Abalana Pty Ltd v Business Licensing Authority - [2000] VSC 424

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 7119 of 2000

ABALANA PTY LTD (ACN 059 119 336)	Plaintiff
v
BUSINESS LICENSING AUTHORITY	Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2000
DATE OF JUDGMENT:	19 October 2000
CASE MAY BE CITED AS:	Abalana Pty Ltd v Business Licensing Authority
MEDIUM NEUTRAL CITATION:	[2000] VSC 424

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Judicial review – alleged error in Motor Traders' Register – licence cancelled on deemed conviction – deemed conviction set aside – licence not revived – no error in register.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Gillies	Pryles & Defteros
For the Defendant	Mr P. Burke	Stephen Devlin Solicitor to Consumer and Business Affairs Victoria

HIS HONOUR:

Before the Court is a summons issued in a proceeding instituted by originating motion seeking an order to the effect that the Registrar of the Business Licensing Authority correct the register kept by the Registrar under the Motor Car Traders Act 1986.

The motion and summons do not refer to Order 56 of the Rules of Court or Judicial Review but the plaintiff is invoking the common law of jurisdiction of this Court to review a decision of the Registrar of a statutory body.

The relief sought is in the form of Mandamus compelling the Registrar to correct an alleged error in the register pursuant to s.17 of the Business Licensing Authority Act 1998 ("the Act").

Parties

The plaintiff Abalana Pty Ltd ("the plaintiff") is a company that carries on the business of selling used motor vehicles from premises in Campbellfield. It was the holder of a Motor Car Traders' Licence (LMCT 8832) granted on 8 November 1995 pursuant to the provisions of the Motor Car Traders' Act 1986.

The defendant Business Licensing Authority ("the Authority") is a body corporate established by the said Act, the functions of which are, inter alia, to administer the licensing and registration provisions of various Acts including the Motor Car Traders Act 1986 - see s. 6 of the Act.

At all relevant times Lissa Ruth Zass was the Registrar of the authority.

Mr Vasco Atanasovski at all relevant times was the sole director of the plaintiff.

Magistrates' Court Proceeding

An incident occurred at Fowles Auctions in Altona on 29 September 1999 as a result of which Mr Atanasovski was charged with a number of offences including unlawful assault. The charges were heard at the Sunshine Magistrates' Court on 10 July 2000 and after a contested hearing the Magistrate found Mr Atanasovski guilty of three charges including unlawful assault but did not record a conviction. He was fined $800 on the charge of unlawful assault. He did not appeal the decision of the Magistrate to the County Court within thirty days as is prescribed by the Magistrates' Court Act 1989.

Cancellation of Licence

On 31 August 2000 Mr Atanasovski as director of the plaintiff received a letter from the Authority informing him that from 10 August 2000 the Motor Car Traders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] VSC 424
Decision Date: 19 October 2000

CaseChat Overview and Summary

Abalana Pty Ltd, a motor vehicle dealership, was in dispute with the Business Licensing Authority over the cancellation of its dealer's licence, which was based on an alleged error in the Motor Traders' Register. The case was heard in the Supreme Court of Queensland, where the dealership sought judicial review of the Authority's decision. The central legal issue was whether the Authority had erred in cancelling the dealership's licence by relying on a deemed conviction recorded in the Motor Traders' Register. This conviction was subsequently set aside, leading to the question of whether the cancellation of the licence should be reversed.

The court examined the statutory framework governing the registration of motor traders and the procedures for dealing with deemed convictions. It was determined that the Authority had followed the correct process in cancelling the licence upon the deemed conviction, even though the conviction was later set aside. The court found that there was no error in the register, as the cancellation was valid at the time it occurred. Consequently, the cancellation of the dealership's licence was upheld, and the application for judicial review was dismissed.

The reasoning of the court was grounded in the interpretation of the relevant statutory provisions and the procedural fairness afforded to the dealership. The court held that the Authority's actions were consistent with the statutory requirements, and the subsequent setting aside of the conviction did not retroactively affect the validity of the cancellation. The court's decision confirmed that the cancellation of the licence was lawful, and no error was found in the Motor Traders' Register. As a result, the dealership's application for judicial review was dismissed, and no orders were made in favour of the applicant.

Orders