Trlin -v- Director General, Department of Fair Trading [2000] NSWADT 192

CITATION: Trlin -v- Director General, Department of Fair Trading [2000] NSWADT 192 DIVISION: General Division APPLICANT John Louis Trlin PARTIES: RESPONDENT Director General, Department of Fair Trading FILE NUMBER: 003257 HEARING DATES: 03/11/2000 SUBMISSIONS CLOSED: 12/05/2000 DATE OF DECISION: 12/29/2000

BEFORE: Britton A - Judicial Member APPLICATION: Motor Dealer - grant of licence - Motor Dealers Act - motor dealer - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Motor Dealers Act 1974 John Trlin v Director General, Department of Fair Trading [1999] NSWADT 72 Toleafoa (No 2) v Commissioner of Police, [2000] NSWADT 48 Lockyer v Ferryman ((48) (1877) 2 App Cas 519 Midland Metals Oveseas Ltd v Comptroller-General of Customs, (1991) 30 FCR 87 CASES CITED: Re Eimberts and Repatriation Commission (1996) 45 ALD 716 Comcare v Grimes (1994) 33 ALD 548 Jolly v Fed Commossioner of Taxation (1935) 53 CLR 206 Mobil Oil Australia Pty Ltd v Fed Commissioner of Taxation (1962-3) 113 CLR 475 Commonwealth of Australia v Sciacca(1988) 17 FCR 476 Blair v Curran (1939) 62 CLR 464 APPLICANT REPRESENTATION: T Moore, barrister RESPONDENT C Lonergan, barrister ORDERS: That the application be dismissed.

1 This is an application by Mr John Trlin for a review of a decision by the Director-General of the Department of Fair Trading ("the administrator") to refuse him a motor dealer's licence pursuant to s.12(2) of the Motor Dealers Act, 1974 ("the Act") on the basis that it appeared to the administrator that Mr Trlin was not a person "likely to carry on a business honestly and fairly" and was "not a fit and proper person to be the holder of a licence". 2 In 1998 Mr Trlin applied to the administrator for a motor dealers licence. By way of notice dated 14 December 1998 the administrator advised of his decision to refuse that application. An internal review affirmed that decision. On 21 May 1999 the applicant applied to this Tribunal for a review of the administrator's decision. In a decision handed down on 31 August 1999 the Tribunal upheld the administrator's decision: John Trlin v Director General, Department of Fair Trading [1999] NSWADT 72 ("the 1999 Tribunal decision") . 3 The applicant lodged an appeal against the Tribunal decision, however by way of letter dated 19 January 2000 that appeal was withdrawn. 4 The applicant made a fresh application for a motors dealers licence on 3 February 2000 ("the 2000 application"). By notice dated 30 March 2000 the administrator advised of his decision to again reject the Mr Trlin's licence application. 5 When this matter was set down for directions, Deputy President Hennessy raised the question of whether the doctrine of res judicata applies or should apply to it. I also raised the question with counsel when the matter came before me. As a result, the parties made submissions in relation to this preliminary issue and I reserved my decision. The applicant's submissions 6 Mr Moore, for the applicant, submits that the case before the Tribunal is not a mere reventilation of the matter dealt with by the Tribunal in 1999; there has been a material change in the circumstances since then. The Tribunal stands in the shoes of the decision-maker but deals with the case on the facts, which obtain at the time of the hearing of the application. 7 He submits that the material change in circumstances is that the applicant has raised with the Department on a number of occasions his willingness to accept conditions upon any licence granted to him, and in fact has gone further in proposing certain conditions which the administrator may be minded to impose upon the grant of a licence. This option of a conditional licence being granted was not raised at the previous hearing in 1999 by either party. 8 Mr Moore also argues that it would be premature to terminate the hearing at this stage without a full hearing on the merits because "the consequences of a second rejection by the Tribunal (on whatever basis) are likely to be fatal to any attempts for the applicant to obtain a licence in future" and because "it is axiomatic that the licensing process is protective and not punitive". 9 He also maintains that, as a matter of fairness, Mr Trlin ought be granted a full hearing now because on the last occasion he was unrepresented and therefore disadvantaged. Shoulder to shoulder with this proposition is an argument that an application to this Tribunal should only rarely be dismissed on the basis that they are misconceived or lacking in substance. It is put that the Tribunal may be in a position to properly assess whether the application is misconceived or lacking in substance at the conclusion of the applicant's case, but that it would be premature to dismiss the appeal before hearing from him. 10 Mr Moore suggests that the Tribunal is not bound by previous findings of fact. Further, he argues that it is not bound by the doctrine of res judicata as it is not bound by the rules of evidence. The respondent's submissions 11 Mr Lonergan, for the respondent, submits that it would be appropriate to dismiss the appeal at this stage, pursuant to s.73(4)(h) of the Administrative Decisions Tribunal Act 1997, ("the ADT Act") on the basis that the 2000 application is lacking in substance and is misconceived: it is, in effect, simply a re-run of the 1999 application. He argues that the material issues dealt with by the Tribunal in 1999 remain unchanged and that the res judicata principle applies. The legal principles: Res Judicata, Issue Estoppel and s.73(5)(h) 12 Both parties have referred me to a number of authorities. I have not referred to them in summarising the opposing submissions but have read and considered all the authorities to which I have been taken. I will only refer to those authorities and legislative provisions here which I consider to be a particular significance in arriving at my conclusions. 13 In Toleafoa (No 2) v Commissioner of Police, [2000] NSWADT 48 [at 28-29] the Tribunal held: A classic statement of the principles underlying the doctrine of cause of action estoppel was set out by Lord Blackburn in Lockyer v Ferryman ((48) (1877) 2 App Cas 519 at 530): The object of the rule of res judicata is always upon two grounds – the one public policy, that is the interest of the State that there should be an end to litigation, and the other, the hardship upon the individual, that he should be vexed twice for the same cause. Normally the Tribunal should not allow the re-litigation of matters already decided between the same parties in a competent court. However, the Tribunal should consider an issue if there is good reason to do so. Such reasons include where it is the intention of the legislation that the Tribunal make another decision, where the first decision was not final or where there has been a change in circumstances since the first decision. 14 In Midland Metals Oveseas Ltd v Comptroller-General of Customs, (1991) 30 FCR 87, Hill J considered the question of whether the Commonwealth Administrative Appeals Tribunal was bound by the rules relating to issue estoppel and concluded that it was not, because it was an administrative body, not a judicial one, exercising an administrative function within the executive branch of government. ( See also Re Eimberts and Repatriation Commission (1996) 45 ALD 716; Comcare v Grimes (1994) 33 ALD 548; and further, on the administrative nature of the Tribunal, Jolly v Fed Commossioner of Taxation (1935) 53 CLR 206 at 214; Mobil Oil Australia Pty Ltd v Fed Commissioner of Taxation (1962-3) 113 CLR 475 at 502.) 15 Whether the Tribunal is bound to apply the rules of res judicata and issue estoppel or not, there are obviously strong public policy reasons why the rules ought generally be applied. But what does that mean? In Commonwealth of Australia v Sciacca(1988) 17 FCR 476 (at 478) the Full Court of the Federal Court noted: The mere circumstance that a finding of fact has been made in earlier proceedings between parties does not lead to the result that there is an issue estoppel as to that fact in later proceedings between the same parties. An issue estoppel will only arise in relation to what Dixon J (as he then was) described in Blair v Curran (1939) 62 CLR 464 at 532 as "those ultimate facts which form the ingredients of the cause of action, that is, the title to the right established." 16 It appears to me that, as this Tribunal is administrative in nature (although it operates in a quasi-judicial fashion), it is not strictly bound by the rules of res judicata and issue estoppel. Nonetheless, as was said in Toleafoa, good reason must be shown for the Tribunal to depart from the general practice of prohibiting the relitigation of facts and questions of law, which have already been decided. 17 Section 73(5)(h) of the ADT Act provides: (5) The Tribunal: (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. 18 In effect s .73 (5) (h) allows the Tribunal to safeguard its own process from conscious or unconscious abuse by litigants whose causes of action are frivolous, vexatious, misconceived or lacking in substance. In general terms, an application which is brought on the same grounds as an application which has been previously decided, and which raises no new issues, will fall into one or more of those categories and will not be permitted to proceed. Conclusions 19 Before dealing with the arguments of more significance, I would like to dispose of one of Mr Moore's arguments briefly. He maintains that a second rejection of an application is likely to be fatal to any future application. It is open to the appellant to withdraw his appeal at this stage if he is fearful of such a consequence, but, for reasons, which I will give below, I do not accept the argument. In this jurisdiction, we operate independently of the administration of the Department. I cannot speak for the DG, but this Tribunal does not operate on the basis of "two strikes and you're out". 20 The real issue now for determination is whether there is good reason to allow the case to go to a full hearing. While Toleafoa did not provide a comprehensive or exclusive list of matters which might be allowed to proceed, it is a useful starting point. Here we can ask whether it is the intention of the legislation that the Tribunal can make another decision, whether the first decision was not final or whether there has been a change in circumstances since the first decision. It is in relation to the last question that Mr Moore really mounts his argument. 21 Mr Moore submits that the previous decision is not binding (with which I agree) because the circumstances have changed. The second leg of the argument is more difficult to accept. 22 The questions for decision ultimately are whether or not Mr Trlin is a fit and proper person to hold a dealer's licence, and whether he is likely to conduct his business in an honest and fair way. These questions were decided in 1999 by this Tribunal on the basis of an examination of Mr Trlin's extensive history in the motor dealing industry. It is noted that he has been the subject of many complaints by consumers over the years and the Department and its predecessors have had lengthy dealings with him. 23 Mr Moore does not argue with the findings made by the Tribunal as such, but says, in effect, that had the option of a conditional licence been proposed and considered by the Tribunal, a different result may have been reached. He goes further to say that if there is a chance, even the remotest likelihood, that the applicant could succeed the Tribunal ought not, on the authorities, dismiss the application. 24 While I accept the correctness of the argument, so far as it goes, I think, with respect, that this argument is misconceived. The ultimate question is one of the applicant's honesty, fairness and fitness to trade with the public. The motor business is regulated by government so that consumers may have reasonable confidence that the persons they deal with (and to whom they pass large amounts of money for goods such as motor cars) will treat them fairly and honestly and will stand behind the products they sell. It is a question of trust. If a person demonstrates that he or she cannot be trusted, and so loses the right to hold a licence, it is for him or her to undertake measures to positively demonstrate trustworthiness and a determination to abide by the law and ethical code of the relevant industry or concern. 25 In respect of Mr Trlin, nothing has been put to the Tribunal suggesting that there is evidence conclusively demonstrating that he is a changed, rehabilitated man. All that is put is that he is willing to subject himself to conditions, that he is inviting the Department to supervise him in future. This is rather like suggesting that a dog which bites strangers be muzzled – it is not evidence that the dog's character or propensity for biting has changed, merely that its owner is willing to incapacitate it. In Mr Trlin's case, the issue for the Tribunal in 1999 was not whether he could be constrained so as to force his obedience to the law and ethical codes but was a question of character. And so it remains. There is no new issue before us. 26 In my opinion, whether or not Mr Trlin is willing to wear a metaphorical muzzle, nothing of substance has changed in relation to the 1999 finding that he was not a person of good character. I see no good reason to relitigate that issue at this stage. It is open to Mr Trlin to undertake measures which will demonstrate that he has rehabilitated himself and can be trusted and to re-apply for a dealer's licence when he has that evidence. It is not, however, for this Tribunal to advise him on what he should do or for how long – that would pre-empt a future decision. 27 While I note that Mr Trlin was unrepresented in his 1999 application, I note that he has been represented by counsel in this application. All that is really put to me is that, had he been represented, he may have been able to put further material to the Tribunal then to do with a conditional licence. I do not doubt that Mr Trlin could have also used some skilled advocacy, but ultimately his history was against him and any counsel would have been hard-pressed to deal with his history of misconduct. Mr Moore's submissions are, in effect, a plea in mitigation but they do not derogate from the objective gravity of the misconduct which the Tribunal was satisfied had been proven in 1999. 28 In my view, this is simply an unmeritorious appeal from the 1999 decision, dressed up as a fresh application. The usual principles concerning the adducing of fresh evidence on appeal ought to apply. There must be a significant chance that a different verdict or outcome would result from the admission of the fresh evidence. In my opinion, there is not the remotest chance that a different conclusion would or should be arrived at in respect of the real issue – Mr Trlin's fitness to hold a licence. The application should be dismissed accordingly pursuant to s.73(5)(h) of the ADT Act on the basis that it is misconceived and lacks substance.