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) 2023/00198670 KML Truck Electrics and Airconditioning Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: Mr M Heath (Applicant) Ms A Douglas-Baker (Respondent) Solicitors: Matthews Folbigg NSW Fair Trading Legal (Respondent) File Number(s): 2023/00197258 2023/00198670 Publication restriction: None REASONS FOR DECISION 1. Before me are two applications for administrative review in relation to the same factual circumstances. The applications relate to the personal and corporate applicants, Mr Kurt Michael Lew ('Mr Lew') and KML Truck Electrics and Airconditioning Pty Ltd (ACN 664 338 943) ('KML Truck'). Mr Lew's application was filed on 20 June 2023 and KML Truck's application was filed on 21 June 2023. The applications, collectively, seek a review of a decision of the Respondent to cancel Mr Lew's Motor Vehicle Repairer Licence (MVRL 55324) and Motor Vehicle Tradesperson Certificate (MVTC 162057), to permanently disqualify Mr Lew from holding a licence under the Motor Dealers and Repairers Act 2013 ('the Act') and from being involved in the direction, management or conduct of a business for which a licence is required, and to suspend KML Truck's Motor Vehicle Repair Licence (MVRL 60830). The Tribunal has jurisdiction to undertake administrative review of the decisions pursuant to s 176(1) of the Act. 2. On 6 September 2023, the respondent cancelled KML Truck's Motor Vehicle Repair Licence (MVRL 60830). The new decision to cancel Motor Vehicle Repair Licence (MVRL 60830) was substituted in place of the previous decision to suspend Motor Vehicle Repair Licence (MVRL 60830) as the decision under review. The Tribunal made an order and waived the requirement for internal review of the decision to cancel Motor Vehicle Repair Licence (MVRL 60830) pursuant to s 55(4)(b) of the Administrative Decisions Review Act 1997 (NSW) ('ADR Act'). 3. The Tribunal heard an urgent stay of the two decisions pursuant to s 56(6), and alternatively s 60 of the ADR Act. On 22 June 2023, the Tribunal made an order that Mr Lew's Motor Vehicle Repairer Licence MVRL 55324 and Motor Vehicle Tradesperson Certificate MVTC 162057 be treated as on foot from 13 July 2023 pending further order of the Tribunal. The stay was granted on condition that neither Mr Lew nor any related corporate entity employ any person for the purpose of carrying out any work authorised by any licence under the Act until the outcome of the substantive review application. On 5 October 2023, the day of this hearing, the stay order was varied by consent to allow KML Truck and Mr Lew to employ only Mr Lew for the purpose of carrying out any work authorised by any licence under the Act, until the outcome of the substantive review application. 4. Also on 22 June 2023, the Tribunal made an order staying the suspension of KML Truck's Motor Vehicle Repair Licence (MVRL 60830) until further order. 5. The two stay orders did not preclude the Respondent from proceeding to consider and make an order for cancellation in respect of KML Truck's Motor Vehicle Repair Licence (MVRL 60830). 6. On 5 October 2023, the Tribunal lifted the stay order made on 22 June 2023 in relation to the suspension of KML Truck's Motor Vehicle Repair Licence (MVRL 60830). I made a further stay order to the effect that KML Truck's Motor Vehicle Repair Licence (MVRL 60830) be treated as on foot from 6 September 2023 pending further order of the Tribunal. The stay was granted on the same condition that neither Mr Lew nor any related corporate entity employ any person save for Mr Kurt Michael Lew for the purpose of carrying out any work authorised by any licence under the Act until the outcome of the substantive review application. 7. In the Respondent's submissions the Commissioner does not oppose an order s 53 of the Civil and Administrative Tribunal Act (NSW) ('NCAT Act') amending the applications for review filed by Mr Lew and KML Truck so that they each refer to the final decision made by the Respondent in respect of Mr Lew's licences in the one application for review and in respect of KML Truck's licences in the other application for review. 8. The Respondent's decisions to cancel Mr Lew's Licence, his Trade Certificate and to permanent disqualify him, arise out of a fatal workplace incident occurring on 15 January 2020. Mr Lew was one of two employees of KML Auto Electrics Pty Limited (ACN 636 758 980) ('KML Auto'). The other employee is the late 18 year old Darby Paxton ('Mr Paxton'). Mr Lew was one of two Directors of KML Auto, the other being his wife. Mr Paxton died as a result of an incident occurring on 15 January 2020. At the time of his death, Mr Paxton was employed as an apprentice with KML Auto and was due to commence a TAFE course as an Auto Electrician. Mr Paxton had worked for 18 days with KML Auto at the time of the incident. 9. KML Truck's Licence was suspended (and subsequently cancelled) following the Respondent finding that Mr Lew – the sole Director, Secretary and shareholder of KML Truck, is not a fit and proper person within the meaning of s 38(1)(c) of the Act to hold a licence. In so finding, the Respondent is precluded from granting a licence to KML Truck by reason of s 25(3)(a) of the Act. If KML Truck was not a licence holder the Respondent would be required to refuse an application by KML Truck for a licence pursuant to s38(1)(d) of the Act. 10. The outcome of Mr Lew's application for review of the Respondent's decision will dictate the outcome of KML Truck's application for review. That is, if Mr Lew is found not fit and proper to hold a licence, that finding will affect the outcome of KML Truck's application for review. 11. The decision in relation to Mr Lew has been the subject of an internal review. The internal reviewer affirmed the decision to impose disciplinary action on Mr Lew. Evidence 1. Mr Lew relied upon the following evidence in his personal matter (23/00197258): * Affidavit of Kurt Lew 16 June 2023 with KML1 - Exhibit A; * Statutory Declaration of Kurt Lew 27 June 2023 – Exhibit B; * Statutory Declaration of Lochlan Swain 27 June 2023 – Exhibit C; * Statutory Declaration of Michael Lew 27 June 2023 – Exhibit D; * character reference at pages 127-131 of the s 58 documents – Exhibit E; * photograph of the arm lock position – Exhibit F; * drawing by Applicant of pole – Exhibit G; * SafeWork email – Exhibit H. 1. KML Truck in the corporate matter (23/00198670) relied on the following evidence: * Affidavit of Kurt Lew 21 June 2023 – Exhibit AA; * written submissions relied upon dated 5 September 2023 in both matters. 1. The Respondent's material included two s 58 bundles, including a further bundle Exhibit 1. 2. I note written submissions filed by each party. 3. The stay orders were continued by consent of the Respondent until the final determination of the substantive matter. Relevant background 1. The following background which is set out in the Respondent's written submissions was drawn from the s 58 documents and a Statement of Agreed Facts in a criminal prosecution before the District Court of New South Wales (SafeWork NSW v KML Auto Electrics Pty Limited (2022) NSWDC 429). These matters are not in dispute and I have reproduced them below. KML Auto Mr Lew (currently aged 37 years) left school at the age of 16 years to commence an apprenticeship as an auto electrician with DB Auto Electrics, for whom he worked until June 2018 at which time Mr Lew commenced his own business, possibly in the name 'KML Auto Electrics and Airconditioning'. On 11 October 2019, KML Auto was registered. From the date of its registration and at all material times, Mr Lew and his wife were Directors and joint shareholders in KML Auto. During the period of its registration and until a liquidator was appointed on 13 March 2023, only two persons have been employed by KML Auto: Mr Lew and the late Mr Paxton. The late Mr Paxton In about October 2019 the late Mr Paxton completed two weeks work experience with KML Auto. On 16 January 2020 Mr Paxton commenced employment with KML Auto as an apprentice and first year auto electrician. Mr Paxton was 18 years of age. The Truck Around midday on 13 January 2020 Mr Lew and Mr Paxton commenced working on a 2001 Isuzu FVY1400 tilt cab truck ('the truck'). The truck was equipped with a tilt tray system which permitted the cab of the truck to be raised and secured in a raised position. The system comprised of a folding stay arm, a spring-loaded lever and a manually installable lock pin, which was attached on the stay arm with a bright yellow chain. The stay arm containing a small sticker of a red arrow and the words 'Lock' pointing in the direction of the pin hole. The procedure for securing the cab in the raised position was to raise the cab manually toward the front of the truck, when fully raised (to a position of about 45 degrees) the spring-loaded lever would automatically latch into position within the unfolded stay arm, with the final step being to install the lock pin into the stay arm to prevent it from folding and causing the cab to lower in the event of inadvertent contact with the lever. Mr Lew and Mr Paxton raised the cab of the truck and Mr Lew heard the lever click into place within the stay arm. Mr Lew then shook the cab to make sure it was secured but he did not inspect the tilt stay system to determine whether it was fitted with a lock pin. Mr Lew assumed the truck did not have a lock pin due to its age. The cab of the truck remained in the raised position from midday on 13 January 2020 until the incident on 15 January 2020. Mr Lew and Mr Paxton worked on the truck in the afternoon of 13 January 2020 and all day on 14 January 2020. Mr Paxton worked on the truck both with, and independently of, Mr Lew. On 15 January 2020 Mr Paxton arrived at the workshop at 8.15 a.m. and Mr Lew and Mr Paxton commenced working on a trailer. At approximately 8.45 a.m. Mr Lew was called to attend a broken down truck in Gilgandra, 40 minutes from the workshop. Before leaving the workshop, Mr Lew instructed Mr Paxton to finish the work on the trailer and put scrap metals in the bin. In his note as to show cause submissions Mr Lew provides further details in relation to the instruction he gave Mr Paxton, which included to clean up and sweep the workshop and also to clean down the benches and return tools to their correct places. Mr Lew estimated that would take Mr Paxton 4-5 hours to complete this list of jobs. Mr Lew says that at no time did he instruct Mr Paxton to conduct any work underneath or alongside the raised cab of the truck. After completing the tasks assigned to him, Mr Paxton returned to working on the truck. Whilst doing so, Mr Paxton inadvertently contacted the lever causing the stay arm to release and the cab to fall upon him. Mr Paxton was crushed and trapped by the cab of the truck. Mr Lew returned to the workshop at approximately 12.15 p.m. and identified Mr Paxton's body underneath the cab of the truck. With the assistance of a Lochlan Swain, a worker from a nearby business, Mr Lew and Mr Swain lifted the cab off Mr Paxton on the second attempt and placed Mr Paxton on the concrete floor of the workshop. At approximately 12.51 p.m. emergency services arrived at the workshop but Mr Paxton was unable to be revived. The cause of death was mechanical asphyxia resulting from prolonged compression of the chest which restricted Mr Paxton's breathing. SafeWork NSW Investigation and Prosecution After the incident an inspection of the truck and the truck's cab tilt tray system was carried out by Mr Swane of Inland Truck Centre, Dubbo. Mr Swane identified that the truck's cab tilt tray system had been replaced in recent times as it had multiple stickers attached to it and nil sign of wear and tear. Mr Swane identified that firm, but not undue, pressure was required to be applied to the spring-loaded lever to enable it to be released, and once the spring-loaded lever was disengaged, the stay arm required minimal (almost nil) assistance reward to enable the cab to lower. A 'slight rock' was sufficient for the stay arm to pass back over its entire centre and allow the cab to come down. SafeWork NSW commenced a prosecution of KML Auto alleging KML Auto breached its statutory duties under ss32 and 19(1) of the Work Health and Safety Act 2011 (NSW) for failure to comply with its primary duty to ensure the safety of works. SafeWork alleged breach of the Work Health and Safety Regulation 2017 (NSW) (Safety Regulations) for failure to identify reasonably identified hazards that could give rise to risks to health and safety (clause 34), to eliminate risks to health and safety so far as is reasonably practicable and if it is not reasonably practical to eliminate risk, to minimise those risks so far as reasonably practicable (clause 35), and to minimise risks so far as reasonably practicable by substituting the hazard with something that gives rise to a lesser risk, isolating the hazard from any person exposed to it, and/or implementing engineering controls (clause 36). SafeWork also alleged KML Auto had failed to manage workplace risks with respect to falling objects in accordance with clauses 54 and 55 of the Safety Regulations. Prior to the incident, in 2013 and in 2016, two work health safety publications had been issued addressing the risk of crush injuries from a cab falling on a worker. The first was a safety alert issued by Northern Territory WorkSafe addressing an incident where fatal injuries were sustained by a worker who was crushed when a cab fell back onto him. The safety alert reminded workers and persons conducting a business or undertaking (PCBU) to engage properly all safety mechanisms before undertaking work on vehicles or machinery, requiring the lock pin to be inserted into place to ensure the cab support is not accidentally disengaged causing the cab to fall back into place, and stating that all safety mechanisms should be engaged and checked before commencement of maintenance work on vehicles or machinery. The second was a SafeWork NSW safety alert highlighting the risk of workers being hit or crushed when working on heavy vehicles and trailers and warning never to work underneath or near a vehicle that does not have a secondary support/safety system in place. It was also an agreed fact in the prosecution that there were videos available online explaining how the cab of an Isuzu cab tilt tray system operated, including video showing how to secure the cab in a raised position by inserting the safety pin in the stay arm. It was common ground in the prosecution, and it is common ground in these proceedings, that Mr Lew assumed that the truck was not fitted with a lock pin due to its age and that he did not undertake an inspection of the stay arm to determine whether it was fitted with a lock pin. Had an inspection been carried out, it would have been determined that the cab tilt tray system was fitted with a lock pin and that the lock pin was to be inserted before any worker worked beneath the raised cab. KML did not undertake a risk assessment of the risks associated with working beneath the raised cab or how to control such risks. Both Mr Lew and Mr Paxton worked under the raised cab when the lock pin was not inserted. KML did not provide Mr Paxton with any information about the hazards of working under the raised cab or about the controls to ensure safety, in particular the insertion of the lock pin. The findings of the District Court in the criminal prosecution 1. Judge Strathdee adopted the matters set out in the Statement of Agreed Facts. Judge Strathdee found Mr Lew did not inspect the stay arm to determine if it was fitted with a lock pin and had he done so he would have identified that it was fitted with a lock pin to be inserted prior to undertaking work beneath the raised cab. 2. Judge Strathdee also found that KML did not undertake a risk assessment of the risks associated with the works to be done on the truck. She found that had such a risk assessment been undertaken, it would have identified the risk of the cab falling and crushing a worker, including by inadvertent contact with the lever, and it would have identified control measures to be implemented and maintained when working beneath the cab, in particular the need to insert the lock pin. 3. Her Honour found that KML failed to develop, implement and maintain a system of work for undertaken work beneath the raised cab of the truck. 4. Judge Strathdee also found that KML did not provide Mr Paxton with information about the hazards of working under the truck's raised cab and the controls to ensure his safety, particularly the need to insert the lock pin in the stay arm. 5. The risk identified was the risk of serious injury or death as a result of being crushed and trapped by the cab of a tilt cab truck. 6. Her Honour found the following matters relevant to KML's culpability when determining the appropriate penalty: 1. The risk was obvious and foreseeable. 2. The control measures were obvious and known to KML, specifically that Mr Lew was aware of the availability of lock pins as a control measure to eliminate the risk. 3. The manual for the vehicle also referred to lock pins and the method of raising and lowering the cab. 4. There were simple, available and straightforward steps which could have been taken to immediately avoid the risks, which were known to KML and there were no costs associated with undertaking an inspection, identifying and inserting the lock pin attached to the stay arm into the stay arm; lowering the cab when no work was required to be undertaken; and implementing a safe system of work (inserting the lock pin, checking the lock pin was inserted, and lowering the cab when no work was required to be undertaken); and providing information to Mr Paxton, a young and inexperienced worker, about the hazards and required control measures to ensure his safety. 5. The potential consequences of the risk eventuating were catastrophic as a fall could cause serious injury or death if the cab fell on someone. 6. The likelihood of the risk materialising was reasonably high and it was not unexpected Mr Paxton would undertake work on the truck as he had done in the days prior, independently and with Mr Lew. 7. It was foreseeable that a person working under the cab may accidentally contact the lever on the stay arm, causing the cab to fall and that risk could have materialised at any time. 1. Her Honour concluded that the offence was objectively serious and that the seriousness of the foreseeable harm to the worker was extreme, and the steps available to avoid the risk were known and readily available. 2. Criticism was raised in terms of Mr Lew making arrangements two years after the incident for a third party to undertake a safety audit of the company's practices and scheduling attendance at safety-related training courses. 3. Her Honour took into consideration mitigating factors on sentence, including Mr Lew accepting responsibility for KML's failures and that he had demonstrated remorse and contrition, and that KML had cooperated with the investigation. An early plea and discount of 25% was applied. Judge Strathdee considered the breach 'especially egregious' given the risk was known and no risk assessment was required, and Mr Paxton was a very vulnerable worker given his young age of 18 years and inexperience. The Respondent notes the following in written submissions: 'In the context of Mr Lew not inspecting the cab tilt tray system for the presence of a lock pin and assuming that given its age the truck did not have one, her Honour made the following comments: I find it very difficult to understand how [in light of the above], and all of the circumstances, Mr Lew could leave a very vulnerable young worker on his own in the workshop, on his 8th day of work unsupervised and with no other person or persons present, for some hours, when he, Mr Lew, did not inspect the cab tilt tray system, and made incorrect assumptions as to the availability of control measures. The risks were so obvious and the potential consequences so catastrophic. That is a message that needs to be made very clear to all industries, not just motor repairs, that a blatant disregard for the safety of a vulnerable worker will not be tolerated.' 1. KML was fined $375,000 having taken into consideration the 25% discount for an early plea. To date, the fine remains unpaid. Relevant legislation 1. Section 3 of the Act sets out the objects of the legislation which include: '(a) to provide consumer protections and remedies for consumers who purchase motor vehicles from motor dealers or obtain motor vehicle repair services, (b) to establish appropriate standards of conduct and transparency for motor dealers, motor vehicle repairs and motor vehicle recyclers, (c) to provide enforcement mechanisms to prevent misleading and dishonest conduct and illegal dealings with motor vehicles and parts, (d) to provide protection for motor dealers against unfair contract dealings by motor vehicle manufacturers.' 1. Section 12 of the Act prescribes that a person must not carry on, …, the business of a motor vehicle repairer unless an individual carrying on the business of a motor vehicle repairer is licensed. 2. Section 15 of the Act prohibits a motor vehicle repairer from entering into an agreement for any repair work to be done by another person who is not the holder of a motor vehicle repairer's licence. 3. Section 16 of the Act prohibits a motor vehicle repairer or a motor vehicle dealer engaging an employee to undertake repair work unless the person doing the work holds a relevant trade person's certificate for the class of repair work that is being undertaken, or is doing work in the course of an apprenticeship or traineeship. 4. Pursuant to s 38 of the Act, New South Wales Fair Trading is able to commence disciplinary action under s 45 of the Act against a licence holder on specific grounds. Relevantly, those grounds are as follows: '(1) The grounds on which disciplinary action may be taken against a licence holder or a former licence holder are as follows: … (c) the person is not a fit and proper person to hold a licence, …' 1. Section 45 of the Act allows the Secretary to take any of the following disciplinary action against a person if the Secretary is satisfied that there are grounds for taking such disciplinary action against the person including: '(a) reprimand the person, (b) direct the person to take specific action within a specified time in connection with the conduct of a business or the exercise of functions under a licence, (c) suspend the person's licence for a period not exceeding the unexpired term of the licence, (d) impose a condition on the person's licence, (d1) require the person to pay the Secretary the following within a specified time: (i) for an individual – an amount up to $11,000, (ii) for a body corporate – an amount of up to $50,000, (e) without limiting paragraph (b), require a licence holder to make a contribution to the compensation fund of a specific amount or indemnify the fund to the extent specified by the Secretary in the event of a particular contingency arising from the licence holder's activities, (f) disqualify the person, either permanently or for a specified period, from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required, (g) cancel a licence. (2) The disciplinary action is to be taken by order in writing given to the person against whom the action is being taken. The order must specify the date on which the order takes effect. (3) The Secretary must cancel a licence if the Secretary disqualifies the licence holder from being the holder of a licence. (4) The Secretary must not require a person to pay an amount under subsection (1)(d1) – (a) in relation to grounds for disciplinary action mentioned in section 38(1)(c)-(f), 39(j) or 40, or (b) if the person has been found guilty of an offence in relation to the ground specified in the show cause notice given to the person.' [My emphasis] 1. As set out above the Tribunal has jurisdiction to undertake an administrative review of the decisions made by the Secretary pursuant to s 176 of the Act, which relevantly provides: '(1) If the Secretary – (a) refuses to grant an application for, or suspends or cancels, a licence, or (b) imposes a condition on a licence, (c) Imposes a disqualification referred to in Division 2 of Part 3, or …' Administrative review 1. When considering an application for administrative review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: case of YG & GG v Minister of Community Services [2002] NSWCA 247 at [24]. 2. The Tribunal may decide to affirm or vary the administrative reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act. 3. Under s 38(2) of the NCAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 4. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probability. There is, however, no burden or onus of proof. The civil standard applies even if the conduct in question may be criminal: Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; (1992) 110 ALR 449. Fitness and propriety 1. The concept of 'fit and proper' takes its meaning from its context and 'cannot be entirely divorced from the conduct of the person who is or will be engaging' in the relevant activity. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and their consideration of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 'The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaging and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of a person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.' 1. They went on to say at [388]: 'The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: 'In my opinion what is meant by the expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.' 1. In Hughes & Vale Pty Limited v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' at [156]-[157]: 'The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgement and indeed for rejection. 'Fit (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in a state as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or polity neglect it': Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an enquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be enquired into; each case must depend upon its own circumstances.' 1. What fit and proper means must be viewed in the light of, '… the activities in which the person is or will be engaged': Re Percival v Australian Securities Commission (1993) AATA 196; (1993) 30 ALD 280, at [90]. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennand v Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 para [41]. The Respondent's case 1. Overall, the Respondent submits that the Tribunal would find the Applicants in both matters are not fit and proper persons to hold a licence for the following reasons. 1. Mr Lew has demonstrated a lack of knowledge in relation to safe work practices. This is evidenced by his failure to check for a lock pin to secure the stay arm and instead proceed on the assumption that the truck did not have a lock pin due to its age. His recklessness in doing so is a fundamental aspect of safety in relation to the work the subject of the licence he seeks to be reinstated. 2. Mr Lew has not addressed any safe systems of work in relation to raised loads, and workplace safety even where engaging HMC to conduct a safety audit of his workshop premises. 3. Mr Lew has not served any expert evidence which would demonstrate improved safety systems in respect of the precise obvious risk which led to the death of Mr Paxton. This is particularly in circumstances where Mr Lew continues to work on repairing trucks and other heavy agricultural equipment. 4. The submission of Mr Lew that the accident was an isolated incident should not be accepted. The Respondent contends that the raised cab was left in an unsafe position (namely no lock pin inserted) for 48 hours and Mr Lew and Mr Paxton were exposed to an obvious risk and foreseeable risk of injury while they worked on the truck. Therefore, the risk was a continuing one for that period and can not be described as an isolated incident. 5. Mr Lew's conduct was reckless and demonstrated a lack of moral integrity and rectitude in respect of his work safety obligations to a vulnerable, young and inexperienced employee. 1. The Respondent contends that the Tribunal would find Mr Lew is not fit and proper to hold a licence and that the cancellation of his licence and his permanent disqualification is appropriate and proportionate to his admitted misconduct, the circumstances of that misconduct and the insufficiency of the steps Mr Lew has taken in respect of work, health and safety measures in the workplace since the incident. 2. The Respondent contends that the decision subject to administrative review ought to be affirmed. The Applicant's case 1. Mr Lew contends that the administrative reviewable decision should be set aside. Mr Lew submits that he as the sole Director and shareholder of KML Auto are one and the same people. There is no dispute in this regard. 2. Mr Lew submits that any disciplinary orders which are made by this Tribunal in undertaking administrative review of the decisions are protective and should not be made to punish Mr Lew. This is also not in dispute. 3. Mr Lew contends that the permanent cancellation of his licence and certificate, are not necessary to affect a mode of continuing public protection for the following reasons. 1. The incident was isolated and whilst it may suffice to show lack of fitness and propriety, this is not necessarily the case, and 'deliberate prolonged conduct or a course of conduct' stands on a different footing (referring to Flannigan v Commissioner of Fair Trading [2004] NSWADT 166 citing: New South Wales Bar Association v Evett (1968) 117 at 183; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at [298]). The accident in this case was not the result of a pattern of unsafe practices nor is there evidence of such a pattern. 2. Mr Lew has had no adverse history regarding his licences, where, at the time of the accident he has been in the industry for 17 years. 3. Mr Lew had not been involved in any other workplace WHS matters before the fatal accident involving Mr Paxton. 4. Mr Lew accepted full responsibility for the accident. He accepted that the WHS offence was serious and he has demonstrated remorse. 5. Mr Lew has committed to not employing any apprentices and is prepared to consent to a condition to that effect. He contends there is no physical risk to such a person in the future from activities in the workshop. 6. Mr Lew contends that he has not demonstrated a lack of moral integrity. His conduct was unintentional, he cooperated with authorities and the investigation following the accident. There is no evidence in terms of him being dishonest or misleading in his participation in the investigation. He caused his company to agree to a statement of agreed facts, plead guilty to the offence at the first opportunity and did not deny or deflect responsibility for what occurred. Mr Lew contends that moral integrity embodies notions of honesty and ethical behaviour. What happened, he contends, was a catastrophic failure of process, not morality. Mr Lew made an incorrect assumption based on the age of the truck. It was wrong and his assumption led to a catastrophic injury and the death of a young man. He contends that what he did not do was inspect the truck to determine if it was fitted with a lock pin. This is not moral failure. 7. Mr Lew contends that there is no evidence enabling a finding that he does not have the requisite knowledge in so far as the technical capacity or ability to undertake the work authorised by the licence. 8. Mr Lew contends that he commissioned a consultant HMC to look at work and safety issues within his workshop. He concedes that he did this 2 years after the accident. His explanation for that delay is given the 'immediate aftermath of Mr Paxton's death and that the Covid-19 lockdowns first came into effect in March of 2020, the delay is understandable. Simply getting a suitable consultant to attend was a challenge. The changes recommended by the HMC report have been implemented.' 9. Mr Lew contends that he does not lack insight as to the consequences of what happened. He, with the benefit of hindsight, has implemented other safety precautions to prevent any such accident occurring again. 10. In terms of the severity of a cancellation of his licence, Mr Lew contends that cancellation and disqualification is manifestly excessive and disproportionate in all the circumstances. Without the relevant licences he is unable to work in his chosen trade, nor work for any other person or entity in that field. The Applicant's evidence 1. Mr Lew filed a number of Affidavits, Statutory Declarations and Statements. I have considered each of them. 2. At the commencement of his evidence Mr Lew said that since the accident he has not employed any apprentice nor other person at his premises. In the future, he has no intention of doing so, either on his own or within the business KML Truck. 3. Mr Lew has considered and adopted the recommendations which are set out in the HMC Group Solutions Pty Limited (HMC) workplace investigation report. He explained his delay in retaining the expert as set out above. I accept his reasons for not doing so. His reasons include the effect the accident had on his own mental state, the delay in being able to obtain an expert and carry out his capacity to work during the Covid-19 pandemic lockdowns and the report being obtained as part of the WorkSafe prosecution proceedings in the District Court of New South Wales. I find that Mr Lew has provided a reasonable explanation for the delay and the delay itself is not a factor which counts against him in this administrative review proceeding. 4. Mr Lew sets out fourteen different safety precautions recommended by the expert HMC in undertaking the workplace safety assessment. I am satisfied based on his evidence, which is not in dispute, that he has modified his workshop to incorporate those recommendations. There is no evidence to contradict the expert's recommendations that have been adopted. 5. Mr Lew has also implemented a process to restrict public access into the workshop. That includes customers leaving their vehicle outside of the workshop with Mr Lew being provided keys. Mr Lew is the only person that drives vehicles into the workshop to complete required works. Mr Lew himself removes the vehicle from the workshop when the work is completed and returns the vehicle key to the customer. 6. In oral evidence Mr Lew confirmed at the time of the accident he did not have a process of lifting cabs on trucks. Mr Lew said that since the accident he has changed a lot of things. Mr Lew said he is aware of, and reviews government safety alerts issued by the New South Wales Government (together with national safety alerts) and described having received one on the day before the hearing. He said he accesses more information that is available through WorkSafe New South Wales and he reviews manuals in the trucks to ensure him carrying out his work safely. He explained the process which is now adopted when a truck is driven into the workshop and its cab is lifted. When looking at a manual in a truck he will specifically refer to that part of the manual with respect to whether there is a lock pin mechanism fitted to secure the lifting arm of the cab. He said that if a truck does not have a manual he would research Google to look up the specific requirements for the cab he would be working on. Armed with this information, he would ensure that the lock arm of the cab is secured before working on the truck. 7. Mr Lew was asked what he would do if trucks do not have lock pins to secure the lifting arm. He said he his new policy is that he will not work on a truck which does not have a lock pin to secure the lifting arm. Mr Lew will inform customers to get the arm fixed and have a lock pin installed before he will undertake any work on the truck. Mr Lew said he asked the expert of HMC about what extra training he could undertake with respect to the lifting of cab tilt trays. The assessor was unaware of any specific course he could undertake in that regard. Mr Lew's evidence included that in addition to ensuring a lock pin is fitted in the lifting arm, he has also implemented the use of a metal pole made up with a lock pin that locks into the cab and goes to the ground. He said this is an extra support and is used as a secondary method to prevent the cab falling. 8. Mr Lew referred to the additional matters he has implemented with regard to safety in the workshop. This included him erecting signs stating that the public are not to enter the workshop, as well as the regime of only him being allowed to move cars in and out of the workshop. 9. In cross-examination Mr Lew's evidence was tested with regard to whether he accepted vehicles which are not fitted with lock pins. He said he has refused vehicles to be admitted into the workshop that are not fitted with a lock pin since January 2020. He does not retrofit a locking system himself. This is because he is an auto electrician and the rectification work is of a mechanical nature and outside his training and experience. 10. Mr Lew said that he receives New South Wales Government WorkSafe alerts and updates by email. He was unsure as to how often they are sent. Mr Lew confirmed that his arrangement with HMC advising him about WHS matters is ongoing and HMC contract him when inspections are required. 11. Mr Lew was asked whether it was his usual practice to leave the cab of a truck up over a 3 day period, even in circumstances where he was not working on the truck on a particular day. He said that at the time of the accident it was common practice to leave the truck cab up. However, since the accident, he would put the cab down if he was not working on that part of the truck to avoid any ongoing risk. In his general work, Mr Lew estimated that he would only need to lift the cab of a truck perhaps once every two weeks. Importantly, Mr Lew set out his current practice when lifting the cab of a truck in the workshop. He declines any work on a vehicle without a locking pin. After driving the truck into his workshop, he would apply the brakes and place chocks behind the wheels to secure the vehicle. He would look for a manual if available. If no manual was available he would search Google for the manual of the truck to familiarise himself with how the cab should be lifted and the lock pin inserted. He would then ensure the lock pin is engaged, he would wiggle the vehicle and restrict access to the workshop to only authorised people. He would fix in place the double pronged pole system to secure the cab. 12. In assessing Mr Lew's evidence, I am satisfied he has demonstrated insight into his prior conduct and the consequences which have led from his error. He has reasonably informed himself specifically about the risks and dangers in undertaking similar work within his workshop. I accept that Mr Lew keeps himself appraised of safety alerts and has retained a safety expert to continually advise him in safety aspects of running his workshop and the work he undertakes. In submissions, the Respondent acknowledged that Mr Lew appears to have learnt from his previous error, he has informed himself of safety issues and follows news stories about examples of other industrial accidents. This weighs in his favour. 13. I find that Mr Lew has learnt from his mistakes which led to the catastrophic death of Mr Paxton. He has adopted a new practice in working with trucks in his workshop, and in particular, a new practice in lifting the cab of trucks. He regularly reviews WHS safety alerts in NSW and nationally. In addition, Mr Lew continues to obtain advice and allows regular review and audits of his practice as an auto electrician by an industry safety expert. This not only shows insight into what led to the unfortunate death of the Mr Paxton, but a genuine desire to improve his workplace so as to prevent such an accident from reoccurring in the future. 14. Mr Lew described Mr Paxton as a 'really great guy' and became tearful during his evidence when discussing the specifics about the accident and Mr Paxton. 15. I find Mr Lew to be an honest and reliable witness. He also demonstrated, and has done since the very unfortunate death of Mr Paxton, remorse and has taken full responsibility for the accident, which I give appropriate weight. Issues for determination 1. The issues for determination by the Tribunal are: 1. whether Mr Lew is a fit and proper person to hold a licence pursuant to s 20 of the Act; 2. whether there were grounds pursuant to s 38 of the Act for cancelling Mr Lew's licence and certificate; 3. whether there were grounds pursuant to s 38 of the Act to disqualify Mr Lew from holding a licence. 1. Following the Tribunal's determination of those issues, the Tribunal must determine: 1. whether any action is warranted under s 45 of the Act; and if so 2. what action is necessary. My consideration 1. It is not in dispute that prior to the accident, Mr Lew had no recorded adverse findings or matters which had come to the attention of the Respondent with respect to Mr Lew's fitness and propriety to hold the relevant licence or certificate. This is significant given his seventeen years of work as an auto electrician. It is a factor which I give substantial weight. 2. The circumstances leading to the death of Mr Paxton resulted from a failure of Mr Lew, being the experienced tradesperson directing Mr Paxton to carry out in a safe and competent manner. Mr Lew has conceded that his failure to properly direct Mr Paxton and his failure to detect a lock pin and activate it, led to the catastrophic injuries causing Mr Paxton's death. Mr Lew proceeded upon an incorrect assumption that due to the trucks age, there was not a lock pin fitted on the truck to lock the stay arm. This is not in dispute. Mr Lew's evidence and his presentation before me was such that he is extremely remorseful for his failings and he has not resiled from making full admissions with respect to that failure and its consequences. 3. In determining this matter I have considered all of the evidence and make the following findings. Is Mr Lew a fit and proper person to hold a licence and certificate? 1. The circumstances surrounding the accident leading to the death of Mr Paxton are set out above and I do not intend to repeat them. Suffice to say, that Mr Lew has evidence demonstrated that he has learned from his prior failings. He set out how he informs himself about safety issues, how he accesses various news stories and other information sites concerning work, health and safety incidents, both in New South Wales and around Australia. He has retained HMC as a consultant for his workplace and continues to consult that expert in terms of work, health and safety matters. Mr Lew has turned his mind to and has implemented changes to improve his policies, practice and procedure in carrying out work within his workshop. He has identified the potential risks to the safety of both persons within the workshop and restricts access to the public to all areas that may be unsafe. These are all matters that weigh in Mr Lew's favour. 2. The real question for the Tribunal is whether I am satisfied that these steps to improve his knowledge and processes are sufficient to displace any concern the Tribunal has about the workplace incident. In turning my mind to this question, I am satisfied that he has remarkably improved his knowledge and processes since the 2020 accident. 3. The accident which led to the late Mr Paxton's death was at the highest degree of seriousness. Mr Lew's incorrect assumption that the truck did not have a lock pin was a total failure of his duties and obligations as both an employer and supervisor of Mr Paxton. If Mr Lew did not accept his failure of responsibility and was obstructive in the ensuing investigation, one might question his fitness and propriety to remain a licence holder and indeed whether he should be disqualified from being a holder of the licence. I do not find the circumstances of this matter place Mr Lew into that category. Mr Lew's conduct since the accident in my view demonstrates that he has insight into his previous failings. He has taken considerable steps to improve his knowledge, understanding and skill in preventing such an accident from reoccurring which is discussed above. I am confident that when examining the likelihood of similar future conduct, that the risk of Mr Lew ever succumbing to such a lack of adequate safety precautions and practices within the work environment is low. This is evidenced by Mr Lew's attitude, his insight into his previous conduct and the considerable steps he has taken to improve his knowledge and ability to maintain a safe workplace, also set out above. 4. In respect of Mr Lew's lack of moral rectitude and integrity, the Respondent contends that his failure to check for a lock pin, involves some deliberateness which is the reckless conduct. I accept the Respondent's submission that the lack of moral rectitude and integrity is limited to this aspect. At least as at the date of the accident in 2020, I accept Mr Lew's conduct was reckless and in that limited respect and he demonstrated a lack of moral integrity and rectitude in respect of his work safety obligations owed to a vulnerable, young and inexperienced employee. However, the Tribunal when undertaking an administrative review does so on the basis of all the known facts and circumstances and with available evidence as at the date of hearing. In taking into consideration Mr Lew's evidence with respect to the steps he has taken to improve his knowledge and processes within the workshop, I am not persuaded that at the date of this hearing he demonstrates a lack of moral integrity and rectitude which would warrant either a cancellation of his licence or disqualification to hold a licence. I am satisfied that Mr Lew has demonstrated sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public to hold the licence as a person to be entrusted with the sort of work which the licence entails. 5. While those assurances can be accepted, there is another aspect of the issue that must be borne in mind. The Tribunal discussed the following matters in Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 ('Lee') at [202]-[204], which I adopt: Regulatory licensing structures, whether in relation to firearms, health care, public transport or a variety of other matters affecting public safety, also serve the public interest by establishing a regulatory system that helps to preserve public confidence in the protection of public safety. The Court of Appeal explained that function in Health Care Complaints Commission v Do [2014] NSWCA 307, [34] – [39]: The objective of protecting the safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. The Court of Appeal gave further guidance on the operation of the deterrent factor in New South Wales Bar Association v Meakes [2006] NSWCA 340: 113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. 114 That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. Although firearms law incorporates a number of criminal sanctions, it is not part of the criminal law as generally understood. But those cases, among other authorities, show that the concept of deterrence, both specific and general, which plays a large part in the criminal justice system, also has an application in this type of context. Specific deterrence as regards sanctions for breach of a licensing requirement protects the public by preventing the relevant licensee from engaging in further violations and ensuring that the licensee appreciates the adverse consequences of infringing conduct in the event that he or she is again issued with a licence in the future. 1. In the present case there is little likelihood of Mr Lew conducting himself in the same manner. Given the opportunity to hold a licence again in the future he is unlikely to fall into the same error or to neglect his duties concerning work, health and safety, as a person in charge of a workshop. I find specific deterrence has been satisfied. 2. In terms of general deterrence, I adopt what the Tribunal said at [206] in Lee: "… by denouncing such misconduct and helping to maintain public confidence by signalling that those whose conduct does not meet the required standards will be visited with consequences, including not being permitted to hold a licence…", or, having conditions placed upon their licence. I am not satisfied that general deterrence will be best achieved by cancelling Mr Lew's Licence or disqualifying him from carrying out his chosen trade. However, public confidence in the high standards expected in the motor repairers industry would be maintained by conditions being placed upon Mr Lew's Licence(s), particularly in the circumstances which relate to the accident in 2020. My orders reflect an appropriate condition. Was the accident an isolated one? 1. I reject the Respondent's contention that the accident was not an isolated incident. The Respondent contends that the incident of 15 January 2020 was not an isolated incident in terms of the outcome. That is because the truck's cab was raised without the lock pin in place from the afternoon of Monday, 13 January 2020, to about midday 15 January 2020. When Mr Paxton and Mr Lew were not working on the truck, the cab remained lifted and Mr Paxton was left alone in the workshop on the morning of 15 January 2020 in circumstances where the raised cab was left in an unsafe position (namely, no lock pin inserted). Mr Paxton was exposed to an obvious and foreseeable risk of injury in those circumstances for 48 hours. I am not persuaded by the Respondent's contention that the circumstances cannot be described as an isolated incident. The failure of Mr Lew to identify the risk was obvious, but the circumstances are in my view isolated to that period of 48 hours which led to the catastrophic injuries to Mr Paxton. This is not a matter where there is evidence that Mr Lew did not bother to check for a lock pin in any circumstance where he worked on lifting the cab of a truck. It is however a matter where he made a mistake in assuming the truck did not have a lock pin and he failed to carry out a risk assessment. In my view this can be seen as an isolated incident in the circumstances. I have also considered that Mr Lew has an unblemished record absent the 2020 accident of any other failures of work, health and safety practices which supports my finding of this being an isolated incident. 2. I have also taken into consideration that Mr Lew has since changed his practice to prevent a reoccurrence in the future. This is borne out above, which I do not intend to rehearse. Mr Lew's evidence is material not only in terms of his insight but it is demonstrative of his learning and improved understanding about safety. 3. I accept Mr Lew's contention that there is no pattern of flagrant disregard for work, health and safety issues. This is a factor which I have given significant weight. 4. The respondent contends that Mr Lew was not able to reasonably explain the safety procedures and protocols he has implemented. I accept Mr Lew's submissions that he is not an educated man, except with respect to the specific trade of being an auto electrician. I find Mr Lew's explanation about how he would implement safety procedures with respect to the lifting of a cab of truck was reasonable. Mr Lew was able to identify the safety risks in the workplace, particularly with the benefit of hindsight of the 2020 accident. He explained how his practice has changed and the measures he now takes to keep himself informed of workplace safety issues, including the ongoing relationship he has with the safety expert. 5. I accept that Mr Lew was reckless in leaving Mr Paxton in the workshop when it was objectively unsafe to do so. However, I accept this was an isolated incident. It is highly unlikely to ever occur given. 6. I conclude that Mr Lew is a fit and proper person to hold a licence pursuant to s 20 of the Act. 7. I am not satisfied that there are grounds pursuant to s 38 of the Act to cancel Mr Lew's licence and certificate. 8. I am not satisfied that there are grounds pursuant to s 38 of the Act to disqualify Mr Lew from holding a licence and/or certificate. 9. The decision made on 13 June 2023 is set aside. 10. Mr Lew is the only employee, and director of KML Truck. Given my findings the decision made on 6 September 2023 is also to be set aside. 11. In conducting this review, I must bear in mind that the protection of the public is a principal objective of the Act. That extends to the protection of employees as members of the public. At the conclusion of the hearing, the respondent reserved his position about whether conditions ought to be considered if the decision to cancel the licence and disqualify Mr Lew were set aside. 12. I listed the proceedings for further hearing to allow the parties an opportunity to make any submissions concerning the question of conditions being placed upon the Licence/s. By email to the Tribunal's registry dated 4 July 2024, the parties elected to not make any further submissions unless the Tribunal required them to do so. In the circumstances, I am satisfied that I can deal with the question of whether conditions should be placed on the Licences without further submissions. 13. Mr Lew does not oppose a condition being placed upon his associated Licenses and his Trade Certificate. For the reasons I have set out above with regard to general deterrence and the public interest, I find that it is appropriate to place the following condition upon the Licences and Trade Certificate: "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." 14. At the appropriate time, the Respondent is able to review the condition pursuant to s 32 of the Act. Orders 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): 1. 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. 1. The condition in order 2(a) may to be reviewed by the Commissioner for Fair Trading in accordance with s 32 of the Motor Dealers and Repairers Act 2013. 2. 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): 1. 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. 1. 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. 2. The stay order made on 5 October 2023 is lifted. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 11 July 2024 - Formatting fixed at paragraphs 12, 13 - Subsequent paragraphs renumbered including orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2024