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  4. Valuers Registration Board of Queensland v Donald Evan Gilbert - [2023] QCAT 421

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Valuers Registration Board of Queensland v Donald Evan Gilbert[2023] QCAT 421

Valuers Registration Board of Queensland v Donald Evan Gilbert[2023] QCAT 421

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Valuers Registration Board of Queensland v Donald Evan Gilbert [2023] QCAT 421

PARTIES:

VALUERS REGISTRATION BOARD OF QUEENSLAND

(applicant)

v

DONALD EVAN GILBERT

(respondent)

APPLICATION NO/S:

OCR314-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 October 2023

HEARING DATE:

3 October 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

ORDERS

  1. Mr Gilbert is sanctioned.
  2. Mr Gilbert is fined $6,892.50 (an amount equal to 50 penalty units), payable within three (3) months from the date of the Tribunal’s order.
  3. Mr Gilbert is ordered to give an undertaking not to re-apply for re-registration under the Valuers Registration Act 1992 as a registered valuer or Specialist Retail Valuer for a period of 12 months from the date of these orders.
  4. The Order of the Tribunal dated 2 December 2021 is changed so that publication of the contents of any document or thing filed in or produced by the Tribunal in this matter is prohibited, with the exception of this decision and reasons for the decision.

DIRECTIONS

  1. Any application for costs is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions in support of the application for costs by 4:00pm on 13 November 2023.
  2. If an application for costs is made:
  1. the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions in response to the party making the application for costs by 4:00pm on 27 November 2023;
  2. the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions in reply to the other party by 4:00pm on 5 December 2023;
  3. the application for costs will be determined on the papers on the basis of any documents filed unless a written request for an oral hearing is made to the Tribunal before 5 December 2023;
  1. If no application for costs is made in accordance with these directions, there will be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – VALUERS – where valuer engaged in professional misconduct – where valuer breached an undertaking given to the Tribunal

Valuers Registration Act 1992 (Qld) s 43, s 50, s 59, s 60

Valuers Registration Regulations 2013

QCAT Practice Direction No 4 of 2009.

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Clyne v NSW Bar Association (1960) 104 CLR 186

Gilbert v Valuers Registration Board of Queensland [2016] QCAT 531

Valuers Registration Board of Queensland v Conroy t/as Bevan Conroy & Associates Valuers [2013] QCAT 688

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

BACKGROUND

  1. [1]
    In 2020, Mr Gilbert was engaged to provide submissions on behalf of a lessee who was involved in a dispute in this Tribunal regarding a market rent review for business premises which they leased.
  2. [2]
    On behalf of his client, Mr Gilbert provided submissions and a covering letter dated 1 December 2020. In the letter, he stated that the covering letter pertained to him providing professional advice as a specialist retail valuer.
  3. [3]
    The contents of the covering letter gave rise to a complaint dated 9 March 2021 lodged with the Valuers Registration Board (the Board) by the lessor.[1] The lessor claimed that the letter contained unsubstantiated, inappropriate, defamatory and unbecoming statements in relation to the lessor and its management staff.
  4. [4]
    At the time of the complaint, Mr Gilbert was a valuer registered with the Board, and so his conduct was regulated by the Board in accordance with the provisions of the Valuers Registration Act 1992 (Qld), and subject to the jurisdiction of this Tribunal.[2]
  5. [5]
    The lessor objected to a number of statements made by Mr Gilbert, and in particular:
    1. A claim that his clients had a thriving business “until the landlord seemed to lose all perspective about their responsibility of even basic retail management”;
    2. A person previously involved in the retail precinct “believes that the landlord has completely lost the plot in all aspects, with regard to what was originally envisaged and where it is going on now”;
    3. Referred to another business person as astute and well qualified, stating “one simply needs to contrast that person’s modus operandi with that of the landlord”;
    4. The acts and omissions of the landlord have been ruinous to the tenant’s business, and sales have collapsed so much due to their abject failure to manage;
    5. The landlord made a decision “arbitrarily” which negatively impacted on the lessee’s business;
    6. “There is a long list of casualties of what I suggest is gross managerial incompetence”;
    7. There had been a “complete loss of direction” by the landlord, with “many many victims along the way”;
    8. In the rent dispute, the landlord had done everything in their power to avoid going to determination, and then “went to ground” and treated their long-standing tenant with disrespect;
    9. It certainly appeared that the landlord had “a lot to hide. Their former CEO committed suicide due to pressure which is unfortunate”. The CEO “should have spoken to someone like me. This I understand was hushed up…”;
    10. The precinct he witnessed “with his own eyes”, and from say 2014/2015 seemed to completely lose the plot. They simply chased the rental food dollar (rent), and ignored tenancy mix;
    11. The “dysfunctionality of the precinct”, under current management “ought to dissuade any rational business person from opening up another food shop in the area”;
    12. “It is firmly submitted” that the landlord “did not want this determination to proceed. Then there were other efforts to obfuscate procedural matters and or to bully their long standing tenants”;
    13. A rent subsidy by the landlord “is indicative of the dysfunctionality” of the management and of the site.
  6. [6]
    On 13 May 2021, the Board wrote to Mr Gilbert advising him that a complaint had been made and providing him with an opportunity to respond.
  7. [7]
    By emails dated 13, 17 and 18 May 2021, Mr Gilbert responded to the Board, saying:
    1. He had gleaned the information from dozens of persons he had spoken to, and had witnessed following many years of work and confirmed by his client “as being FACT”. It was for the specialist retail valuer to verify same – he believed they were fact;
    2. The rest of the context of his letter had been ignored;
    3. He stood by his letter / submission, which was “very very well written” and “a “fantastic synopsis of just how Chaotic things are”;
    4. He is doing his job. He is the messenger, not the cause of the landlord’s bad management;
    5. He sits “at the top of tree World-Wide” in his research;
    6. He was brought up in a very very well qualified family whose business interest included some 40 retails and commercial leases (properties) and numerous business models “aka I have lived it and breathed it all my life”;
    7. He is “far more qualified and experienced that the average valuer with a very versatile business, law and economics degree”;
    8. He has commercialised leading edge evaluation methodology (which could become the international standard) of retail leases which have world wide application;
    9. The matter should not have been referred to him by the Board when it is “patently obviously about basic property management 101 issues”.
  8. [8]
    On 14 June 2021, the Board appointed an investigator to investigate the complaint and provide his legal opinion on his findings.[3]
  9. [9]
    The investigator was briefed to consider whether the matters alleged in the complaint amounted to professional misconduct or incompetence or negligence in Mr Gilbert’s performance as a valuer[4]. The investigator was asked to consider the provisions of the API Code of Professional Conduct and Schedule 1 of the Act.
  10. [10]
    On 6 July 2021, the investigator wrote to Mr Gilbert seeking an interview. Mr Gilbert responded “I have done nothing wrong. You can have 15 minutes of my time. And that is it.”
  11. [11]
    On 20 July, the investigator again wrote to Mr Gilbert proposing some meeting times at his office, and seeking 1 – 1.5 hours to conduct an interview. Mr Gilbert responded “I have NOTHING to say to you. The meeting will be in my office. You have 15.0 minutes of my time.”
  12. [12]
    In correspondence with the investigator and the Board on 21 July 2021, Mr Gilbert stated that his letter contained 95 – 99% fact as to what was / is going on at the property with a manager “who has stuffed it up, there have been many business failures, ONE death as a consequence, an obvious cover-up and he is STILL THERE…”. Mr Gilbert stated that the letter contained fact, and “You cannot have a complaint about FACT”, and so this cannot be a valid complaint. 
  13. [13]
    A meeting was ultimately arranged at Mr Gilbert’s office on 26 July 2021. On the day of the meeting, Mr Gilbert advised via email that he was experiencing flu-like symptoms and the meeting was postponed.
  14. [14]
    Mr Gilbert included in his email of 26 July the following statements:

“If you want to know why I write informally (like the last time), well I am NOT taking this seriously. And I seriously do not think I will have as much fun as last time, when I unearthed Breach of Fiduciary Responsibility by … past Chair; where the Board has NOT alternative but to cut his three year appointment to terminating his position in year two! And cut [another person] to threads being a complete goose……but typical Queensland, it will never appear in Official Records. For your record: I briefly glanced at [the landlord’s] assertions (well thru their lawyers), reread my letter, spoke to my client. He and I are on the same page. My letter is 95.0 – 99% accurate AND [LANDLORD] ISSUES HAVE ALREADY BEEN in the Courier Mail! If there was something wrong: halfsmart #business1010 protocol is to set the record straight with a letter in reply…..WHERE IS IT? NOT A ….ing complaint! But they are too scared of me to deal with this face-to-face”.  He continued “…to avoid any attempt by you of turning [the landlord’s] silly assertions into an Admission of Guilt (bad bad #propertymanagement101is all it is and that is why I CC’d them into my letter…).”

  1. [15]
    On 29 July, Mr Gilbert advised that his Covid test had been negative, and requested a copy of the questions which he was to be asked. Mr Gilbert stated that he expected that his response would be one line and “we do not need to meet because this is much ado about nothing”.
  2. [16]
    On the same date, Mr Gilbert wrote to the Board stating “I have never done a damn thing wrong”, and expressing frustration that he has not been listened to. After receiving assurances that the Board was acting as compelled to under the Act, Mr Gilbert agreed to be interviewed. A report was subsequently produced.

THE CODE OF CONDUCT

  1. [17]
    In accordance with s 66 of the Valuers Registration Act 1992 (Qld), and by virtue of s 2(1)(b) of the Valuers Registration Regulation 2013, the API Code of Professional Conduct published by the Australian Property Institute is a prescribed code of conduct for the purposes of the regulation of the valuers profession in accordance with the Act.
  2. [18]
    There is nothing in the Act which limits a consideration of whether professional misconduct has occurred to the provisions of the Code. While a breach of the Code may support a finding of professional misconduct, it is not a necessary precondition of such a finding.

THE INVESTIGATOR’S REPORT

  1. [19]
    On 1 October 2021, the investigator’s report was provided to the Board. It may be summarised as follows:
    1. Both parties participated in the process;
    2. Mr Gilbert had expressed the view that he was not acting as a valuer when he sent the correspondence, as no valuation had been provided, and that he had not breached the Code of Conduct.
    3. Mr Gilbert’s correspondence on 1 December 2020 contained (separately) a valuation report and a covering letter. There have been no complaints raised in relation to the valuation report.
    4. “Professional misconduct” is not defined in the Act or in the Code of Conduct. The relevant test is whether Mr Gilbert has done something which is regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency.[5]
    5. There was no evidence to support Mr Gilbert’s comments about the death of the former CEO of the landlord being due to suicide, let alone any suggestion that even if true, it was “due to pressure” or “was hushed up”. This statement can be properly categorised as disgraceful or dishonourable by his colleagues of good repute and competency. Accordingly, this amounts to professional misconduct within the meaning of s 50 of the Act.
    6. While the landlord claims the other statements made by Mr Gilbert were false, unsubstantiated and / or inappropriate, those statements do not amount to professional misconduct as they do not reach the level of being disgraceful or dishonourable.
    7. The matters alleged in the complaint do not amount to incompetence or negligence in Mr Gilbert’s performance as a valuer and he has not breached the Code of Conduct.
  2. [20]
    On 19 October 2021, the Board wrote to Mr Gilbert advising that:
    1. It had received the investigator’s report;
    2. At a meeting on 12 October 2021, the Board reasonably considered that he had engaged in professional misconduct;[6]
    3. The Board adopted the views of the investigator; and
    4. The Board took into account Mr Gilbert’s past reluctance to engage in the complaints and disciplinary process and the allegations he had made that the Board demonstrate bias against him. The Board also noted Mr Gilbert’s actions during the course of the complaints process included issuing an invoice to the Board for $11,000 “For Stupidity…”. In the circumstances, the Board resolved to refer the matter to QCAT.[7]
  3. [21]
    Mr Gilbert sent a number of emails in response to the Board’s decision. In particular, on 21 October 2021, he indicated that he was not going to accept being repeatedly bullied and was a scapegoat for the Board’s failings. Mr Gilbert described himself as a person with a “highly incisive mind”. He stated “You have wasted 20 plus hrs of my productive time; say another 20 hours of my off time; when I am writing books; have launched the MOST INNOVATIVE SOFTWARE IN THE WORLD; which we are marketing…”
  4. [22]
    In relation to the finding of professional misconduct, Mr Gilbert stated:

“You suggest that my carefully worded assertions about the tragic passing of a former CEO are ill-founded. Does the Board honestly believe I would have sent this letter if I did not believe there were strong grounds for this being a fact… Does the Board NOT believe there was / is not a high to very high degree of probability that these FACTS were FACT?”

  1. [23]
    On 17 November 2021, these Tribunal proceedings were begun when the Board referred the matter to the Tribunal[8]. A subsequent application was filed on 28 April 2022 to amend the charges brought against Mr Gilbert to include his breach of an undertaking previously given to the Tribunal (discussed later in this decision). The amendment was made by the Tribunal in Directions dated 27 September 2022. In this regard, the Tribunal has been provided with a report of a second investigator dated 26 April 2022, who made his findings on the papers without interviewing Mr Gilbert. The investigator considered that Mr Gilbert had in his correspondence breached his undertaking to the Tribunal.
  2. [24]
    On 8 December 2021, Mr Gilbert wrote to the Tribunal, stating that he is a “world leader” in his profession, and that he is doing his job “but there is politics behind this that I picked up at a Christmas Party”. Mr Gilbert alleged that the reason the proceedings are before this Tribunal is that:

“Two of the Board Members… who I had kicked off the Board (for improper conduct) … are actively practicing Restrictive Trade practices, by blocking applications of qualified valuers. I have proof of this; and people will make statements.”

  1. [25]
    On 16 May 2022, Mr Gilbert wrote to the Board advising that his registration as a valuer and Specialist Retail Valuer was withdrawn.

SUBMISSIONS BY THE APPLICANT FILED IN THE TRIBUNAL 19 JANUARY 2023

  1. [26]
    The Tribunal’s jurisdiction is protective, not punitive,[9] even if the outcome of the disciplinary action may be that a great deprivation is experienced by the person disciplined. The protective focus incorporates protection of the public, the maintenance of professional standards, and the protection of the public’s confidence in the profession.
  2. [27]
    Mr Gilbert engaged in conduct which constitutes professional misconduct.
  3. [28]
    While professional misconduct is not defined in the Act, the Tribunal may be assisted by additional context provided under the API Code of Conduct which has force pursuant to s 66 of the Act, and Part 2, section 2 (b) of the Valuers Registration Regulation 2013. The Tribunal must also have regard to the broader common law principles.
  4. [29]
    The comments which gave rise to the complaint are contained in Mr Gilbert’s correspondence wherein he specifically refers to the letter pertaining to “providing professional advice as a Specialist Retail Valuer”.
  5. [30]
    The Tribunal should have regard to the preamble and provisions of the Code of Conduct which state:
    1. The purpose of the Code is to ensure that high standards of corporate and individual behaviour are observed by all Members…A breach of this Code may constitute Professional Misconduct which may be investigated… In order to maintain public confidence in the professional standards of Members of the API it is essential that those Members exhibit, and are seen to exhibit, professional standards in carrying out their duties;
    2. Members must carry out their professional duties ethically, with honesty, competence, and in good faith, without personal bias, and in a manner which upholds the values and reputation of the property and valuation profession;
    3. A Member must not provide any advice or make any statement without reasonable foundation unless it is appropriately qualified or limited.
  6. [31]
    Mr Gilbert’s conduct constitutes a fundamental and repeated derogation from the standards that must properly be expected of members of the profession (and indeed Specialist Retail Valuers, a subset of ordinary members of the profession) by the public, and consistent with the requirements of the Code of Conduct, legislative requirements and standards at common law.
  7. [32]
    Mr Gilbert’s contention that his client had fully vetted his correspondence and so Mr Gilbert himself was not answerable for his actions is directly contrary to the obligations set out in the Code.
  8. [33]
    The Tribunal should also have regard to common law principles in determining whether Mr Gilbert’s conduct amounts to professional misconduct. There are a number of relevant cases setting out the test for professional misconduct at common law:
    1. Has Mr Gilbert done something which would reasonably be regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency.[10]
    2. Does the conduct violate or fall short of, to a substantial degree, the standard of professional conduct observed and approved by members of the profession of good repute and competency.[11]
  9. [34]
    Mr Gilbert’s behaviour is not an isolated incident and he has been subject to disciplinary action following similar behaviour in 2016.[12] If the Tribunal considers his conduct to be a repeated pattern of behaviour, a stronger sanction is appropriate.
  10. [35]
    In considering what sanction is appropriate, the Tribunal should have regard to the following factors:
    1. Fitness to practice;
    2. Maintenance of the reputation of the profession;
    3. Insight and remorse;
    4. General deterrence necessitating the imposition of a preclusion period; and
    5. Case authorities.
  11. [36]
    In relation to fitness to practice:
    1. Persons must be competent and fit to practice as a valuer to be registered; and
    2. These proceedings are protective, and so fitness to practice must be assessed.
  12. [37]
    In relation to maintenance of the reputation of the profession, previous Court decisions relating to professional misconduct of solicitors are relevant. Considerations for the Tribunal include:
    1. The public is protected by ensuring that those unfit to practice do not continue to hold themselves out as fit to practice, and by deterring practitioners from repeating misconduct, and deterring others who might be tempted to fall short of the high standards required of them. The public, and professional colleagues who practise in the public interest, must be able to repose confidence in the professional, so an element of deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with;
    2. The Tribunal should take into account the effect which an order will have on the understanding, in the profession and amongst the public, of the standard of behaviour require; and
    3. The Tribunal must be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of worthiness and reliability for the future.
  13. [38]
    In relation to insight and remorse:
    1. Mr Gilbert demonstrates negligible insight or remorse with respect to his conduct, particularly given the conduct is not an isolated incident, and he has been the subject of previous disciplinary proceedings at the Tribunal;
    2. An unwillingness to acknowledge misconduct establishes a lack of genuine insight into its gravity and significance; and
    3. The absence of remorse and insight are matters relevant to sanction.
  14. [39]
    In relation to general deterrence:
    1. A suspension period should be imposed before Mr Gilbert is eligible to seek re-registration; and
    2. The Tribunal should make an explicit denunciation of Mr Gilbert, and his offending conduct; broadly as it relates to the standards expected of members of the profession, and specifically, as it relates to his professional standing and fitness to practice.
  15. [40]
    In relation to previous disciplinary matters:
    1. Mr Gilbert has previously been the subject of disciplinary action in the Tribunal for conduct of a similar nature. In that instance, he used social media to post content which was “vitriolic and personally directed at various individuals of the Board and individual investigators”. The sanction imposed was a fine, an admonishment, and an undertaken was given by Mr Gilbert;
    2. These circumstances require a more forceful sanction given the repeated nature of the offending, and to reinforce to Mr Gilbert the importance of upholding the standards of the profession and maintain the confidence of the public that the profession will not tolerate its standards being disregarded; and
    3. Mr Gilbert should be ordered to pay costs of the Board. Members of the profession should not have to pay for the costs arising from unprofessional conduct / professional misconduct of Mr Gilbert.

MR GILBERT’S SUBMISSIONS

  1. [41]
    Mr Gilbert’s submissions were confusing and often not relevant to the issue the Tribunal must determine. I note that in his previous disciplinary proceedings, Mr Gilbert’s statements were described as “increasingly vitriolic and personally directed at various individuals”. The same description applies here. I have attempted, in this decision, to capture the essence of Mr Gilbert’s submissions and also to give some examples of his conduct and statements. Doing the best that I can, it seems that his submissions are as follows:
    1. The letter is not part of the valuation, and so the Board has no jurisdiction to deal with the complaint;
    2. Experts and individuals should not be afraid to say what they really believe. This right is protected by the International Covenant of Civil and Political Rights. Their expertise should not be curtailed by anyone, including the government;
    3. He has never shied away from being independent, impartial and objective. Once he has ascertained his position, if bullied he will react and nothing will deter him;
    4. The Board has referred to QCAT a matter…

“which is not even a complaint … 28 / 3665 WORDS of something NOT proven; vetted by my Client [I simply keep repeating this stuff to remind everyone why we are here; it is ALL consequential as to how STUPID this matter is; a huge waste of MY TIME; QCAT’s time]! To make it worse; something yet UNPROVEN; PERHAPS OUR FACTS VETTED BY MY CLIENT are / were right! Note the irony here! And these Rotweilers are allowed to carry on and on and on; making money out of the Public Purse. A matter my own Professional Institute (if in fact our FACTS were wrong) recommend that because it is so miniscule 28 words; yes I am repeating it again because it is NOT A VALID COMPLAINT; IT SHOULD HAVE BEEN STOPPED ON 13.5.2021 of a matter capable of rectification by way of EXCHANGE OF LETTERS! But this Board has carried on and on and on! It is sheer lunacy! What is WRONG with you people? What is WRONG with this Board?”

  1. [42]
    His forensic investigations in around 2014 – 2017 “uncovered a corrupt Board and Chairman”. A number of Specialist Retail Valuers are “blatantly gaming the system including Board Members (several years ago; I do not know who is on it now)”.
  2. [43]
    The Old Boys Club has recruited a person who he…“decimated in 2015 or thereabouts. To then realise he had to have been covering for the then Chairman,,, who I uncovered had abused his position whilst in Office of the Board! A corrupt Board under his watch.”
  3. [44]
    The Board is grossly incompetent in handling any alleged complaint and remain simply bullies. The Board is not investigating the valuers who are incompetent or cheating (which included two Board members). He has previously uncovered a corrupt Board.
  4. [45]
    He seeks payment for his time in this matter and for his company to be repaid for the then corrupt Board’s dealings and incompetence. A strong message needs to be sent regarding bullying, manipulation and control.
  5. [46]
    All material under the hand of the Board is rejected, and any subsequent material is “consequential of Bullying Manipulation Control. Without foundation.”
  6. [47]
    He has never done anything wrong other than uphold the principles of being fiercely independent, impartial and objective as a practicing valuer. No-one has ever bought or owned him.

IS THERE PROFESSIONAL MISCONDUCT

  1. [48]
    The Tribunal has previously accepted[13] that:
    1. a charge of misconduct need not amount to an offence under the law. It is  enough that it amounts to grave impropriety affecting Mr Gilbert’s professional character and is indicative of a failure either to understand or to practise with the precepts of honesty or fair dealing,
    2. in determining whether Mr Gilbert has engaged in professional misconduct, the Tribunal will compare his conduct as a professional to the conduct of his peers. Professional misconduct requires something more than incompetence or negligence. Professional misconduct “includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration.”
    3. a valuer engages in professional misconduct when they deliberately depart from the standards of their profession set out in the Rules (now the Code). This is to protect public confidence in advice given by a professional, which is beyond the skill and knowledge of the public to test.
  2. [49]
    Mr Gilbert prepared a report on behalf of a tenant to assist the Tribunal in the finalisation of a rent dispute. A complaint originated after Mr Gilbert submitted with his valuation report a letter containing irrelevant and scurrilous accusations about the landlord.  In doing so, he failed to meet his obligation to the Tribunal to assist and advise on areas within his area of expertise.[14].
  3. [50]
    When advised of the complaint, Mr Gilbert doubled down on his comments about the landlord, asserted he had done nothing wrong and accused the Board of bullying and incompetence. He did not engage openly and co-operatively with the Board in its management of the complaints process, or with the investigator. Mr Gilbert has never shown any insight into the inappropriateness of his conduct, or remorse for it.
  4. [51]
    It is of great concern to the Tribunal that Mr Gilbert has breached his undertaking given to the Tribunal in 2016 that he would 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.
  5. [52]
    On any of the tests the Tribunal has been referred to, Mr Gilbert’s conduct amounts to professional misconduct. It amounts to grave impropriety, is a deliberate departure from accepted standards, and would be regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency. It does not meet the expected standards of behaviour set out in the Code of Conduct.

WHAT IS THE APPROPRIATE SANCTION?

  1. [53]
    Having found that Mr Gilbert has engaged in professional misconduct, the Tribunal may do one or more of the following:[15]
    1. admonish or reprimand Mr Gilbert;
    2. order Mr Gilbert to give an undertaking to abstain from specified conduct;
    3. order Mr Gilbert to pay to the Board a penalty of an amount equal to not more than 100 penalty units;
    4. order that Mr Gilbert’s registration be suspended for up to 12 months;
    5. order that Mr Gilbert’s registration be cancelled.
  2. [54]
    The Tribunal may order Mr Gilbert to pay to the Board, within a stated time, the costs or part of the costs of and incidental to the proceeding, including the costs or part of the costs of the investigation that led to the proceeding. This may include a direction that Mr Gilbert’s registration is to be suspended for a stated period or cancelled if he fails to pay the penalty or costs within the stated time.
  3. [55]
    Subject to an order made by the Tribunal, the Board may also publish, in the newspaper or on its website, notice of any action taken as above. 
  4. [56]
    The Board seeks the following Orders:
    1. Mr Gilbert is sanctioned.
    2. Mr Gilbert is to give an undertaking not to make statements that:
      1. (i)
        are not supported by the evidence;
      1. (ii)
        may bring the valuation profession into disrepute; or
      1. (iii)
        may be considered in any way disparaging of any third party

when conducting business as a registered valuer in Queensland.

  1. Mr Gilbert is fined $6,892.50 (an amount equal to 50 penalty units), payable within three (3) months from the date of the Tribunal’s order.
  2. Mr Gilbert is to give an undertaking not to re-apply for re-registration under the Valuers Registration Act 1992 as a registered valuer or Specialist Retail Valuer for a period of 12 months from the date of these orders.
  3. Mr Gilbert is to pay the applicant’s costs of and incidental to these proceedings including the costs of the investigation within 28 days of these orders.
  4. Mr Gilbert is to provide a written apology to the lessee.
  1. [57]
    To the extent that the sanctions are designed to protect the public, it is noted that Mr Gilbert is no longer registered, and describes himself in correspondence with the Tribunal as “happily retired”. I am however satisfied that an order which has the effect of preventing Mr Gilbert from reapplying for registration for a further period of 12 months is appropriate.
  2. [58]
    To the extent that the sanctions are designed to act as a deterrent to Mr Gilbert and to other members of the professional community, I am satisfied that the sanctions sought in paragraph [56] (a), and (c) above are appropriate. I have taken into account that this is the second time that the Tribunal has made a finding that Mr Gilbert’s conduct has amounted to professional misconduct.
  3. [59]
    I do not propose to make an order that Mr Gilbert give the undertakings sought by the Board. Mr Gilbert is not conducting business as a registered valuer and describes himself as retired. The undertaking would have no effect unless Mr Gilbert seeks to return to that line of work. Further, I am not satisfied that the order would have any practical effect. Mr Gilbert has shown himself to be unrestrained by the previous undertaking he gave to this Tribunal. Finally, the behaviour described in these proposed undertakings is behaviour expected of a professional person, and required by the Code. An undertaking will provide no further protections.
  4. [60]
    I do not propose to order Mr Gilbert to issue a written apology to the lessee. Mr Gilbert does not accept that he has engaged in professional misconduct. Any such apology would not be genuine or serve any useful purpose.

COSTS

  1. [61]
    The Tribunal made directions on 27 September 2022 that:

In relation to any application for costs, further directions will be issued by the Tribunal following final determination of the application or referral filed on 17 November 2021.

  1. [62]
    Directions will be issued.

NON-PUBLICATION ORDER

  1. [63]
    On 24 November 2021, the Board lodged an application for a non-publication order. The Board raised concerns that Mr Gilbert’s correspondence of 1 December 2020 “contained allegations and statements that are damaging and arguably may have the effect of bringing into disrepute third party organisations through unsubstantiated claims.”
  2. [64]
    The Board referred the Tribunal to s 66 of the Queensland Civil and Administrative Act 2009 (Qld), noting that such an order may only be made if the Tribunal considers it necessary, a “high test”. The Board submitted that the evidence contained material in which Mr Gilbert “referred in a disparaging, offensive and / or unsubstantiated manner to and about third parties” and the interests of justice dictate that a non-publication order be made as the statements have the potential to reflect adversely on those third parties.
  3. [65]
    The Board submitted that a blanket non-publication order should be made in respect of the entirety of the Tribunal’s record (save as was necessary for the parties to progress the matter) on an interim basis until the conclusion of the proceedings “at which time the appropriate terms of any permanent order can be formulated”.
  4. [66]
    On 2 December 2021, the Tribunal made an order that, until further order of the Tribunal, publication of the contents of any document or thing filed in the Tribunal in this matter is prohibited save to the extent necessary for the parties to engage in and progress these proceedings.
  5. [67]
    Unfortunately, there have been no further submissions in relation to the issue of a non-publication order. I note that Mr Gilbert’s name has been published in the Tribunal decision dealing with his previous disciplinary proceedings. There is nothing before me to persuade me that his name should not be published in these reasons, or that I should interfere with the Board’s decision as to whether or not his name is published by them. I am, however, satisfied that the allegations and claims that Mr Gilbert has made in relation to the lessor should not be published in a way that would identify the lessor. I consider that an order is necessary in the interests of justice to avoid the lessor being the subject of any adverse outcomes. I have not identified the lessor in these reasons.
  6. [68]
    I will order that the order of the Tribunal dated 2 December 2021 is changed so that publication of the contents of any document or thing filed in or produced by the Tribunal in this matter is prohibited with the exception of these reasons.

Footnotes

[1]  s 43 Valuers Registration Act 1992 (Qld) (VRA).

[2]  s 50(2) (a) VRA.

[3]  s 44 VRA.

[4]  s 50 VRA.

[5] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

[6]  s 50(1) VRA.

[7]  s 50(2) VRA.

[8]  s 50(2) VRA.

[9] Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Clyne v NSW Bar Association (1960) 104 CLR 186.

[10] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

[11] Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

[12] Gilbert v Valuers Registration Board of Queensland [2016] QCAT 531

[13] Valuers Registration Board of Queensland v Conroy t/as Bevan Conroy & Associates Valuers [2013] QCAT 688.

[14]  QCAT Practice Direction No 4 of 2009.

[15] s 59 VRA.

Close

Editorial Notes

  • Published Case Name:

    Valuers Registration Board of Queensland v Donald Evan Gilbert

  • Shortened Case Name:

    Valuers Registration Board of Queensland v Donald Evan Gilbert

  • MNC:

    [2023] QCAT 421

  • Court:

    QCAT

  • Judge(s):

    Member Goodman

  • Date:

    30 Oct 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Allinson v General Council of Medical Education and Registration (1894) 1 QB 750
3 citations
Jump To
Cite 1 - (1894) 1 QB 750
Cite 2 - (1894) 1 QB 750
Cite 3 - (1894) 1 QB 750
Clyne v NSW Bar Association (1960) 104 CLR 186
2 citations
Jump To
Cite 1 - (1960) 104 CLR 186
Cite 2 - (1960) 104 CLR 186
Donald Evan Gilbert v Valuers Registration Board of Queensland [2016] QCAT 531
2 citations
Jump To
Cite 1 - [2016] QCAT 531
Cite 2 - [2016] QCAT 531
Valuers Registration Board of Queensland v Conroy t/as Bevan Conroy & Associates Valuers [2013] QCAT 688
2 citations
Jump To
Cite 1 - [2013] QCAT 688
Cite 2 - [2013] QCAT 688
Ziems v Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279
2 citations
Jump To
Cite 1 - (1957) 97 CLR 279
Cite 2 - (1957) 97 CLR 279

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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