Baho v Director General, Department of Fair Trading

[2001] NSWADT 98

CITATION:	Baho -v- Director General, Department of Fair Trading [2001] NSWADT 98
DIVISION:	General Division
PARTIES:	APPLICANT John Baho RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013062
HEARING DATES:	05/06/2001
SUBMISSIONS CLOSED:	06/05/2001
DATE OF DECISION:	06/08/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Pawnbrokers & Second-Hand Dealers Act - second-hand dealers licence - impose a condition on licence - Pawnbrokers licence - impose a condition on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Pawnbrokers and Second-hand Dealers Act 1996 Administrative Decisions Tribunal Act 1997 Pawnbrokers and Second-hand Dealers Regulation 1997
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Wilson, solicitor
ORDERS:	1. The decision to impose a condition on Mr Baho's Pawnbrokers and Second-hand Dealers licence that he keep electronic records is affirmed.

Introduction

1 The Director General Department of Fair Trading (the agency) imposed a condition on Mr Baho’s second-hand dealers licence that the records of the business be electronically recorded.

2 On 22 March 2001, Mr Baho lodged an application with the Tribunal requesting a review of the decision to impose that condition on his pawnbrokers and second hand dealers licence.

3 The matter was listed for a directions hearing on 26 April 2001. On that date the legal representative for the agency, Mr Wilson, submitted that the Tribunal did not have jurisdiction to hear the application. I directed that each party file and serve any submissions on jurisdiction by 24 May 2001. The agency filed its submission on 24 May 2001. Mr Baho agreed that the matter could be determined “on the papers” under s 76 of the Administrative Decisions Tribunal Act 1987 (ADT Act).

Evidence

4 Mr Baho has a second-hand dealer’s licence issued under the Pawn Brokers and Second-hand Dealers Act 1996 (PBSHD Act). In relation to Mr Baho’s previous licence, which expired on 8 September 2000, the agency imposed a condition that:
You must use electronic means of creation and storage of records for the purposes of sections 16 and 28 of the Pawnbrokers and Second-hand Dealers Act 1996, using software which complies with the specifications issued by the New South Wales Police Service titled “Pawnbroker and Second-hand Dealer system (Dealer Software Specifications)” as modified from time to time.

5 The agency advised Mr Baho by letter of 3 November 1999, that he had a right to apply for internal review of that decision and that, if he was dissatisfied with the results of that internal review, he could apply to the Tribunal for a review of the decision.

6 Mr Baho states that “We did have exemption for computer records last year and before but somehow we filled the form wrong its mistake on our part please consider our position as most our business is brand new software.”

Legislation

7 Clause 13A(1) of the Pawnbrokers and Second-hand Dealers Regulation 1997 (the Regulation) states that:
1) A person who held a second-hand dealer's licence under the Second-hand Dealers and Collectors Act 1906 immediately before the repeal of that Act on 30 April 1997 and who has never held a licence issued with a condition requiring the use of electronic means of creation and storage of records, may, when applying for the issue or renewal of a licence on or after 1 January 1999 (being a licence authorising the person to carry on the business of a second-hand dealer, but not the business of a pawnbroker), apply to have the licence issued or renewed without such a condition.

8 This provision requires that two conditions must be satisfied before a person can apply to have their licence renewed without a condition that records be kept electronically. Those conditions are that:

• the person held a second-hand dealer's licence immediately before 30 April 1997; and
• the person has never held a licence issued with a condition requiring the use of electronic means of creation and storage of records.

9 While there is no evidence in relation to the first condition, the agency does not appear to be disputing that Mr Baho held a second hand dealers licence immediately before 30 April 1997.

10 The second condition is not satisfied in this case. Mr Baho has held a licence issued with a condition requiring the use of electronic means of creation and storage of records. The licence granted to him on 8 September 1997 and expiring on 8 September 2000 had such a condition. Whether or not the condition was imposed because of a mistake on Mr Baho’s part, I have no choice but to apply the legislation. Mr Baho has held a licence issued with a condition requiring the use of electronic means of creation and storage of records. In that situation I have no discretion to set aside the agency’s decision. For these reasons, the agency’s decision is affirmed.