Trlin -v- Department of Fair Trading [1999] NSWADT 72

CITATION: Trlin -v- Department of Fair Trading [1999] NSWADT 72

DIVISION: General

APPLICANT: John Trlin

RESPONDENT: Department of Fair Trading

FILE NUMBER: 993100

HEARING DATES: 08/18/1999

SUBMISSIONS CLOSED: 08/18/1999

DATE OF DECISION: 31 August 1999

G Fleming - Judicial Member BEFORE:

PRIMARY LEGISLATION: Motor Dealers Act 1974

APPLICATION: Review of decision to refuse to grant a motor dealers licence -

MATTER FOR DECISION: Principal Matter

Applicant: in person REPRESENTATION: Respondent: C Lonergan of counsel

ORDERS: 1. The Tribunal affirms the decision under review.

THE APPLICATION 1 This is an application by John Trlin ('the Applicant') for review of the decision of the Director General, Department of Fair Trading ('the Respondent'), to refuse to grant him a motor dealers licence pursuant to the Motor Dealers Act 1974 ('the Act'). 2 The original application for the licence was made on 25 May 1998. The decision to refuse to grant the licence was made by the Respondent's delegate on 14 December 1998. The Applicant sought internal review of this decision and on 23 April 1999 the decision was affirmed. The Applicant applied to this Tribunal for review on 21 May 1999. THE RELEVANT LAW 3 The grant or refusal of a motor dealer's licence is a matter for decision by the Respondent pursuant to Part 2 of the Act. Section 20F of the Act provides that a person who has been refused a licence may apply to the Administrative Decisions Tribunal for a review of that decision. The decision is a 'reviewable decision' having been subject to internal review pursuant to section 53 of the Administrative Decisions Tribunal Act 1997. 4 Section 12 of the Act sets out the circumstances in which the Director General must refuse to grant a motor dealers licence. Mr Trlin's application was refused on the basis that he failed to meet the requirements of Section 12(2) of the Act which provides, where relevant, as follows; An application for a licence made by a natural person shall be refused if it appears to the Director-General that: (f) the Applicant is not a person likely to carry on such a business honestly and fairly. . . . (g) the Applicant is in any other way not a fit and proper person to be the holder of a licence. 5 The expression 'fit and proper person' in the context of the issuing of a motor dealers licence has not previously been considered by this Tribunal. In the matter of Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry; "Whether a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objectives leading the legislature to regulate the industry." 6 In Haining the President also referred to the comments of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The finding of 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 or propriety are under consideration." Mason CJ referred to the breadth of the concept of 'fit and proper' and the need to have regard to the particular social importance of the industry which was being regulated. EVIDENCE 7 The Tribunal had in evidence before it the relevant documents provided by the Respondent pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. These are in the form of a copy of the Department of Fair Trading's licensing file in relation to the Applicant. Exemptions have been claimed under the Freedom of Information Act 1989 in relation to some documents. The Tribunal held a hearing in this matter on 18 August 1999 and the Applicant attended and gave evidence. He was assisted by a friend Mr Roach Mr Brian Daley gave evidence in support of Mr Trlin's application. The Respondent was represented by counsel and his legal officer. 8 The evidence upon which the Respondent made the decision is set out in point form in the Statement of Reasons of the Delegate who conducted the internal review. This provides, in part, as follows; * The Applicant, having certified that particulars specified in the application and all attachments, to the best of his knowledge, are true and correct in every detail, failed to disclose certain particulars. Evidenced by Part 1 of the Application showing the answer box for "No" marked with and "X" for each of the following questions: Has any individual Applicant, Director, Manager, Partner or Corporation nominated in this application, either in NSW or elsewhere: A. previously applied for an authorisation, whether it be described as a licence or certificate of registration under any act relating to the regulation of any business trade or profession? B. had any application withdrawn refused , or a licence cancelled? C. had any licence granted which is no longer in force? D. been investigated ( or being investigated ) which may result in disciplinary action? H. been known by any other name? I. had their estate assigned for the benefit of creditors or been declared bankrupt? * The Applicant applied for a Motor Dealers licence in Queensland in 1987. * The Applicant applied for a second-hand dealers licence(App No 29906) on June 1997. * The Applicant was a director of 4 companies which, in 1986 entered into a Deed of Undertakings under s20J of the Act, with the then Commissioner for Consumer Affairs, in relation to their conduct as licensed motor dealers. * The Applicant, as a Director of John L Pty Ltd, was disqualified from holding a licence or being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required under the Act for a period of 5 years from 14 January 1987 as evidenced by a letter dated 30 December 1986 to the Applicant form the then Commissioner for Consumer Affairs. Subsequently, the Commercial Tribunal of New South Wales at Sydney dismissed an appeal by the Applicant against the then Commissioner's decision to cancel the applicant's licence. The orders cancelling the motor dealers licence and disqualifying the Applicant took effect on the 17 March 1987. * The Applicant was a director of 3 companies ( Trueline Motors Pty Led, Galaxy Motors Pty Led and Lease Acceptance Pty Ltd) whose licenses were cancelled under the Act; and were required to surrender licenses as a consequences of failing to comply with requirements of the Act. * The Applicant was a declared bankrupt from 1991-1994. * The Applicant was prosecuted in 1996 for carrying on business as a motor dealer without being the holder of a motor dealers licence. This matter was found to have been proved but did not proceed to conviction pursuant to s556A of the Crimes Act. * Information is available to this Department that indicates, that between 1994 and 1998 the Applicant carried on business without being the holder of a motor dealers licence. A Roads & Traffic Authority Extract shows that 34 vehicles were disposed of in the name of the Applicant in that period. * The Applicant has been known by, or allowed himself to be know by other names. This is evidenced by the application for a second-hand dealers licence (App No. 29906) on 13 June 1997 in the name of John Luke Trlin. The application for the full dealers licence in the name of John Trlin. The application has been known as John Louis Trlin as a director of the 4 previously mentioned companies as evidenced by an extract from the Departments Business Licensing System used for maintaining a register of licences under the Motor Dealers Act 1974. The Applicant was a declared bankrupt from 1991-1994 in the name of John Louis Trlin. The Departmental report indicates associated use of the names John David Prlin and David John Trlin.