Brookes v Commissioner for Consumer Affairs - [2020] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
BROOKES v COMMISSIONER FOR CONSUMER AFFAIRS
[2020] SADC 93
Decision of His Honour Judge O'Sullivan
21 July 2020
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
PROFESSIONS AND TRADES - LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS - MOTOR VEHICLE TRADERS AND DEALERS
The appellant applied for a Second-hand Vehicle Dealers Licence under the Second-hand Vehicle Dealers Act 1995 (“the Act”). The Commissioner for Consumer Affairs refused the application on the grounds that the appellant was not a fit and proper person as required by s 9(1)(f) of the Act. In refusing the application, the Commissioner had regard to the fact that the appellant had been convicted some five years prior of the offences of kidnapping, recklessly cause injury and aggravated burglary contrary to the Crimes Act 1958 (Vic).
The appellant appealed.
The Commissioner filed a Notice of Alternative Contention contending that the decision should be upheld because the appellant had been convicted of an indictable offence of dishonesty, namely aggravated burglary, contrary to s 9(1)(b)(i) of the Act.
The appellant submits that this offence is not an offence of dishonesty.
Held: appeal dismissed.
1. The appellant has been convicted of an indictable offence of dishonesty contrary to the provision s 9(1)(b)(i) of the Act.
2. By entering a plea of guilty to the charge of aggravated burglary in the circumstances alleged in the County Court of Victoria, the appellant accepted each of the elements of the offence, including that he entered the building with the intent to steal.
3. Although the Crimes Act 1958 (Vic) does not expressly state dishonesty as an element of the offence of burglary, an offence which has an element of an intent to steal is an offence of dishonesty.
4. There are cogent reasons to rescind the Commissioner's decision not to grant the appellant a Second-hand Vehicle Dealers Licence on the grounds he is not a fit and proper person. That decision is substituted for a decision that the appellant is not entitled to be granted a licence as he has been convicted of an indictable offence of dishonesty contrary to s 9(1)(b)(i) of the Act.
Second-hand Vehicle Dealers Act 1995 (SA); Crimes Act 1958 (Vic); Statutes Amendment (SACAT) Act 2019 s 160; Acts Interpretation Act 1915 s 16(1)(e); District Court Act 1991 s 42E(3), s 42F; Criminal Law Consolidation Act 1935 s 170, referred to.
Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; Maxwell v The Queen (1996) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132, considered.

BROOKES v COMMISSIONER FOR CONSUMER AFFAIRS
[2020] SADC 93
Introduction

On 8 May 2019, the appellant (“Mr Brookes”) applied for a Second-hand Vehicle Dealers Licence under the Second-hand Vehicle Dealers Act 1995 (“the Act”).[1] On 9 August 2019,[2] the Commissioner for Consumer Affairs (“Commissioner”) refused Mr Brookes’ application on the basis that he was not a fit and proper person as required by s 9(1)(f) of the Act.
[1] Affidavit of Ethan Kenton Sandery, sworn 23 December 2019, Exhibit EKS-1; Appeal Book pp 22-28.
[2] Second-hand Vehicles Dealers Act 1995, s 10 as at 3 September 2019.
In reaching his decision, the Commissioner had regard to the disclosure by Mr Brookes in his application that on 14 May 2014 he had been convicted in the County Court of Victoria, sitting at Melbourne, of one count of kidnapping, one count of recklessly cause injury and one count of aggravated burglary.
On 10 June 2020, the Commissioner filed a Notice of Alternative Contention contending that the Commissioner’s decision should be upheld for the additional reason that Mr Brookes was not entitled to be granted a Second-hand Vehicle Dealers Licence because he had been convicted of an indictable offence of dishonesty contrary to s 9(1)(b)(i) of the Act, namely aggravated burglary, an offence under s 77 of the Crimes Act 1958 (Vic) (“Crimes Act”).
The appellant submits that this offence, whilst indictable, is not an offence of dishonesty.
It is common ground that if the offence of aggravated burglary is an indictable offence of dishonesty, the Commissioner had no discretion and must refuse the application.
Documents
I have the benefit of an appeal book prepared by the parties. Within that appeal book is an affidavit of Ethan Kenton Sandery sworn 23 December 2019 (“Sandery affidavit”).
Apart from the appeal book, I have also been assisted by written submissions from both parties, supplemented by oral submissions. I have considered all material put to me both orally and in writing.
Jurisdiction to hear the Appeal
Neither party contended that this Court sitting in its Administrative and Disciplinary Division did not have jurisdiction to consider the Appeal.
Nonetheless, quite properly, counsel drew my attention to the ex-tempore reasons of his Honour Judge McEwen DCJ delivered 20 May 2020 in the matter of Commissioner for Consumer Affairs v Treloar,[3] in which his Honour expressed the view that in light of the transitional provisions in the Statutes Amendment (SACAT) Act 2019, Part 25,[4] this Court no longer had jurisdiction to hear an appeal of this type with that jurisdiction now being exercised by SACAT.
[3] DCCIV-18-1481, Ex-Tempore Ruling delivered 20 May 2020.
[4] Section 160.
Section 160 in Part 25 of the Statutes Amendment (SACAT) Act 2019 sets out the transitional provisions. That Part commenced on 4 May 2020 and provides:[5]
[5] Gazette 27 February 2010, p 442.
(1)A right of appeal to the Administrative and Disciplinary Division of the District Court under sections 10, 14A and 14B of the principal Act in existence before the relevant day (but not exercised before that day) will be exercised as if this Part had been in operation before that right arose, so that the relevant proceedings may be commenced before the Tribunal rather than the District Court.
...
(4)Nothing in this section affects any proceedings before the Administrative and Disciplinary Division of the District Court commenced before the relevant day.
(5)…
(6)In this section—
principal Act means the Second-hand Vehicle Dealers Act 1995;
relevant day means the day on which this Part comes into operation;
Tribunalmeans the South Australian Civil and Administrative Tribunal.
On that basis, the relevant date is 4 May 2020.
Ms Ferguson, who appeared for the Commissioner, submitted that pursuant to s 16(1)(e) of the Acts Interpretation Act 1915, the District Court retains jurisdiction to deal with this appeal.
That section provides:
(1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—
…
(e)affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
The Notice of Appeal is dated 3 September 2019, which is before the relevant date.
His Honour’s decision in Commissioner for Consumer Affairs v Treloar is not binding but is of persuasive authority. In my view, on a proper construction of s 160(1) and (6) of the Statutes Amendment (SACAT) Act 2019 and s 16(1)(e) of the Acts Interpretation Act 1915, the Administrative and Disciplinary Division of the District Court of South Australia has jurisdiction to consider this appeal on the basis that the right of appeal had been exercised before the relevant date.
Legal Principles on Appeal
Under s 42E(3) of the District Court Act 1991 the Court, on appeal, must give due weight to the decision being appealed against, the reasons for it and must not depart from the decision except for cogent reasons.
The powers of the Court on Appeal are set out in s 42F of the District Court Act 1991. It provides that the Court may:
a)affirm the decision appealed against;
b)rescind the decision and substitute a decision that the Court considers appropriate;
c)remit the matter for consideration.
In Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2), Stanley J said:[6]
Section 42E(3)is a mandatory provision requiring the Court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal from the decision appealed against except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merits review of the decision the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision-maker. It is only to depart from that decision where cogent reasons exist. “Cogent” means compelling, convincing, powerful. Second, in the context of this appeal, the decision being appealed against is the decision of the Registrar, affirmed by the Committee, to cancel the respondent’s licences, and the Court is required in conducting the appeal from that decision, to give due weight not only to the decision but to the reasons for it.
[6] [2016] SASCFC 72 [315].
Offence of Dishonesty
Mr Brookes was sentenced in the County Court of Victoria on 14 May 2014. I have read the sentencing remarks of her Honour Judge Douglas.[7]
[7] Sandery Affidavit, Exhibit EKS-5; Appeal Book p 40.
Her Honour records that Mr Brookes pleaded guilty to each charge on the Indictment and sentenced him on the basis that he entered the premises in question as a trespasser with the intention of taking money that was said to be owed.[8]
[8] Appeal Book p 47 [31].
Mr Allen of counsel, who appeared for Mr Brookes, submitted that the offence of aggravated burglary was the equivalent of aggravated serious criminal trespass contrary to s 170 of the Criminal Law Consolidation Act 1935 and was not an offence of dishonesty.
In particular, Mr Allen submitted that dishonesty is not an element of the offence of burglary. He points to the definition of dishonesty found in s 131 of the Criminal Law Consolidation Act 1935.
There is no dispute that the offence of aggravated burglary is an indictable offence.[9]
[9] Crimes Act 1958(Vic) s 2B, s77(2).
Consideration
The relevant part of s 76 of the Crimes Act provides:
(1)    A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—
(a)to steal anything in the building or part in question; or
(b)to commit an offence—
(i)involving an assault to a person in the building or part in question; or
(ii)involving any damage to the building or to property in the building or part in question—
which is punishable with imprisonment for a term of five years or more.
(2)    …
(3)    A person guilty of burglary is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
It is apparent from a consideration of s 76 of the Crimes Act that an element of the offence is the intent, amongst other things, to steal anything in the building.
Aggravated burglary is dealt with by s 77 of the Crimes Act. The relevant part provides:
(1) A person is guilty of aggravated burglary if he or she commits a burglary and—
(a)…
(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.
(1A)…
(2) A person guilty of aggravated burglary is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).
For the purposes of this matter, the offence of aggravated burglary adds nothing to the offence of burglary.
Counsel for the Commissioner submitted that Mr Brookes’ guilty plea to the offence of aggravated burglary could only have been on the basis that he intended to steal money, as the sentencing remarks note he did not enter the hotel room in question for the purpose of an assault or damage to property or to take other property.
Although in Argument Mr Allen raised the question of a claim as of right to that money, I am not in a position to determine that question and in any event that raises a defence.
By entering a plea to the charge of aggravated burglary in the circumstances alleged in the County Court of Victoria, Mr Brookes accepted each of the elements of the offence. Insofar as the burglary aspect is concerned, he pleaded guilty to entering a building with the intent to steal.[10]
[10] Sandery Affidavit, Sentencing Remarks, Exhibit EKS-5 [31], [50].
In Maxwell v The Queen, Dawson and McHugh JJ said:[11]
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence.
[11] (1996) 184 CLR 501, 510.
Further, in Meissner v The Queen Dawson J said:[12]
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence…
[12] (1995) 184 CLR 132, 157.
In my view, an offence which has one of its elements as an intent to steal is an offence of dishonesty.
As to Mr Allen’s submission that dishonesty is not an element of the offence of burglary, I accept that the word ‘dishonest’ does not appear in s 76 of the Crimes Act, however that does not detract from the position that in my view, an offence involving an intent to steal, although not described as dishonest or stating that there must be dishonesty, nonetheless is an act of dishonesty.
Accordingly, I find that Mr Brookes has been convicted of an indictable offence of dishonesty contrary to the provision s 9(1)(b)(i) of the Act.
Conclusion
The fact of Mr Brookes’ conviction of an indictable offence of dishonesty means that he is ineligible to be granted a Second-hand Vehicle Dealers Licence.
In the circumstances, I consider there are cogent reasons to depart from the Commissioner’s decision. I rescind the Commissioner’s decision not to grant Mr Brookes a Second-hand Vehicle Dealers Licence on the grounds he is not a fit and proper person and substitute for that decision a decision that Mr Brookes is not entitled to be granted a Second-hand Vehicle Dealers Licence on the basis that he has been convicted of an indictable offence of dishonesty contrary to s 9(1)(b)(i) of the Act.
In view of my decision as to Mr Brookes being convicted of an indictable offence of dishonesty, the remaining aspects of the appeal do not arise.
I dismiss the appeal.