Boutros v Director General Department of Finance and Services, New South Wales Fair Trading [2011]NSWADT 181

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Boutros v Director General Department of Finance and Services, New South Wales Fair Trading [2011]NSWADT 181 Hearing dates: 17 June 2011 Decision date: 28 July 2011 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed. Catchwords: Reviewable decision; whether mandatory statutory provisions; application for a licence where applicant previously permanently disqualified from holding a licence; Tribunal's jurisdiction Legislation Cited: Sections 12(2), 20D, 20E, 20F Motor Dealers Act 1974; section 63 Administrative Decisions Tribunal Act Cases Cited: Chase Oyster Bar Propriety Limited And Others V Hammo Industries Propriety Limited And Another [2010] NSWCA190; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; Category: Principal judgment Parties: Elias Anthony Boutros and Leila Boutros, (Applicants) Director General Department of Finance and Services, New South Wales Fair Trading (Respondent) Representation: Counsel S.J Stanton (Applicant) M Nicoletti (Respondent) File Number(s): 103299

Reasons for decision

Background 1This is an application for review of the decision of the Director-General to refuse to grant a licence to Mr and Mrs Boutros (the applicants) under the Motor Dealers Act 1974 (the MD Act). The decision dated 26 October 2010 was affirmed on internal review on 18 November 2010. 2It is not in dispute in this matter that at the time of the application the applicants were subject to disqualification from holding a licence: on 5 December 2002 the respondent made a decision to permanently disqualify the applicants from holding a licence, or being concerned in the direction, management or conduct of a business under the MD Act ("the disqualification decision"). Subsequently no application for review of the disqualification decision was pursued by the applicants. 3The application for review was listed for a preliminary hearing as to the Tribunal's jurisdiction on 17 June 2011. The parties' representatives filed detailed written submissions which were supplemented with oral submissions during the hearing. These will be further detailed below. 4By way of further background the following matters are noted. The applicants were the directors of the corporation called LLRAC Pty Ltd from 30 November 1993. LLRAC was licensed as a motor dealer under the MD Act from 26 November 1997. It is said by the Respondent that due to information received about breaches of relevant legislation by the applicants, LLRAC was served with a Notice of Suspension of Licence and during the period of suspension the respondent commenced prosecution action under the MD Act. In December 2002 the respondent served on LLRAC A Notice to Show Cause. On 10 September 2002 LLRAC was convicted in the Burwood Local Court of 33 counts of speedometer interference and failure to produce records, and penalties were imposed by the court. (This history, as summarised in the respondent's written submissions for the hearing, was not contested by the applicant during the proceedings: the Tribunal makes no findings in relation to this history for the purpose of the current proceedings). On 5 December 2002 the respondent served the applicant and LLRAC with a determination permanently disqualifying LLRAC and the applicants from holding a licence or being concerned in the direction, management or conduct of the business under the MD Act. No application for review of the decision of 5 December 2002 was made by the applicants within relevant time periods as prescribed by legislation. During the hearing the Tribunal was informed that the applicants had, previous to applying for the licence the subject of the current review proceedings, applied to this Tribunal for an extension of time to review the disqualification decision, however, the applicants had decided to withdraw that application. The Tribunal was told that the applicants then proceeded to make the application for a licence which is the subject of the decision in the current review proceedings.