Abalana Pty Ltd v Business Licensing Authority
[2000] VSC 424
•19 October 2000
| 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 Licence held by the plaintiff had been cancelled.
Section 28(3) of the Motor Car Traders Act 1986 provides -
"(3)A licence is automatically cancelled if a partner of a licensee that is a partnership, or a director of a licensee that is a body corporate –
(a)is convicted of a serious offence or is disqualified from holding a licence; and
(b) is still a partner or director of the licensee 30 days after the conviction or disqualification."
Mr Atanasovski is still a director of the plaintiff.
Section 3(1) of the Act defines "serious offence" as meaning –
"An offence involving fraud, dishonesty, drug trafficking or violence punishable by imprisonment for three months or more."
(Emphasis added).
The punishment for unlawful assault includes imprisonment for a period of three months – see s. 23 Summary Offences Act 1966.
Mr Atanasovski was in fact not convicted but this contingency is taken up by s. 3(6) of the Motor Car Traders Act which provides –
"(6)A reference to a conviction for an offence includes a reference to –
(a) a finding of guilt in relation to the offence; . . ."
Mr Bill Gillies of counsel who appears for the plaintiff conceded that s. 28(3) of the Motor Car Traders Act applied in that Mr Atanasovski was a director of the plaintiff licensee, that he was convicted of a serious offence within the meaning of the Act and is still a director of the plaintiff.
It follows by reason of s. 28(3) of the Act that the licence was automatically cancelled and the letter from the Registrar dated 31 August 2000 informed the plaintiff of that fact. That letter also pointed out that the plaintiff should cease trading as a Motor Car Trader immediately
County Court Appeal
Having received the letter from the Authority concerning the automatic cancellation, a decision was made by Mr Atanasovski to appeal the orders made in the Magistrates Court pursuant to s. 83 of the Magistrates' Court Act 1989. By this time his right to appeal was lost because he had not given his notice of appeal "within 30 days after the day on which the sentencing order of the court was made". See cl. 1(1) of Schedule 6 to the Magistrates' Court Act.
A notice of appeal given after the 30 days' period is deemed to be an application for leave to appeal and the court may grant leave to appeal if it is of the opinion that the failure to give notice was due to exceptional circumstances and further that the court was satisfied the respondent's case was not materially prejudiced by reason of the delay. See cl. 1(2) and (3) of Schedule 6.
The application for leave to appeal came on for hearing before his Honour Judge O'Shea on 3 October 2000 and his Honour ordered that leave be granted to lodge the appeal outside the prescribed time and further ordered "that the hearing of appeal proceed forthwith".
His Honour then made the following orders –
"Magistrates' court order set aside insofar as it involves both, findings of guilt and the sentences imposed.
Adjourn a further hearing of this appeal until 15/1/01."
In making the order setting aside the findings of guilt and the sentences imposed, the learned judge was exercising the powers of the court found in s. 86 of the Magistrates' Court Act 1989.
It follows that the conviction upon which the automatic cancellation of the licence was based, ceased to exist.
Judicial Review
After the learned County Court judge made the orders, the plaintiff's solicitors wrote to the Registrar of the Authority and after referring to the orders made the letter went on –
"Our view and that of counsel is that since the orders made by the County Court today there is no basis for cancellation of the motor car traders licence of Abalana Pty Ltd. There is no finding of guilt and no sentencing order against our client, at least until the further hearing on 15 January 2001.
This letter is to advise that unless by 4pm on Thursday 5 October 2000 you advise our office in writing that Abalana Pty Ltd is licensed to trade under the Motor Car Traders Act 1986, our client will have no option but to apply to the Supreme Court of Victoria to seek orders to amend the register held under s. 22 of the Motor Car Traders Act to omit the automatic cancellation of the licence of Abalana Pty Ltd."
In a letter dated 5 October 2000, the Registrar referred to the orders made by His Honour Judge O'Shea, and to the provisions of the Motor Car Traders Act and the Act and stated that the Authority had no power to amend the register.
The Registrar stated –
"Accordingly, I am unable to advise that I have amended the register and confirm that your client's licence remains cancelled . . . "
Section 22 of the Motor Car Traders' Act obliges the Registrar of the Authority to keep the Register of Motor Car Traders.
Section 17 of the Act provides –
"(1)The Registrar may correct an error or omission in any register kept by the Registrar under a business licensing Act by –
(a)inserting an entry; or
(b)amending an entry; or
(c)omitting an entry –
if he or she decides that the correction is necessary."
Mr Gillies submits that since the deemed conviction for assault which formed the basis for the automatic cancellation of the licence, no longer existed, it must follow therefore that there was an error in the register and accordingly the register should be amended.
The register which in fact is kept by the authority is a computer entry and a print of the entry reveals that the licence granted to Abalana Pty Ltd commenced on 8 November 1995 and that on 10 August 2000 it was cancelled.
There is no right of appeal by the plaintiff from the decision of the Registrar under the Act refusing to amend the register. The only avenue open to the plaintiff to challenge the refusal is by way of common law judicial review.
The common law jurisdiction of this court to review decisions of a statutory authority is subject to the procedure set out in order 53 of the Rules of Court. Jurisdiction of the court to review decisions is limited.
The jurisdiction is supervisory and does not entitle this court to canvas matters that it would on an appeal. The jurisdiction is different to an appeal.
The judicial review procedure is concerned mainly with the legality of what was done by the statutory body and is not concerned with the merits of the decision under review.
Order 56 is concerned with the procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the rules do not affect the jurisdiction of the court and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of Mandamus namely compelling a statutory body to do something.
The plaintiff has not complied with the rules in the present matter. Rule 56.01(4) requires the plaintiff to state the grounds upon which the relief or remedy is sought.
The originating motion does not set out any grounds upon which the relief is sought. However after discussion with Mr Gillies counsel appearing for the plaintiff, it is clear that the complaint made by the plaintiff is that the Registrar should exercise her power under s. 17 of the Act and correct an alleged error in the register by removing the cancellation and in effect resurrecting the licence.
The issue does raise the question of the power of the Registrar.
It is clear that in an appropriate case the Registrar does have the power to correct "an error . . in any register kept by the Registrar" under any licensing act.
Mr Peter Burke of counsel for the defendant submits that there was no error in the register and hence the Registrar was correct in refusing to alter the register and permit the plaintiff to continue to trade.
Error in Register?
In my opinion the main question for consideration by the Court on the judicial review, is whether the register kept by the Authority under the Motor Car Traders Act contains an error that should be rectified? Bound up with this question is the further question, whether a licence once cancelled can be resurrected?
The question concerns the proper interpretation of both the Motor Car Traders Act and the Business Licensing Authority Act 1998.
The court in construing a section in an Act gives effect to the intention of Parliament. The words in the Act must be given their ordinary and natural meaning, subject to any definition or context suggesting otherwise, and after considering the Act as a whole.
The Motor Car Traders Act 1986 sets out a legislative scheme with respect to cancellation of a licence.
Section 29(3) provides that the licence is automatically cancelled if inter alia a director of a body corporate licensee is convicted of a serious offence and remains a director of the licensee for a period of 30 days after conviction.
However the Act goes on to provide that a person who has been convicted of such a serious offence may be allowed a limited right to hold a licence.
Section 29C enables a licensee which is a body corporate to apply for permission to continue to hold its licence in the event of a director being convicted of a serious offence and the Authority may give permission provided it is not contrary to the public interest.
An application under s.29C has an effect upon the automatic cancellation brought about by s. 28(3) by reason of the provisions of s.28(4) which provides –
"(4)If a person whose licence would otherwise be cancelled . . applied for permission under section 29B or 29C within the 30 day period referred to in that sub-section, the person's licence is only automatically cancelled if the application is withdrawn or refused by the Authority."
If an application had been made by the plaintiff pursuant to s. 29C within the 30 days' period then this would have had the effect of staying the cancellation until the application was either withdrawn or refused by the authority and of course it follows that if the authority had granted permission, the automatic cancellation would not have taken effect.
The plaintiff did not pursue this course.
It is clear on a plain reading of s. 28 of the Motor Car Traders Act that a licence is automatically cancelled where a director of a licensee which is a body corporate is convicted of a serious offence and he remains the director for 30 days after the conviction.
The act of cancellation occurs as a result of the events set out in s. 28(3)(a)(b). No act by any person is necessary to effect the cancellation because the statute brings about the automatic cancellation on the happening of those events. It is a statute caused cancellation.
It follows that the Registrar of the Authority has no say in the statutory effect of the conviction resulting in cancellation if the person remains a director for 30 days.
The Registrar would only be involved in the process if the plaintiff had applied under s. 29C of the Act.
Once the cancellation was effected by reason of the statute, the Registrar was obliged to record the cancellation in the register.
This conclusion follows from the provisions of the legislation.
The reasoning in the case of In re Arbitration between The Standard Insurance Co Ltd and MacFarlan (1940) VLR 74 supports the conclusion.
In that case the court was concerned with the interpretation of s. 23(2) of the Motor Car Act 1928 which provided –
"Every person proved to have been under the influence of intoxicating liquor whilst driving a motor car, . . . shall be liable to a penalty of not less than five nor more than 30 pounds . . . and the licence of such person shall be cancelled and such person shall not be again licensed except upon the order of a court of petty sessions."
An issue arose between an insurer and its insured as to whether a driver at a relevant time was driving whilst unlicensed. The driver in question had been convicted under s. 23(2) of drunk driving and eventually an application was made to the Attorney General to set aside the cancellation. The Attorney submitted to the Governor in Council that the penalty should be remitted. The Governor in Council approved the application.
Gavan Duffy J held that the Governor in Council had no power to interfere with the penalty because the penalty automatically applied by reason of the statute and had nothing to do with any decision to take the licence by the court.
The learned judge after referring to the submission of counsel then went on to say this at p. 82-3 –
"The section does not say that the Court is to cancel, but the licence is to be cancelled. The answer to this may be, why say anything else, since the Court is the only person to do it. Mr Hudson so argues and the argument might have weight, but for the fact when one looks back to sections 8 and 10, one sees that the legislator is able to use accurate language when it is the Court that is to cancel the licence. . . . Looking at the differences in language one should conclude that the different expressions have been purposefully used to convey differences in meaning and that section 23 intended an automatic cancellation of the licence."
His Honour held that the Governor in Council did not have the power to interfere with the penalty because the penalty was imposed by the application of the section in the Act and was not the result of any court order.
In my opinion that is the position here. Once Mr Atanasovski was convicted within the meaning of the Act, remained as a director for 30 days and did not pursue an application for permission under s.29C then automatic cancellation occurred as a result of the operation of the statute.
The Registrar was duty bound to then record the cancellation in the register and at that moment in time there was no error in the register.
The method of automatic cancellation has been used by Parliaments in the past.
See by way of example Buck v Comcare (1996) 66 FCR 359.
In that case the words of Finn J at p. 363-4 are apposite to the present legislative scheme –
"To use the language of Lockart J in Minister for Immigration and Ethnic Affairs v Naumovski at p. 601, 'the sub paragraph means what is says'. It stipulates the circumstances in which an employee's rights will be suspended – and suspended by force to the sub-section. As and when those circumstances occur, so also does the suspension of rights. Again to use the language of Lockhart J at p. 601: 'no decision by anybody is required to bring about this change' ".
That is the position with s.29(3) of the Motor Car Traders Act 1986.
If Parliament intended that the right would be preserved in the event of an appeal then Parliament could have easily said so. It did not. I refer by way of comparison, to the Prostitution Control Act 1994 s.47(2) and the Second-Hand Dealers and Pawn Broker Act 1989 s.10(3).
In my opinion it is clear that cancellation comes about by the operation of statute and not by the decision of any person.
It is clear that when the cancellation is noted in the register there is no error in the register.
This raises the next issue whether the setting aside of the deemed conviction by the County Court in the present matter had the effect of resurrecting the licence thereby creating an error in the register which the Registrar was entitled to correct under s.17(1) of the Act.
Error in Register?
Mr Gillies submitted that the setting aside of the deemed conviction meant that the cancellation was no longer supported by the statutory pre-requisite and accordingly the register now contained an error.
Before an error could occur, it would be necessary to show that as a result of the events which occurred after the cancellation, the original licence had been revived or resurrected and hence the register no longer recorded the true position.
In my opinion the licence having been automatically cancelled could not be revived under the Motor Car Traders Act. Nothing that was done could bring back to life what had in fact been cancelled.
It follows that the register does not contain any error at all. The fact was the licence has been cancelled and there is no provision in any Act which revives it if the conviction has been set aside.
The proper avenue open to the plaintiff is to re-apply for the licence.
Mr Gillies submitted that what had occurred did amount to an error. He referred to the definition of "error" and referred to what Kirby P in Larkin v Parole Board (1987) 10 NSWLR 57, said at p.64. It is noted that the word "error" has different meanings according to the contexts. Mr Gillies then relied upon the High Court decision of The Queen v The Commissioner of Patents ex parte Martin (1953) 89 CLR 381. In that case an applicant for letters patent inadvertently declared in his application that he was the actual inventor of the invention whereas he was the assignee. Letters patent were issued to him in 1945 and in 1951 he applied to amend the application to show that he was the assignee of the patent. He referred to what Williams ACJ said at p.394. However, one has to consider the majority judgment which was given by Fullagar J and in that case the court held that there was no clerical error. The court held that at the time when the entry was made it was not erroneous. This in my opinion supports the conclusion in the present matter that there was no error when the register was altered to record the cancellation and there is nothing in the Act which enables the licence to be revived. In my opinion s.17 of the Act cannot assist the plaintiff.
It follows there is no power in the circumstances to amend the register. The licence has been cancelled and cannot be resurrected and it follows that the plaintiff is not entitled to any relief.
Subject to submissions by counsel, I propose the following orders –
(i)That the proceeding be dismissed;
(ii)that the plaintiff pay the defendant's costs of the proceeding.
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