Derbas v Department of Services Technology and Administration [2011] NSWADT 227

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Derbas v Department of Services Technology and Administration [2011] NSWADT 227 Hearing dates: 18 and 19 October 2010 29 November 2010 27 January 2011 Decision date: 23 September 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed Catchwords: Motor vehicle repairer - disciplinary action - cancellation of licence and tradeperson's certificate - disqualification Legislation Cited: Administrative Decisions Tribunal Act 1997 Motor Vehicle Repairs Act 1980 Road Transport (Vehicle Registration) Act 1997 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (190) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 360 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Haining v Commissioner of Police, NSW Police [1999] NSWADT 6 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR Category: Principal judgment Parties: Ahmed Derbas - Applicant Department of Services, Technology and Administration - Respondent Representation: Counsel G Gillett (Applicant) M Nicoletti (Respondent on 27 January 2011) J Coss (Respondent on 18 and 19 October and 29 November 2010) File Number(s): 103037

Reason for decision

Introduction 1GENERAL DIVISION (S Higgins, Deputy President): The applicant, Mr Derbas, has worked in the motor vehicle industry for many years. He is a qualified spray painter and was the holder of vehicle tradeperson's certificate, under the Motor Vehicle Repairs Act 1080 (the MVR Act). For the last 8 years Mr Derbas was also the owner of a smash repair business, Rookwood Smash Repairs Pty Ltd. Mr Derbas operated that business under a vehicle repair licence also issued pursuant to the MVR Act. In conducting his smash repair business, through his company, Mr Derbas employed tradesmen who were the holders of a vehicle tradeperson's certificate which authorised them to do either panel beating work or spray painting. 2On 10 February 2010, a delegate of the Director-General determined to take disciplinary action against Mr Derbas under the MVR Act and cancelled his tradeperson's certificate and his vehicle repair licence. The delegate also determined to disqualify Mr Derbas, for a period of 10 years, 'from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required' under the MVR Act. In May 2010, on internal review, another delegate of the Director-General (the respondent) affirmed the decision to cancel Mr Derbas' vehicle tradeperson's certificate and his vehicle repair licence. The decision to disqualify Mr Derbas from holding a licence or being concerned in the direction, management or conduct of a smash repair business was also affirmed. However, the period of disqualification was reduced to 7 years. The grounds relied on by the respondent in the internal review determination were the following: (a) Mr Derbas carried on the business of a repairer in a manner that the repair work undertaken in connection with the business was below the usual trade standards (paragraph 42(1)(a) of the MVR Act); (b) The business related to Mr Derbas' licence was being carried on in a dishonest or unfair manner (paragraph 42(1)(h) of the MVR Act); and (c) Mr Derbas was not fit an proper to continue to hold a licence or certificate (paragraphs 42(1)(o) and 43(g) of the MVR Act). 3During the course of the hearing the solicitor for the respondent also raised the ground set out in paragraph 42(1)(g) of the MVR Act (i.e. Mr Derbas is probably receiving or dealing in stolen goods). 4Mr Derbas has not worked as a spray painter or operated a motor vehicle repair business since May 2010. 5The decision of the respondent was made following an extensive police investigation into an alleged organised motor vehicle re-birthing syndicate operating in Sydney. As a result of the investigations charges were laid against a Mr Raymond Tannous, Mr Shiel and others. No charges were laid against Mr Derbas in regard to the police investigation. However, a number of vehicles that were the subject of the police investigation were found to have had repair work undertaken at Mr Derbas' smash repair business. 6The vehicles in question were vehicles purchased interstate as a 'repairable write-off' by associates of Mr Tannous. It is alleged that only surface damage to the vehicle was repaired and that the structural damage, which was not visible to the customer or the RTA inspectors, was not repaired or was poorly repaired. 7A 'repairable write-off' is a damaged vehicle declared as such by the insurer where the cost of repairing the vehicle to a roadworthy standard outweighs the insured value of the vehicle. Where the damage is caused by a collision, the damage to the vehicle will often include structural damage. The majority of vehicles, the subject of this application were issued with an RTA Vehicle Defect Notice after they were seized by police and inspected by the RTA inspectors. The Notices related to major defects in the vehicles in that it was found that the repairs and adjustments did not to comply with the conditions prescribed under the Road Transport (Vehicle Registration) Act 1997 and the regulations made under that Act. 8It is the alleged failure by Mr Derbas, through his business, to repair or adequately repair structural damage to these vehicles, which is the essence of the allegations against him. Mr Derbas contends that he, or his tradesmen, repaired what the owner of the vehicle had asked to be done and that he, or his tradesmen, was not responsible for repair work not having been carried out or which was not carried to the manufacturers standard. 9Originally, in his application for review to the Tribunal, Mr Derbas sought review of the entire decision of the respondent. However, during the course of the hearing of his application, Mr Derbas, through his barrister, Mr Gillett, only pressed a review of the respondent's decision to disqualify Mr Derbas and to cancel his tradespersons certificate. In regard to the disqualification decision, Mr Derbas sought to have that reduced to 12 months. The respondent, through his solicitors, confirmed his decision to cancel Mr Derbas' tradeperson's certificate and the period of disqualification. 10The role of the Tribunal is to determine whether the decision of the respondent is the correct and preferred decision having regard to the applicable law and the relevant facts: see section 63 of the Administrative Decisions Tribunal Act 1997. For the reasons set out below, I have found that the decision of the respondent to cancel Mr Derbas' tradeperson's certificate and to disqualify him, for 7 years, from holding a licence or from being concerned in the direction management or conduct of a vehicle repairer business is the correct and preferred decision. 11I have set out in some detail the relevant law and the evidence before dealing with the specific issue as to whether Mr Derbas' tradesperson's certificate should be cancelled as it is primarily the manner in which Mr Derbas conducted his business which the respondent relies upon in support of his decision to cancel Mr Derbas' certificate.