It is accepted by both counsel for the Board and the agent that the Tribunal has the power under the REBA Act to impose a fine in respect of each of the separate allegations or findings of misconduct (disciplinary offences) made against the agent, and that the Tribunal is not limited to imposing a single 'global' fine in respect of the first set of allegations in respect of the Devine transaction and a single or 'global' fine in respect of the second set of disciplinary offence allegations in respect of the Flynn transaction. The Tribunal considers this to be correct.
The issue as to whether or not the Tribunal would commit an error in imposing a single penalty for a number of offences, rather than separate and discrete penalties for each offence, was mentioned in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 (Paridis). Buss JA (with whom Wheeler JA and Pullin JA agreed) questioned whether it would be an error for the Tribunal to impose a 'global order' instead of separate and discrete penalties for each offence, in exercising its disciplinary powers under s 84(1) of the Settlement Agent's Act 1981 (WA). That provision is in identical or quite similar terms to s 103 of the REBA Act.
While not finding it necessary to resolve the issue in that case, Buss JA, at [22], noted the observations of Owen J in Jemielita v the Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) (Jemielita) at 137 140, in the context of s 13 of the Medical Act 1984 (WA), and the approach of the Tribunal in Settlement Agents Supervisory Board and Strand Settlements Pty Ltd [2005] WASAT 350.
In the view of this Tribunal, the question in each case where a disciplinary offence is found against an affected person, is what disciplinary outcome is appropriate in respect of that finding. Thus, on the face of it, separate and distinct penalties in respect of each offence would ordinarily, logically, be expected. However, in some cases, because a number of offences might relate to the same dealing or transaction, or otherwise overlap, the appropriate penalty in respect of some offences might be imposed having regard to the penalty imposed in respect of what might be considered in the circumstances of the case, the lead or primary offence. The Tribunal is entitled, in an appropriate case, to have regard to the extent to which particular findings relate to a common transaction. The Tribunal is also entitled, in its discretion, to regard whether the effect of the penalties, in aggregate, is proportionate to the extent of wrongdoing or misconduct identified by the offences. In these senses, a 'global' penalty may be seen as relevant, but only at the end of the penalty assessment process. In the Tribunal's view, to approach the question of penalty where there are a number of findings on the basis of what seems to be the appropriate 'global' order without first considering the discrete possible penalties, would constitute a failure to exercise the power to impose a penalty in the correct manner.
That this is the right approach is also suggested by the observations made by Owen J in Jemielita. In Jemielita the Medical Board had imposed a variety of penalties, including removal of the practitioner's name from the register. Owen J, at 142, noted that the most severe penalty of removal of name from the register had been imposed by the Board without differentiating between the six charges it had found were made out. His Honour said that the Board gave no indication, by imposing this single penalty, as to the reasoning process which drove it to the conclusion that striking off was the appropriate disposition. This had left the court in a position, on appeal, where it was necessary to engage in a process of speculation to ascertain what motivated the Board to do so and whether there had been an error in the process. His Honour further pointed out that given the Board retained the power, subsequently, to restore the practitioner's name to the register in appropriate circumstances after striking him off, it would always remain useful for a later Board to understand what the process of reasoning had earlier been if a restoration application were later to be considered.
As indicated, the Tribunal does not doubt that the proper approach is to consider what penalties are appropriate in respect of each disciplinary offence, but bearing in mind the extent to which the offences relate to one dealing or transaction and reveal, as it were, distinct acts of wrongdoing or misconduct; as well as taking into account the overall appropriateness of the penalty outcome in respect of the various findings made.
The Tribunal notes, however, that the position in some proceedings may require a different approach where there is but a single allegation which is supported by particulars of numerous cases of misconduct, incompetence or whatever. In such a case, if the allegation is made out, it would not be open to impose separate penalties to each particular wrongful act, but rather appropriate to impose a single penalty for the offence found [149] - [155].