T & M Holdings Group Pty Ltd -v- Commissioner for Fair Trading [2004] NSWADT 230

CITATION: T & M Holdings Group Pty Ltd -v- Commissioner for Fair Trading [2004] NSWADT 230 DIVISION: General Division APPLICANT PARTIES: T & M Holdings Group Pty Ltd RESPONDENT Commissioner for Fair Trading FILE NUMBER: 043289 HEARING DATES: 16/09/2004 SUBMISSIONS CLOSED: 09/16/2004 DATE OF DECISION: 10/11/2004

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Fair Trading Act 1987 - Motor Vehicle Repairer - suspension of licence - Motor Vehicle Repairer - suspension of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Interpretation Act 1987 Motor Vehicle Repairs Act 1980 Rizen v Director General, Department of Fair Trading [2002] NSWADT 173 CASES CITED: El Masri v Director General, Department of Fair Trading [2002] NSWADT 257 George v Rockett (1990) 170 CLR 104 APPLICANT REPRESENTATION: C Bryett, solicitor RESPONDENT B Chalmers, solicitor ORDERS: Orders made on 21 September 2004: The Commissioner's decision to suspend T & M Holdings Pty Ltd's motor vehicle repair licence is affirmed.

Introduction 1 Mr Tony Liristis is the manager of T & M Holdings Group Pty Ltd, which trades as Kingsgrove Car Care Centre. The company has had a motor vehicle repairer's licence since 1 May 2003. Mr Liristis has been involved in the motor vehicle industry for almost 25 years. His father is the sole director of the company which employs four people. On 24 August 2004 the Commissioner for Fair Trading suspended the company's motor vehicle repairer's licence for 60 days. Short-term suspension is available when the Commissioner considers, among other things, that there is a danger that someone will suffer significant loss unless the business stops trading. The decision to temporarily suspend the licence, while the Commissioner considers whether to take more permanent action, arose mainly from complaints from customers about dishonest and unfair practices they said Mr Liristis was engaging in. 2 The Motor Vehicle Repair Authority, which regulates the industry, conducts an investigation if it receives more than three complaints about a business in a 12-month period. In this case the Authority received five complaints during the period from 1 May 2003, when the business first obtained a licence, and 24 August 2004. Two further complaints were received after the date the licence was suspended. Several of the people who complained had had their vehicles towed to T & M Holdings Pty Ltd after they had broken down on the M5 freeway. Many were not Mr Liristis' regular customers. 3 Mr Liristis maintains that the number of complaints that have been made is relatively small given the size of his business and that three of the five customers concerned have now settled or withdrawn their complaints. He provided a detailed response to each of the allegations made by the Commissioner. In his view the Commissioner's decision was not justified because, among other things, there are no reasonable grounds for concluding that anyone will suffer significant harm or loss if he continues to trade. He provided the Tribunal with a myriad of certificates, awards and references setting out his qualifications and attesting to his competence and character. Legal principles and issues 4 In order to suspend a licence, the Commissioner must be of the opinion that there are reasonable grounds to believe that: (a) a licensee has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and (b) it is likely that the licensee will continue to engage in that conduct, and (c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently. (Fair Trading Act 1987 s 64A(2).) 5 There is no doubt that a decision to suspend a licence is a "crushing blow" for the licensee (Rizen v Director General, Department of Fair Trading [2002] NSWADT 173 at [40]). Such a decision should only be taken where urgent action is necessary to avoid the danger of a person suffering significant harm, loss, or damage. Despite submissions from the parties to the contrary, in my view, the ordinary meaning of s 64A(2) is clear and there is no justification for considering extrinsic material, such as the Second Reading speech, in order to assist in ascertaining that meaning. (Interpretation Act 1987 s 34.) Neither is there any justification for reading into the provisions a requirement that the Commissioner only suspend a licence after unsuccessfully seeking undertakings from the licensee as to his or her future conduct. (See the discussion of this issue by O'Connor J in Rizen v Director General, Department of Fair Trading [2002] NSWADT 173; and El Masri v Director General, Department of Fair Trading [2002] NSWADT 257.) 6 The Tribunal's role is to determine whether the Commissioner has made the correct and preferable decision. The Commissioner need only have "reasonable grounds" for believing that each of the matters listed above have been met. There is no need for the Commissioner to believe with certainty that these matters exist as long as there are facts that are sufficient to justify his or her belief. (George v Rockett (1990) 170 CLR 104 at 116.) 7 In relation to the two complaints lodged since the suspension decision was made, those complaints constitute "relevant factual material" to which the Tribunal should have regard in determining whether the correct and preferable decision has been made. (Administrative Decisions Tribunal Act 1997 s 63(1).) The Tribunal offered Mr Liristis' representative the opportunity to obtain instructions in relation to those matters so that the principles of procedural fairness were met. Does conduct constitute grounds for suspension or cancellation? 8 The first requirement is that the Commissioner has reasonable grounds to believe that the conduct of the licensee constitutes grounds for cancellation. The Commissioner formed that opinion on three counts: · the repair work is below usual trade standards; ( Motor Vehicle Repairs Act 1980, s 42(1)(a)); · the licensee has failed to comply with the Motor Vehicle Repairs Act 1980 or Regulations or an order of the Consumer Traders and Tenancy Tribunal; (Motor Vehicle Repairs Act 1980, s 42(1)(d)); · the business is being carried on in a dishonest or unfair manner (Motor Vehicle Repairs Act 1980, s 42(1)(h)). Below usual trade standards 9 The Commissioner nominated the following matters as constituting a failure to comply with the usual trade standards: · fitting non-resistor instead of resistor spark plugs to Mr Dey's vehicle; · failing to replace the voltage regulator component in Mr Kohlrusch's vehicle resulting in the failure of the alternator; · fitting a spigot bearing to the transmission of Mr Kohlrusch's vehicle when such a bearing was not required to be fitted; and · failing to repair the engine of Mr Kohlrusch's vehicle to trade standards so that it continued to emit engine oil exhaust smoke. 10 Mr Liristis denied that he had failed to comply with the usual trade standards in relation to any of these matters. However, given the independent evidence that was available to the Commissioner of such failures, we find that he had sufficient factual basis to justify a belief that the usual trade standards had not been met. Failure to comply with legislation or with a CTTT order 11 The Commissioner alleges that Mr Liristis had failed to comply with the legislation or an order of the CTTT in the following respects: · failure to comply with six Notices to Produce issued under s 75B of the Motor Vehicle Repairs Act 1980; and · failure to comply with an order of the CTTT made on 27 August 2004 to immediately deliver Ms Ormsby's motor vehicle to her. 12 Mr Liristis admitted that he failed to comply with the Notices to Produce. His excuse was that his previous solicitor had advised him that the notices were invalid. Since changing solicitors he now sees that by taking the legal point in relation to the notices he may be seen as unco-operative. Mr Liristis undertook to provide the Authority with all the information he has within the next day or two. In my view his conduct, whether taken as a result of legal advice or not, constitutes a sufficient basis for the Commissioner to form a belief that he had not complied with the legislation. There is no doubt that he has failed to comply with a CTTT order. Business carried out in dishonest or unfair manner 13 The Commission alleged that the business was being carried out in a dishonest and unfair manner in that: · repairs were carried out on the vehicles owned by Mr Dey, Ms Ormsby, Mr Kohlrusch, Ms Ford, Ms Lucia and Ms Abdalla without their consent - Mr Liristis agreed that he asked Ms Ormsby to sign a blank authorisation and filled in the detail himself later; · Mr Liristis continues to refuse to allow the Authority to inspect Ms Ormsby's vehicle - Mr Liristis told the Tribunal at the hearing that he would return Ms Ormsby's vehicle to her despite having failed to comply with a CTTT order to do so and maintaining the vehicle was not under the company's care or control; · Mr Dey was charged for platinum spark plugs when the much less expensive conventional plugs had been fitted - Mr Liristis maintains that he fitted platinum spark plugs; · Mr Liristis attempted to harass Ms Ormsby by contacting her employer and accusing her of misusing telephone resources - Mr Liristis denies harassing Ms Ormsby; · invoices given to four of the complainants do not itemise the amounts for each component of the repair work undertaken – Mr Liristis maintains that he itemised the work sufficiently; · the amounts in Mr Dey's invoice are artificially inflated by up to 60% and "discounted" if paid within a certain time – Mr Liristis said that this was only done because Mr Dey had already taken his vehicle away; · at the voluntary mediation conducted by the Authority with Mr Liristis and Mr Kohlrusch, Mr Liristis served Mr Kohlrusch with a written demand for the payment of $1,787.50 alleged to be professional and business expenses of the company concerning its voluntary involvement in resolving Mr Kohlrusch's dispute - Mr Liristis says that this bill was not pressed. 14 Again, despite Mr Liristis' denial of some of these matters, these allegations provided the Commissioner with a sufficient factual basis to form the belief that the business was being carried out in a dishonest and unfair manner. Likelihood that licensee will continue to engage in that conduct 15 The second element about which the Commissioner must form an opinion is that it is likely that Mr Liristis will continue to engage in some or all of the conduct outlined above. Mr Liristis acknowledges having failed to comply with the CTTT order and the Notices to Produce but maintained until the hearing, that his non-compliance was justified. Mr Liristis' failure to acknowledge that any of his conduct was unfair or dishonest strongly indicates that he would continue to engage in that conduct. Similarly, the Commissioner had sufficient evidence, based on Mr Liristis' previous conduct and his failure to acknowledge any wrong doing, that he would continue to carry out repair work below the usual trade standards and/or without authorisation, fail to provide adequate details of repair work carried out, attempt to charge artificially inflated prices which are then "discounted" if paid within a certain time and generally intimidate his customers. 16 That inference can be drawn not only from Mr Liristis' conduct prior to the suspension notice but from the fact that the Authority received a complaint from Mr Mei dated 31 August 2004, a week after the suspension notice had been issued. Mr Mei complained that Mr Liristis attempted to charge him $95.00 for a pressure check that his mechanic told him was a 10 to 15 minute job. Mr Mei contacted the Authority because he was unhappy with Mr Liristis' conduct and was told that an officer had visited Mr Liristis that day and had been assured that there would be no charge for the work done on Mr Mei's girlfriend's vehicle. When Mr Mei went to collect the car he says that Mr Liristis told him that he was only charging him $95.00, rather than the full price of $160.00 to $200.00, because he felt sorry for him. Mr Mei then told Mr Liristis that he had been in touch with the Authority. Mr Liristis still insisted on Mr Mei paying the $95.00. Eventually Mr Liristis left the premises and Mr Mei arranged for his girlfriend's vehicle to be towed away. 17 Despite the fact that Mr Liristis denies this version of events, there are still reasonable grounds to believe that it is likely that he will continue to engage in intimidating, dishonest and unfair conduct of this kind. Need for urgent action 18 The final element that needs to be satisfied is that there are reasonable grounds to believe that there is a danger that someone may suffer significant harm, or significant loss or damage, as a result of the licensee's conduct unless action is taken urgently. Urgent action is justified because there is evidence that Mr Liristis has continued to engage in unfair and dishonest conduct even after the suspension notice was served. Mr Liristis' conduct has already resulted in Ms Ormsby having to go to the CTTT to obtain an order that she need not pay for unauthorised repair work and that her vehicle be returned to her. Mr Liristis has still not complied with that order even though he belatedly assured the Tribunal that he would do so. Ms Ormsby and others have suffered significant loss as a result of Mr Liristis' conduct and so will other people if Mr Liristis continues to conduct himself in the manner alleged by several of his previous customers. Order 19 The Commissioner's decision to suspend T & M Holdings Pty Ltd's motor vehicle repair licence is affirmed.