Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fast Truck Repair Pty Ltd v Commissioner for Fair Trading [2017] NSWCATOD 7 Hearing dates: 23 December 2016 Date of orders: 12 January 2017 Decision date: 12 January 2017 Jurisdiction: Occupational Division Before: C Ludlow, Senior Member Decision: The decision under review is affirmed. Catchwords: OCCUPATIONAL LICENSING – Motor vehicle repairers – fit and proper person Legislation Cited: Motor Dealers and Repairers Act 2013 Administrative Decisions Review Act 1997 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 Farah v Director General Department of Finance and Services [2014] NSWCATAP 23 Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v State of NSW (No.2) (1955) 93 CLR 127; [1955] HCA 28 Law Society of NSW v Bannister, unreported Court of Appeal, 27 August 1993, BC930181 Saleh v Commissioner for Fair Trading [2015] NSWCATOD 68 Category: Principal judgment Parties: Fast Truck Repair Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: J Coss (Respondent) M Zhao (Applicant) Solicitors: David Kam and Co (Applicant) File Number(s): 1620239 reasons for decision 1. This is an application for review of a decision by the Commissioner of Fair Trading to refuse the applicant, Fast Truck Repairs Pty Ltd ("Fast Truck Repairs"), a motor vehicle repairer's licence under s 25(3) of the Motor Dealers and Repairers Act 2013 ("the Act"). The relevant legislation 1. The Act defines "motor vehicle repairer" as: 6 Motor vehicle repairers (1) In this Act, motor vehicle repairer means a person who carries on the business of carrying out repair work on motor vehicles. (2) In this Act, repair work means work of a class or classes prescribed by the regulations for the purposes of this section. (3) A person is not a motor vehicle repairer if the person carries out repair work only in the course of employment with another person or on the person's own motor vehicle. (4) This Act does not apply to any part of the business of a motor vehicle repairer that involves repairs that are not repair work. 1. "Carrying on a business" includes carrying on the business in partnership or by an employee, contractor, agent or other person (s 7). 2. Motor vehicle repairer's licences may be granted by the Secretary (which includes the Commissioner for Fair Trading) (s 20). Section 25 of the Act provides: 25 Grounds for refusal—licences other than tradespersons' certificates (1) This section applies to motor dealers' licences, motor vehicle repairers' licences and motor vehicle recyclers' licences. (2) The Secretary must not grant a licence to an individual if the Secretary is satisfied of any of the following: (a) that the applicant is not over the age of 18, (b) that the applicant is not a fit and proper person to hold a licence, (c) that the applicant is a controlled member of a declared organisation, Note. Controlled members are prohibited from applying for licences—see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (d) that the applicant is an undischarged bankrupt, (e) that the applicant does not have the qualifications, if any, prescribed by the regulations for the purposes of the licence concerned, (f) that the applicant has (as an adult) been found guilty, within the preceding 10 years, of a motor vehicle stealing offence. (3) The Secretary must not grant a licence to an applicant that is a body corporate if the Secretary is satisfied of any of the following: (a) a director or person involved in the management of the body corporate, or any other person who appears to the Secretary to have control or substantial control of the body corporate, would, if the director or person applied for the licence as an individual, be prohibited by this section from being granted the licence, (b) the officers of the body corporate do not have the qualifications, if any, prescribed by the regulations for the purposes of the licence concerned, (c) the reputation of the body corporate is such that it is not a fit and proper person to hold a licence. (4) The Secretary must not grant a licence to any applicant, if the Secretary is satisfied of any of the following: (a) that the applicant is not likely to carry on the business for which the licence is sought honestly and fairly, (b) that the carrying on of the business at any place to which the application for the licence relates is unlawful for any reason. (5) The Secretary may refuse to grant a licence to an applicant if the Secretary is satisfied of any of the following: (a) that a close associate of the applicant is not a fit and proper person to hold a licence, (b) that there is another licence in force in relation to the whole or a part of a place of business to which the application for the licence relates. (6) In this Act: motor vehicle stealing offence means an offence of, or relating to: (a) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or (b) receiving, or unlawful possession of, a motor vehicle within the meaning of Division 5A of Part 4 of the Crimes Act 1900 or a motor vehicle part. Note. Section 18 of the Licensing and Registration (Uniform Procedures) Act 2002 contains the power to determine a licence application. 1. Section 27 provides: 27 Criteria for being fit and proper person to hold a licence (1) In determining whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the Secretary may have regard to any of the following: (a) whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere), (b) whether proceedings for such an offence have been commenced against the applicant but have not been finally determined, (c) whether the applicant has been convicted of an offence against this Act or the regulations or another Act administered by the Minister, (d) whether the applicant has failed to pay any contribution or other payment required to be paid by the applicant to the Compensation Fund under this Act. (2) An applicant is not a fit and proper person to be the holder of any licence if the Secretary has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the applicant that: (a) the applicant is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012, and (b) the nature and circumstances of the applicant's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the applicant is granted a licence. (3) The Secretary is not, under this or any other Act or law, required to give any reasons for refusing an application for a licence or taking disciplinary action against a person because of subsection (2) to the extent that the giving of those reasons would disclose any criminal intelligence. (4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence. Refusal of the application 1. The director of Fast Truck Repairs is Mr Hai Lun Li. Mr Li is currently licensed as a motor vehicle mechanic. Fast Truck Repairs applied for a motor vehicle repairer's licence on the 8th of June 2016. 2. The application form required answers to a number of questions, including whether the applicant or any Partner, Director or Manager of the applicant had been found guilty within the preceding ten years, of any offence. The applicant did not disclose any convictions. 3. It was stated on the form that by signing the form, Mr Li as director of the applicant authorised NSW Fair Trading to make any inquiries and receive and disclose any information which was relevant to the applicant's eligibility to hold the licence, and certified that the particulars specified in the application were, to the best of his knowledge, true and correct in every detail. 4. While Mr Li is a director, he also nominated himself as the manager of the business of the licensee. The form also stated: "NSW Fair Trading will conduct a criminal history check in respect of the Applicant, all Directors, Partners and Managers." 1. A criminal record check revealed a number of convictions. On 28 June 2007 Mr Li was convicted in the Local Court of the offence of "Give a false name" and was fined $100 plus court costs. 2. On 24 March 2009 Mr Li pleaded guilty to and was convicted of the offences of stating a false name/address to an authorised officer contrary to s 171(20(b) of the Road Transport (General) Act 2005 for which he was fined $200; driving with an expired licence for which he was fined $400 plus $73 costs; and possessing an article resembling an Australian driver's licence and calculated to deceive contrary to s 23(1)(b) of the Road Transport (Driver Licensing) Act 1998, for which for which the maximum penalty was 20 penalty units. he was fined $800. He was also disqualified from holding a driver's licence for 6 months. 3. On 9 August 2016 the respondent wrote to Mr Li regarding Fast Truck Repair's application, requesting an explanation of "a conviction for Hai Lun Li in March 2009." The nature of the conviction was not specified in the correspondence. Mr Li was not asked to explain the conviction in 2007. 4. On 9 August Mr Li emailed the respondent as follows: "There was someone using my driver's licence to drive and caused my licence to be disqualified in 2000. I went to RTA to complain about this matter, but nobody looked after me. I still kept driving because of my family and working. The police detected me on road, and I went to the court. I paid the fine for driving without licence. But I brought this case to the court in 2009, I won the case in the court at Downing Centre City. I got my driver's licence back in 2010. All above are the details for the conviction with police, the reason I answer NO in this application is I thought they have already removed the conviction because I have won the case finally." 1. The police fact sheet was tendered before the Tribunal without objection. This recorded that Mr Li produced a driver's licence when he was stopped on 27 February 2009 by police for random breath testing. According to the fact sheet, the licence which he produced showed his photograph but the name of another person. Police suspected from a visual inspection of the licence that it was fraudulent. 2. According to the fact sheet, Mr Li admitted to paying a customer of the workshop where he worked $500 to obtain the driver's licence for him. He admitted a prior disqualification from driving and stated that because he owed $6-7000 in fines, he was unable to renew his licence at the RTA now that he was no longer disqualified. He said that he needed a driver's licence for his job to road test vehicles and he had obtained the licence about a year ago. 3. The respondent refused the application of Fast Truck Repairs for a motor vehicle repairer's licence on the basis that Mr Li, as the sole director of Fast Truck Repairs, did not disclose his convictions on the application but certified that the application was true and correct in every detail to the best of his knowledge. The Commissioner considered that the offences involved fraud or dishonesty. His non-disclosure of the offences led the Commissioner, as the delegate of the Secretary, to be satisfied that he was not a fit and proper person to hold a motor vehicle repairer's licence. Section 25(3)(a) requires that the Secretary must not grant a licence to an applicant that is a body corporate if the Secretary is satisfied that a director or person involved in the management of the body corporate would, if the director or person applied for the licence as an individual, be prohibited by s 25 from being granted the licence. 4. Mr Li sought an internal review of the decision. A letter written by his solicitors stated: "When Mr Li filled in the application, he completely forgot the convictions he received in 2007 and 2009 respectively. When queried why he answered "No" to the disclosure question, Mr Li honestly thought the convictions had been overturned because he lodged an application at the Downing Centre Local Court to dispute the validity of the cancellation of his drivers' licence. … Mr Li only remembered the convictions after he got a copy of the court result on August 2016 from the Newtown Local Court… he did not intentionally withhold disclosure with respect to the convictions." 1. The internal review confirmed the original decision on 4 October 2016. Material before the Tribunal 1. It was not in dispute that Mr Li had no further convictions since 2009. 2. I had before me the s 58 documents which included the material on which the Commissioner relied; also a statement of Mr Li with annexures including two character references; and written submissions of both parties. Evidence of Mr Li 1. Mr Li tendered a statement of evidence and gave oral evidence by an interpreter. Mr Li stated that he was 45 years of age and the sole director of Fast Truck Repair. He had been a licensed motor mechanic since 18 August 1998. He stated that when he filled in the application for the licence he "completely forgot" the convictions he received in 2007 and 2009. When notified by Fair Trading he thought the conviction had been overturned some years ago when he disputed the cancellation of his driver's licence. 2. With regard to this, he said: "When I received a written query from Fair Trading dated 9 August 2016 in relation to my conviction in March 2009, I honestly thought the conviction had been overturned because I lodged an application at the Downing Centre many years ago to dispute the validity of the cancellation of my driver's licence. I couldn't remember how many years ago that was. I remembered I got the judgement for me. I realise now that I mistook the convictions in 2009 for the dismissal in June 2007." He attached a copy of the advice of court result showing that he had pleaded not guilty to a charge of "Drive while disqualified from holding a licence" and on 28 June 2007 this charge was dismissed. 1. He said that he was not guilty of the 2007 offence as someone had used his name falsely on that occasion. When asked during cross examination why he did not disclose the convictions, he said that firstly his English was not good, and secondly he believed he was not guilty of the 2007 matter and was confused about the 2009 matters. He said he understood now that the offences committed in 2009 were very serious under Australian law. 2. He said that on 18 August he went to the Local Court to enquire about his past convictions and said that: "Only then did I realise that I got three other convictions entered by the Newtown Local Court on 24 March 2009. I did not remember these convictions at the time of my application to Fair Trading because they happened more than seven years ago." 1. He said he did not intentionally withhold the information about his convictions. Character references 1. Mr Li provided two character references. The persons were not available to give evidence. They were aware of Mr Li's convictions. One reference was from a Wenjie Zhang, a Chinese Medicine Practitioner, who stated he met Mr Li first in 1993. He described Mr Li as a person who showed diligence and professionalism in his work as a motor mechanic and was honest. He believed that he was a law abiding and hard working man now. 2. The other reference was from Dawson Su, an accountant who regularly has his car serviced by Mr Li. The reference states that Mr Li is a professional and honest person and has shown deep remorse for the offences he committed. Respondent's submissions 1. Mr Coss for the respondent submitted that whether a person is fit and proper involves an assessment of their honesty, knowledge and ability (Hughes and Vale Pty Ltd v State of NSW (No. 2) [1955] HCA 28; (1955) 93 CLR 127). In the respondent's submission, Mr Li lacks the honesty and ability required to hold a motor vehicle repairer's licence. 2. The respondent contended that Mr Li's non-disclosure was deliberate and the fact sheet showed a lack of fitness and propriety on his part. He had a prior disqualification from driving while he was an employed motor mechanic and owed several thousand dollars in fines which he was unable to pay at that time. His solution to this problem was to obtain a fraudulent driver's licence and he continued to use it for about 12 months until detected by police. 3. The respondent submitted that this showed that he was prepared to be dishonest in order to get around the licencing regime. The respondent also submitted that the Tribunal should not accept that Mr Li had honestly forgotten his convictions as this was inherently improbable. 4. The respondent submitted that his ability was also in question based on his behaviour. 5. It was submitted that motor vehicle repairers work with a high degree of autonomy, deal with a complex market environment and with insurance companies. They are expected to quote and carry out repairs honestly and ethically. 6. While it had been some time since the convictions, Mr Coss submitted that the mere passage of time does not of itself indicate a change of character, in reliance on Ex Parte Tzinliolis: Re The Medical Practitioner's Act [1966] 1 NSWR 357; that "clear proof" is required to show that serious deficiencies in his standard of conduct and attitudes have changed. Applicant's submissions 1. Mr Zhao for the applicant submitted that the aim of the Act is to protect consumers and that none of Mr Li's past convictions were related to misleading or dishonest conduct regarding consumers. He referred to the discussion of "fit and proper" by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [36]: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur." 1. It was submitted that Mr Li was not given procedural fairness by the Commissioner because he was not given details of the 2009 convictions. However Mr Li has had the opportunity to fully address those matters in these proceedings. 2. It was pointed out that the offences occurred seven and nine years ago and it could not reasonably be concluded that he intentionally withheld the information. 3. He was re-issued a driver's licence in April 2010. It was submitted that the was highly unlikely to reoffend and the conduct had no relevance to his activities as a motor mechanic/repairer. 4. It was submitted that he had been a licensed motor mechanic since 1998 and it was his only livelihood. It was stated that the business would create employment and contribute to the community, however no evidence was tendered in support of this. 5. The cases of Saleh v Commissioner for Fair Trading [2015] NSWCATOD 68 and Farah v Director General, Department of Finance and Services [2014] NSWCATOD 112 were cited. In those cases persons with convictions in the past (6 years and almost 20 years respectively) which did not involve the industry concerned were found to be fit and proper to hold a licence. Submissions in reply 1. Mr Coss submitted that the decision in Saleh should be distinguished as Mr Saleh was applying for a mechanic's licence, not a motor vehicle repairer's licence, and the latter involved more responsibility and ability. Consideration by Tribunal 1. Under s 27(1)(a) of the Motor Vehicle Repairer's Act it is relevant to whether an applicant is a fit and proper person to hold a motor vehicle repairer's licence, if the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty. The evidence before the Tribunal is that Mr Li was convicted in 2007 and 2009 of the offences of stating a false name/address to an authorised officer. In 2009 he was convicted also of driving with an expired licence and possessing an article resembling an Australian driver's licence and calculated to deceive. The nature of the offences alone make clear that they involve dishonesty. All were within the 10 year period. 2. The respondent submits that this, together with the failure to disclose his convictions, means that Mr Li is not fit and proper to hold the licence. The respondent submits that his explanation for the failure to disclose is implausible. 3. I find Mr Li's explanation somewhat dubious as he claims that he forgot the 2007 and 2009 offences, but remembered having his licence cancellation set aside. However, Mr Li admitted he only recently realised the offences were serious and English is not his first language. I find rather that he was negligent and careless in completing the form. However, his negligence in ensuring that the information he provided was truthful and accurate and the fact that he could confuse the offences with a cancellation, does not reflect well on his ability or knowledge. 4. The character evidence supports a finding that Mr Li is of good character. However in Law Society of NSW v Bannister Sheller JA, delivering the judgment of the Court, observed: "... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or Tribunal in determining whether it can be confident that there will not be a repetition." (unreported Court of Appeal, 27 August 1993, BC930181, cited in Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57at [16]). 1. I am required to decide what the correct and preferable decision is having regard to the material before the Tribunal (s 63, Administrative Decisions Review Act 1997). The issue of whether Mr Li's past criminal conduct renders him not fit and proper to hold the licence, requires consideration of the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation (Grenfell v Director General of the Department of Finance and Services). in my view the factors in Mr Li's favour are: 1. The convictions are seven and nine years in the past respectively. 2. They are not at the high end of seriousness and were punishable by a fine only. 3. Mr Li has no subsequent convictions. 4. He has provided two favourable character references from customers. 5. He has been candid about his convictions in these proceedings. 1. The factors contrary to Mr Li's being fit and proper are: 1. The offences involved dishonesty, which is given particular emphasis in the Act. 2. He was negligent in filling out the application, which reflects poorly on his ability. 3. It is not in dispute that he paid someone to obtain a false licence and used this licence for about a year before being detected, in circumstances where he could not obtain a valid licence because of unpaid fines. This is not conduct which would be expected by a member of the public of a fit and proper motor vehicle repairer. 4. There is some evidence of good character, but a lack of evidence that he has taken action to reform, or take steps to ensure that such negligence will not occur again. 1. Mr Li is seeking a motor vehicle repairer's licence. There is authority for different treatment of a licence which involves more responsibility. In Grenfell v Director General of the Department of Finance and Services at [10-11], Judicial Member Molony said: "10. The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi -operator's licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with industry in which they will undertake that role. 11. Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle." 1. This case involved the previous Motor Vehicle Repairs Act 1980, but in Saleh it was also noted that the Tribunal's view of the matter might have been different, as suggested by Judicial Member Molony above, had the licence sought been one that involved business management skills (at [76]). 2. The mere passage of time since the offences is not sufficient to indicate a change of character and clear proof is required (Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357). 3. I am not satisfied on the evidence before me that Mr Li would discharge the necessary responsibilities appropriately such that would allow me to find that he is currently a person who is fit and proper to hold a motor vehicle repairer's licence. 4. In the circumstances, it is my view that the respondent has made the correct and preferable decision. Decision 1. The respondent's decision to refuse the applicant a motor vehicle repairer's licence is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2017