As time went on, Mr Gilbert’s correspondence became increasingly vitriolic and personally directed at various individuals of the Board and individual investigators.
- [7]The origin of the dispute between Mr Gilbert and the Board is not specifically disclosed in the material, but seems to stem from a previous action by the Board concerning an earlier complaint made to it about Mr Gilbert.
- [8]In all, there are 35 allegations of professional misconduct made by the Board against Mr Gilbert.
- [9]Section 59 of the Valuers Act sets out the powers of QCAT if it finds that a registered valuer has engaged in professional misconduct, incompetence or negligence. QCAT may admonish or reprimand the valuer; order an undertaking to abstain from a specified conduct; order a penalty to be paid to the Board; or suspend or cancel the valuer’s registration. As well as a penalty, QCAT may order costs as to the investigation and the proceeding.
- [10]The Board filed evidence from Ms Julia French, the Secretary to the Board and a detailed investigation report from Ms Cheryl-Anne Laird.
- [11]Mr Gilbert filed no evidence.
The meaning of “professional misconduct” in this context
- [12]Although the term “professional misconduct” appears in Valuers Act, it is not defined in that Act and reference must therefore be had to how professional misconduct is explained and defined by the common law.
- [13]To assist the Tribunal, the Board made a number of submissions on the meaning of “professional misconduct” under the general law. In particular in relation to this matter, the Board submitted:
- actions which may be characterised as professional misconduct are not limited to actions in the pursuit of a person’s profession, in this case the profession of valuation. Professional misconduct warranting disciplinary action up to and including the cancellation of registration may arise in the context of personal conduct which is not in pursuit of the work of a registered valuer;[2]
- the test established in Allinson in 1894 remains good law today and has been expressly and implicitly approved of and applied in many decisions. In Allinson, Lopes L. J. expressed the test in this way:
“If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect... I do not propound it as an exhaustive definition; but I think it is strictly and properly applicable in the present case.[3]
Joint Statement of Agreed Facts and Sanction
- [14]On 28 October 2016, after a lengthy conciliation conference, the Board and Mr Gilbert filed a joint statement of agreed facts and sanction. This statement said as follows:
THE PARTIES AGREE THAT:
- Donald Evan Gilbert admits the allegations in the Application or referral – disciplinary proceeding filed by the Valuers Registration Board of Queensland on 2 August 2016 and concedes a finding of professional misconduct.
- The appropriate sanctions for the finding of professional misconduct are that:
- (a)Donald Evan Gilbert be admonished;
- (b)Donald Evan Gilbert give an undertaking to abstain from making any negative or disparaging comment to any person at any time about the Board, and any past and present Members of the Board, Assistant Members of the Board, the Secretary to the Board, employees of the Board, and Investigators authorised to conduct investigations by the Board;
- (c)Donald Evan Gilbert pay to the Board the sum of $5,500.00, being the amount equal to 50 penalty units within six (6) months from the date of the Tribunal’s Orders;
- (d)If the sum of $5,500.00 is not paid in full within ten (10) days beyond the date it is due (unless because of some unforeseen event beyond Donald Evan Gilbert’s control, the onus of proof of which will lie on Donald Evan Gilbert, and which he must raise and establish to the Board’s satisfaction within ten (10) days after the due date), Donald Evan Gilbert’s registration will be automatically cancelled.
- The parties do not seek to file any further material or submissions with the Tribunal.
Discussion
- [15]Mr Gilbert admits the allegations of the Board and accepts that a finding of professional misconduct against him is appropriate.
- [16]I have reviewed the investigation report from Ms Cheryl-Anne Laird. It details each allegation. There is no contrary evidence filed by Mr Gilbert.
- [17]Simply put, Mr Gilbert had some criticism to make of the Board that he was entitled to make. The way he went about it was however, not respectful and belittled himself and others. This correspondence with the Board and other agencies, in the main, does him little credit.
- [18]I am satisfied, having regard to the evidence contained in the investigation report, that Mr Gilbert’s conduct overall does amount to professional misconduct, applying the common law tests as set out above and for the purposes of the Valuers Registration Act (Qld) 1992.
- [19]Considering Mr Gilbert’s acceptance of this decision as evidenced by the joint statement signed by him, I find that grounds exist to discipline Mr Gilbert for behaviour that constitutes professional misconduct.
- [20]The investigation report may also give the Board reason to pause and reflect on the overall way this matter was handled and whether, with hindsight, there may have been other ways to respond to Mr Gilbert’s views.
- [21]In the conduct of this matter before this Tribunal, I must acknowledge the contribution of Member Hughes in assisting the parties to reach a joint statement of agreed facts and sanction. An examination of the registry record discloses that the conciliation conference conducted by Member Hughes in this matter extended for a whole day and ultimately resulted in the production of the joint statement currently placed before this tribunal.
- [22]Considering, as I have, the voluminous material filed and the high degree of emotional investment by all parties in the outcome of this matter, it is finally a credit to the parties that with the assistance of the learned member, they were able in confidential surroundings, to reach a joint resolve.
Penalty
- [23]As stated above, section 59 of the Act provides that, as this Tribunal has found that Mr Gilbert has engaged in professional misconduct, I may do one or more of the following: admonish or reprimand; order Mr Gilbert to give an undertaking to abstain from specified conduct; order Mr Gilbert to pay to the board a penalty of an amount equal to not more than 100 penalty units; order Mr Gilbert’s registration be suspended for up to 12 months; or order that his registration be cancelled.
- [24]In the joint submissions, the Board and Mr Gilbert suggest what both parties agree are appropriate sanctions against Mr Gilbert. Mr Gilbert accepts these sanctions.
- [25]The Board submitted no comparators.
- [26]In the QCAT decision Valuers Registration Board of Queensland v Mr Phillip Peterson t/a Peterson Valuation Services,[4] the learned member commented when discussing penalty that submissions in that matter suggested there are no comparable decisions which would assist the tribunal in that matter. The learned member commented there are few authorities in other jurisdictions with respect to disciplinary proceedings involving valuers, and that matter was the first application that had proceeded to a contested application in QCAT, setting an initial benchmark or tariff for such a proceeding.[5]
- [27]A relevant matter as to penalty considered in that matter was the effect that the actions of the valuer had, and the extent of harm caused to third persons.
- [28]In this matter, the people harmed by Mr Gilbert’s actions were the Board and its designated investigators, unidentified members of his profession and himself. I do not consider him a substantial risk to the public.
- [29]I have no evidence from Mr Gilbert as to his financial circumstances other than to note he has agreed to the penalty as outlined in the joint statement.
- [30]Having considered all of these matters, I am satisfied that a suspension is not warranted in these circumstances and that the proposal of the parties that Mr Gilbert be admonished is appropriate.
- [31]I am also satisfied – given the imprudence and vitriol of Mr Gilbert’s correspondence – that a monetary penalty is appropriate. The Peterson decision set the benchmark at $15,000.00. In that matter, the valuer was reprimanded and the conduct went to his skills as a valuer. There are different circumstances for Mr Gilbert. His transgressions are, in my view, a lesser charge and should therefore attract a smaller penalty.
- [32]I am satisfied the number of penalty points proposed by the joint statement is appropriate in these circumstances and I will make that order. I am also satisfied that consequences should be imposed if the amount is not paid and will make an order similar to that proposed by the joint statement.
- [33]Overall, I am satisfied with the consequential order proposed by the parties. However, I am of the view as this is an order of this tribunal, if Mr Gilbert does not pay the amount ordered within the time specified and seeks an extension of time, the matter should return to this tribunal not to the Board for further consideration. I will make that variation to the orders proposed by the parties.
- [34]I am satisfied that a disciplinary ground is established and make the following orders:
- Donald Evan Gilbert is admonished;
- Donald Evan Gilbert pay to the Board the sum of $5,500.00, being the amount equal to 50 penalty units within six (6) months from the date of these Orders;
- If the sum of $5,500.00 is not paid in full within ten (10) days beyond the date it is due (unless because of some unforeseen event beyond Donald Evan Gilbert’s control, the onus of proof of which will lie on Donald Evan Gilbert, and which he must raise and establish to the Tribunal’s satisfaction within ten (10) days after the due date), Donald Evan Gilbert’s registration will be automatically cancelled.
It is further noted by the Tribunal:
- Donald Evan Gilbert gives an undertaking to the Tribunal to abstain from making any negative or disparaging comment to any person at any time about the Board, and any past and present Members of the Board, Assistant Members of the Board, the Secretary to the Board, employees of the Board, and Investigators authorised to conduct investigations by the Board.
Footnotes
[1] Valuers Registration Act 1992 (Qld), s 50.
[2] Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148; Re: Veron (1966) 84 WN (Part 1) (NSW) 136; Ex parte Attorney- General (Cth): Re A Barrister and Solicitor (1972) 20 F.L.R 234.
[3] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763.
[4] [2014] QCAT 565.
[5] Ibid, at para [88].