Aguerre v Director General, Department of Fair Trading

[1999] NSWADT 27

CITATION:	Aguerre -v- Director General, Department of Fair Trading [1999] NSWADT 27
DIVISION:	General
APPLICANT:	Danilo Aguerre
RESPONDENT:	Director-General, Department of Fair Trading
FILE NUMBER:	993013
HEARING DATES:	04/12/1999
SUBMISSIONS CLOSED:	04/12/1999
DATE OF DECISION:	12 April 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Pawnbrokers & Secondhand Dealers Act 1996
APPLICATION:	Review of decision to refuse to grant secondhand dealers licence -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: T Grey, solicitor
ORDERS:	1. The decision of the Director-General is set aside. 2. The application for the licence is granted.

1 The applicant in this matter Mr Aguerre seeks a review of the decision of the Director-General of the Department of Fair Trading. The Tribunal's jurisdiction is conferred by s 39 of the Pawnbrokers & Secondhand Dealers Act 1996 ('the Act'). Under the legislation relating to applications for secondhand dealers licences the administrator, the Director-General, is obliged to refuse a licence if an applicant has been convicted within New South Wales or elsewhere of an offence involving dishonesty that was recorded within the last ten years. (See ss 8(1)(d) and 8(3) of the Act.)

2 In the present case Mr Aguerre was convicted of the offence of stealing at Kogarah Local Court on 17 July 1990 and fined $500. In appealing to this Tribunal he seeks to have the benefit of the discretion that is available to be exercised by the Tribunal, one that is not open to the exercised by the administrator. That discretion appears in section 8(4) of the Pawnbrokers & Secondhand Dealers Act and is expressed as follows:

"On an application under section 39 for a review of a decision of the Director-General refusing to grant a licence to a person because a person was disqualified under subsection (1)(b) or 2(b) the Administrative Decisions Tribunal may determine that the fact that the person has committed the offence concerned should go ignored on one or more of the following grounds:

(a) the triviality of the facts or omissions giving rise to the offence;

(b) the time that has passed since the offence was committed; and

(c) the apparent subsequent good behaviour of the offender."

3. I have heard evidence from Mr Aguerre in relation to the incident giving rise to the conviction. He has also submitted three short testimonials going to his character. According to Mr Aguerre, he has not previously worked as a secondhand dealer and this is his first application for such a licence. He has explained that he wishes to use the licence so as to deal at the markets as a way of earning an income that is less physically demanding than his present work as a bistro cook with the Belfield RSL Club.

4. The offence of which Mr Aguerre was convicted is one of significance, as the legislation recognises, and in terms of whether to exercise a discretion favourably to grant a secondhand dealers licence. Mr Aguerre has presented a version of the events surrounding that conviction that appears to be unusual. He has suggested that the police investigating the matter sought to deal with him corruptly. I should indicate that I do not give any particular weight to those suggestions in the absence of any information before the Tribunal as to the police investigation or what occurred at that time. Nonetheless, the conviction is an old one in terms of the operation of the scheme. It is now almost nine years old. It would appear to be an isolated event and it would appear that otherwise Mr Aguerre is regarded as a person of good character.

5. I have noted the submissions by Mr Grey for the Director General which were essentially to the effect that the department does not have any strong objection to the favourable exercise of discretion. Mr Grey referred to the number of years that have passed since the offence had been committed. It also seems to me to be material that Mr Aguerre has not practised in the industry previously and it would appear that this offence was unconnected with the possession of a licence or trading of that kind.

6. In those circumstances I am prepared to exercise the discretion conferred on the Tribunal favourably to Mr Aguerre, which is to treat the offence as one which should be ignored on the following two grounds referred to in s8(4):

"(b) the time that has passed since the offence was committed; and

(c) the apparent subsequent good behaviour of the offender."

It will be noted that I have not relied on paragraph (a) (triviality) in reaching these conclusions. Whilst, as the fine that was imposed would tend to suggest, it was at the lower end of the range of stealing, it is not appropriate, I consider, to describe the matter as trivial.

7. For those reasons the decision of the Tribunal is, (in light of s 63(3)(c) of the Administrative Decisions Tribunal Act 1997), to set aside the decision of the Director-General and make a decision in substitution for that decision being that the application for the licence be granted.