Khoury v Director-General, NSW Fair Trading [2015] NSWCATOD 64

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khoury v Director-General, NSW Fair Trading [2015] NSWCATOD 64 Hearing dates: 20 April 2015 and 11 June 2015 Decision date: 01 July 2015 Jurisdiction: Occupational Division Before: P Molony, Senior Member Decision: The decision of the Director-General to refuse Mr Khoury's application for a second-hand dealers licence under the Pawnbrokers and Second-Hand Dealers Act 1996 is confirmed. Catchwords: Pawnbrokers and Second-Hand Dealers – application for a second-hand dealers licence – applicant disqualified due to conviction for offences involving dishonesty recorded in past 10 years – whether to exercise the discretion to ignore those offences – discretion not exercised – decision affirmed Legislation Cited: Administrative Decisions Review Act 1997 Pawnbrokers and Second-Hand Dealers Act 1996 Cases Cited: Bek v Commissioner for Fair Trading [2004] NSWADT 149 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Category: Principal judgment Parties: Subhe John Khoury (Applicant) Director-General, NSW Fair Trading (Respondent) Representation: Solicitors: Fitzpatrick Solicitors Pty Ltd (Applicant) W Maynard, NSW Fair Trading (Respondent) File Number(s): 1520018

reasons for decision

Introduction 1. Mr Khoury has applied to the Tribunal for administrative review of a decision made on internal review by the Director-General of NSW Fair Trading to refuse him a second-hand dealer's licence under the Pawnbrokers and Second-Hand Dealers Act 1996. That decision was made on 11 December 2014. The director-general found that Mr Khoury was not a fit and proper person to hold a licence and was a disqualified person under section 8A(2) of the Act, because he had been convicted of an offence involving dishonesty which had been recorded in the last 10 years. There is no dispute about his convictions. 2. Mr Khoury was convicted at the Balmain Local Court on the 22 September 2010 of two counts of obtaining money by deception of a value greater than $5000 and less than $15,000. The circumstances leading to that conviction took place in November 2007. Mr Khoury was sentenced to imprisonment for nine months, which sentence was suspended on him entering a nine-month bond under section 12 of the Crimes (Sentencing Procedure) Act 1999. He was ordered to pay compensation of $6350. 3. The Director-General refused to exercise the discretion under section 8A(4) to ignore that conviction when considering Mr Khoury's application for a licence. That subsection provides: (4) Where subsection (2) or (3) provides that a determination may be made under this subsection in relation to an offence committed by a person, the Director-General may determine that the offence should be ignored for the purposes of this section on one or more of the following grounds: (a) the triviality of the acts or omissions giving rise to the offence, (b) the time that has passed since the offence was committed, (c) the offence was committed by the offender as a minor, (d) the subsequent good behaviour of the offender, (e) any other ground prescribed by the regulations. The Pawnbrokers and Second-hand Dealers Regulation 2008 does not make any provision authorised by s 8A(4)(e). 1. Mr Khoury argued that the Tribunal should exercise the s 8A(4) discretion in his favour, given that his last offence took place more than 7 years ago and his subsequent good behaviour, which was said to demonstrate that he is a changed man.