Abalana Pty Ltd v Business Licensing Authority

Abalana Pty Ltd sought judicial review of a decision of the Business Licensing Authority which had refused to revive its cancelled motor traders’ licence. The cancellation had occurred due to a deemed conviction of the company’s director under the Motor Car Traders Act 1986. The deemed conviction was later set aside by the County Court. Abalana submitted that the cancellation of the licence was an error and should be rectified. The Authority argued that the cancellation was not an error and remained in force. The court was required to determine whether the cancellation was an error and whether the setting aside of the deemed conviction entitled Abalana to have its licence revived. The court held that the cancellation was not an error because it was imposed by the operation of statute and not by the decision of any person. The cancellation was noted in the register at the moment it occurred, and there was no error at that point. The setting aside of the deemed conviction did not resurrect the cancelled licence or create an error in the register because the cancellation was not based on the conviction. The Registrar was not entitled to correct the register under section 17(1) of the Act.

The reasoning in the case of In re Arbitration between The Standard Insurance Co Ltd and MacFarlan supported the conclusion. The court 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. Similarly, once the director was convicted and did not pursue an application for permission, automatic cancellation occurred as a result of the operation of statute. The Registrar was duty bound to record the cancellation in the register and at that moment in time there was no error in the register. Parliament had not intended that the right to the licence would be preserved in the event of an appeal. The cancellation was not based on the decision of any person and therefore could not be corrected after the fact. The court dismissed Abalana’s application for judicial review.