Lew v Commissioner for Fair Trading; KML Truck Electrics and Airconditioning Pty Ltd v Commissioner for Fair Trading [2024] NSWCATOD 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lew v Commissioner for Fair Trading; KML Truck Electrics and Airconditioning Pty Ltd v Commissioner for Fair Trading [2024] NSWCATOD 96 Hearing dates: 5 October 2023 Submissions 4 July 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member Decision: 2023/00197258 (1) The decision made on 13 June 2023 is set aside. (2) In substitution thereof, and pursuant to s 32 of the Motor Dealers and Repairers Act 2013, the following condition is placed upon the Licence (MVRL 55324) and Motor Vehicle Tradesperson Certificate (MVTC 162057): (a) Mr Kurt Michael Lew and any related corporate entity are prohibited from employing any person save for Mr Kurt Michael Lew, for the purpose of carrying out any work authorised by any licence under the Motor Dealers and Repairers Act 2013 at any business premises operated or controlled by Kurt Michael Lew. (3) The condition in order 2(a) may be reviewed by the Commissioner for Fair Trading in accordance with s 32 of the Motor Dealers and Repairers Act 2013. (4) The stay order made on 5 October 2023 is lifted. 2023/00198670 (1) Pursuant to s 52 of the Civil and Administrative Tribunal Act 2013, the application is amended such that the decision made on 6 September 2023 to cancel KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830) is the substituted decision for review pursuant to s 63 of the Administrative Decisions Review Act 1997. (2) Leave is granted for the applicant to proceed with administrative review of the decision made on 6 September 2023 to cancel KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830) without the need for internal review pursuant to 55(4)(b) of the Administrative Decisions Review Act 1997. (3) The decision made on 6 September 2023 to cancel KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830) is set aside. (4) In substitution thereof, and pursuant to s 32 of the Motor Dealers and Repairers Act 2013, the following condition is placed upon KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830): (a) Mr Kurt Michael Lew and any related corporate entity are prohibited from employing any person save for Mr Kurt Michael Lew, for the purpose of carrying out any work authorised by any licence under the Motor Dealers and Repairers Act 2013 at any business premises operated or controlled by Kurt Michael Lew. (5) The condition in order 4(a) may be reviewed by the Commissioner for Fair Trading in accordance with s 32 of the Motor Dealers and Repairers Act 2013. (6) The stay order made on 5 October 2023 is lifted. Catchwords: ADMINISTRATIVE LAW – motor dealers licence – motor dealers certificate - administrative review of decision to cancel licence - disqualification from holding a licence – death of employee – fit and proper person – carrying on business - moral integrity and rectitude of character - seriousness or otherwise of particular conduct – imposition of condition Legislation Cited: Administrative Disputes Review Act 1997 Civil and Administrative Tribunal Act 2013 Motor Dealer and Repairer's Act 2013 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Flannigan v Commissioner of Fair Trading [2004] NSWADT 166 Health Care Complaints Commission v Do [2014] NSWCA 307 Hughes & Vale Pty Limited v New South Wales (No. 2) (1955) 93 CLR 127 Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66 New South Wales Bar Association v Evett (1968) 117 New South Wales Bar Association v Meakes [2006] NSWCA 340 Re Brennand v Australian Casino Surveillance Authority (1995) 38 ALD 794 Re Percival v Australian Securities Commission (1993) AATA 196 SafeWork NSW v KML Auto Electrics Pty Limited (2022) NSWDC 429 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 YG & GG v Minister of Community Services [2002] NSWCA 247 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Category: Principal judgment Parties: 2023/00197258 Kurt Lew (Applicant) Commissioner for Fair Trading (Respondent)