Boutros v Director General, Department of Finance and Services

[2011] NSWADTAP 54

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Boutros v Director General, Department of Finance and Services (GD) [2011] NSWADTAP 54
Hearing dates:	23 November 2011
Decision date:	30 November 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President S Higgins, Deputy President M Bolt, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	MOTOR DEALERS LICENSING - Application for Licence - Applicant subject of Permanent Disqualification Order - Whether administrator has discretion - Held not - Appeal dismissed - Motor Dealers Act 1974, s 12, s 20F
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Crimes (Criminal Organisations Control) Act 2009 Crimes Act 1900 Motor Dealers Act 1974 Pawnbrokers and Second-hand Dealers Act 1996
Cases Cited:	Bourke v Commissioner of Police [1998] NSWADT 1 Boutros v Director General Department of Finance and Services, New South Wales Fair Trading [2011] NSWADT 181 Commissioner of Police v Wilson & anor, Court of Appeal, 29 July 1994, unreported Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49 Stephens v Director General, Department of Fair Trading [2003] NSWADT 173
Category:	Principal judgment
Parties:	Elias Boutros (First Appellant) Leila Boutros (Second Appellant) Director General, Department of Finance and Services (Respondent)
Representation:	COUNSEL S J Stanton (First and Second Appellants) R Francois (Respondent) M Nicoletti (Respondent)
File Number(s):	119039
Decision under appeal	Jurisdiction: 9108 Citation: Boutros v Director General, Department of Finance and Services, New South Wales Fair Trading [2011] NSWADT 181 Date of Decision: 2011-07-28 00:00:00 Before: General Division File Number(s): 103299

REASONS FOR DECISION

1. APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT), S HIGGINS (DEPUTY PRESIDENT), M BOLT (NON-JUDICIAL MEMBER)): The General Division of the Tribunal has affirmed a decision of the respondent (the administrator) under the Motor Dealers Act 1974 (the MD Act) refusing the appellants' application for a motor dealer's licence: see Boutros v Director General Department of Finance and Services, New South Wales Fair Trading [2011] NSWADT 181. The appeal is made under the Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. It raises a question of statutory interpretation.

1. The appellants last held a motor dealer's licence in 2002. In December 2002 the administrator took the disciplinary action of disqualifying them permanently from holding a motor dealer's licence, following their c onviction for 33 counts of speedometer interference and failure to produce records. The power is conferred by s 20E(1)(d) of the MD Act.

1. The Tribunal upheld the administrator's submission that the administrator, in determining the appellants' 2010 application for a motor dealer's licence under the MD Act, was bound to refuse the application, by virtue of s 12 of the Act.

1. The relevant provision is s 12(2), and the relevant paragraph is (b). It is helpful to set out the whole of the sub-section:

(2) An application for a licence made by a natural person shall be refused if it appears to the Director-General that:

(a) the applicant has not attained the age of 18 years,

(b) the applicant is disqualified from holding a licence,

(c) the applicant is an undischarged bankrupt,

(d) the applicant does not have, or is not likely to continue to have, sufficient financial resources to enable the person to carry on business pursuant to the authority that would be conferred by the licence if it were granted,

(e) the applicant is not a person likely to carry on such a business honestly and fairly,

(f) the applicant does not have the prescribed qualifications or does not have sufficient knowledge or expertise to carry on such a business,

(f1) the applicant is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009 ,

Note. Controlled members are prohibited from applying for licences-see section 27 of the Crimes (Criminal Organisations Control) Act 2009 .

(g) the applicant is in any other way not a fit and proper person to be the holder of a licence, or

(h) any person with whom the applicant intends to carry on, in partnership, business pursuant to the authority that would be conferred by the licence if it were granted is a person in respect of whom the Director-General would be required to refuse an application for the licence if that person were the applicant, or

(i) the applicant has (as an adult), within the preceding 10 years, been found guilty of an offence involving, or relating to:

(i) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900 ), or

(ii) receiving, or unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900 ) or a motor vehicle part.

1. On appeal, the appellants have submitted that the review jurisdiction created by s 20F allows the Tribunal to examine the merits of the decision to refuse the application, including consideration of the circumstances that gave rise to the disqualification order, in particular the severity of the disqualification order.

1. Section 20F provides relevantly:

20F Reviews by the Administrative Decisions Tribunal

(1) If the Director-General:

(a) refuses to grant an application for, or suspends or (under any provision of this Act) cancels, a licence, or

(b) imposes a condition or restriction under section 14, or

(c) imposes a disqualification referred to in section 20E (1) (d),

the applicant for the licence, the person who held the licence or the person disqualified (as the case may be) may apply to the Administrative Decisions Tribunal for a review of the decisions of the Director-General.

1. In this instance the appellants submit that they are persons in the category to which paragraph (a) is directed - they have been 'refused' a licence.

1. Some weight was given in the submissions to the express reference in the closing clause of the paragraph to a 'disqualified' person having a right to apply for review. In our view, the clause seeks to define who can apply for review (who has 'standing') by reference to the relationship they hold to the licensing environment as a result of the administrator's decision. A person whose application has been refused is properly described as an 'applicant', whereas people who have been suspended or had conditions imposed meet the description of a 'person who held the licence', while a person who has lost their licence to disqualification is a 'disqualified person'.

1. The descriptions do not have any bearing on the question of the issues that can be raised by the right of review.

1. The scope of the review right will depend on the statutory provisions governing the making of the decision. Here, the administrator's decision, the subject of review, had two boundaries - one, satisfaction as to a simple matter of fact, whether the applicant was a 'disqualified' person, and, two, the imposition of a duty to act on that fact ('shall be refused'). The language is not expressed to be discretionary.

1. Licensing schemes typically include eligibility criteria. Sometimes the criteria are expressed as conditions for the making of an application; sometimes (as here) they are expressed as grounds upon which an application must be refused.

1. The clear intent, as we see it, of s 12(2) is to exclude certain people from licences because of characteristics that are seen as unsuitable for the holding of a consumer business licence of the kind that a motor dealer's licence is. The first three categories all relate to statuses that depend on certification - being under age, being disqualified, and being bankrupt. Then the list moves to categories where evaluation is involved, and there is room for argument over where the balance should be struck (e.g. the references to 'sufficient' financial resources, 'sufficient' knowledge, to being a 'fit and proper' person and to being trusted to carry on business 'honestly'). Towards the end the list moves back to certified or recorded statuses, such as persons convicted of particular classes of offence.

1. In our view, the right given by s 20F to licence applicants to apply for review is always limited by the breadth or otherwise of the statutory ground that gave rise to the decision the subject of review. Therefore in a case arising under s 12(2)(b) all that can be examined is the accuracy or otherwise of the objective fact of disqualification. A similar position applies to the other categories with that characteristic.

1. The general authority of the Tribunal to make the 'correct and preferable' decision in relation to a review application (ADT Act, s 63) does not allow the Tribunal to do more than the administrator could do, unless there is a specific statutory provision giving the Tribunal wider power. There was an example of this in the Pawnbrokers and Second-hand Dealers Act 1996 as it stood in 2001: compare s 8(3) with s 8(4), as they stood then.

1. As to the limitations on the scope of the Tribunal's ordinary review jurisdiction where the administrative decision admits of no exercise of discretion, see generally Bourke v Commissioner of Police [1998] NSWADT 1. As noted in RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49:

14 If action is taken against an authority on a mandatory ground, the Tribunal has accepted that it is restricted when reviewing decisions to the question of whether any pre-conditions for the mandatory decision are made out. If that is the case, it has no independent discretion, unless the Tribunal is expressly given a discretion on review not enjoyed by the administrator responsible for the primary decision: see Bourke & ors v The Commissioner of Police [1998] NSWADT, and the case upon which it relied, Commissioner of Police v Wilson & anor , Court of Appeal, 29 July 1994, unreported. There was no separate discretion given to the Tribunal in this case.

1. The real issue in this case is the seemingly draconian nature of the disqualification, one that prevents the appellants from ever being considered for re-entry to the industry as a dealer. The appellants have now served nine years disqualification.

1. As the President noted in Director General, Department of Fair Trading v Cohen [2000] NSWFTT 3 (27 April 2000), when sitting as Chairperson of the Fair Trading Tribunal (where the review jurisdiction in respect of fair trading licences was once located):

64) Grave misconduct is dealt with in some regulated occupations, for example the legal profession and the medical profession, by an order that the practitioner be deregistered or 'struck off'. The opportunity remains for the affected individual to apply for re-registration. The imposition of an order of permanent disqualification, as sought in this case, would appear to admit of no possibility of return to the occupation previously undertaken by the affected individual. This is a crushing penalty, and could only be countenanced in the most extreme of circumstances.

65) The community has an interest in the effective use of skills, subject to being confident that an individual has rehabilitated and is not likely to repeat the conduct which gave rise to the individual's disqualification.

1. See further, Stephens v Director General, Department of Fair Trading [2003] NSWADT 173 at [26]-[28].

1. In our view, the only way that this Tribunal's jurisdiction might be able to be engaged is by way of an application for review of the administrator's 2002 decision to permanently disqualify the appellants, subject to leave being given to proceed out of time. In the event that this course of action is pursued, the appellants should draw this part of this decision to the Registrar's attention, and request a special listing for the making of directions.

1. This appeal is dismissed.

1. The administrator foreshadowed an application for costs of the appeal if successful.

1. The administrator is directed to file and serve any submissions in support of costs within 14 days, and, if that is done, the appellant to file and serve any submissions in reply within a further 14 days. The Appeal Panel will deal with the application without holding a hearing as permitted by s 76 of the ADT Act, unless there is an application to the contrary in which case that application will be the subject of a telephone conference.

Order

Appeal dismissed.

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Decision last updated: 30 November 2011